SMT. ANGURI & ORS versus JIWAN DASS & ANR.

Citation: [1988] SUPP. 2 S.C.R. 736 · Decided: 30-08-1988 · Supreme Court of India · Bench: M.H. KANIA · Disposal: Dismissed

Judgment (excerpt)

A 
SMT. ANGURI & ORS. 
I
v. 
JIWAN DASS & ANR. 
AUGUST 30, 1988 
B 
[M.H. KANIA AND K. JAGANNATHA SHETTY, JJ.] 
Indian Easements Act, 1882: Section 23-Dominant owner 
entitled to alter mode and place of enjoying easement provided no addi· 
tional burden imposed-Held opening of nine marries in place of three 
has damaged the properties. 
c 
• 
The respondents are the owners of two houses adjacent to each 
other and also to the property of the appellants. From the roof of the 
appellants' structure three morries (narrow outlets) opened towards the 
property of the respondents. Subsequently, the appellants raised the 
• 
height of their existing structure and constructed two additional storeys 
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on it. At the same time, the appellants after blocking the three original 
morries opened nine new morries, three on each floor. The appellants 
also opened new windows. The respondents however blocked these 
windows by raising the height of their walls. 
The respondents tiled suits praying for a permanent injunction 
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restraining the appellants from using the new morries and from remov-
ing the obstruction to the windows. The Sub-Judge granted the injunc-
tion. The appellants' appeals before the District ·Judge and the High 
Court failed. 
Before this Court the appellants contended that (I) that the owner of 
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an easement was entitled to alter the mode and place of enjoying the 
easement and (2) no customary right of privacy had been pleaded or 
proved by the respondents. 
"
Dismissing the appeal, it was, 
HELD: (1) Section 23 of the Indian Easement Act, 1882 provides 
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that the dominant owner may, from time to time, alter the mode and 
place of enjoying the easement provided that he does not thereby 
impose any additional burden on the servient heritage. In this case 
the burden of easement had been increased by the action of the 
appellants. [739E-G] 
H 
[Harvey v. Walters, [1872-73] L.R. 8 C.P. 162, distinguished.] 
736 
SMT. ANGURI v. JIWAN DASS (KANIA, J.] 
737 
(2) The condnct of the defendants in opening nine morries In the 
place of three morries and thereby damaging the properties of the 
respondents is such that no discretion need be exercise<!. in their favo11r 
by allowing them to raise the issue for the first time that the three 
morries on the first storey merely constitute a change in the mode or 
place of enjoyment of the easement. [7408-C; 739G-HJ 
(3) The appellants cannot be restrained from opening new 
windows, as no customary right of privacy appears to have been 
pleaded or proved. At the same time, the respondents are fully entitled 
to block the same and the appellants are not entitled to remove the 
obstruction. [740G-H] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 532 
of 1986. 
From the Judgment and Order dated 6.9.1985 of the Punja\l and 
Haryana High Court in R.S.A. No. 1786 of 1985, 
B.R. Iyengar and N.K. Agarwala for the Appellants. 
Ms. Lilly Thomas for the Responclents. 
The Judgment of the Court was delivered by 
KANIA, J. The Appellants before us were the defendants and 
-· 
the two Respondents were the plaintiffs in the Civil Suits Nos. 294 of 
1979 and 421 of 1979 respectively, in the court of the leamed Sub-
Judge, Palwal. Both these suits raised common questions of fact. and 
ia,w and were decided by a common judgmeot. 
We shall refer to the parties by their original descriptions in the 
suit. There is no controversy about most of the facts relevant for the 
disposal of this Appeal. 
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B 
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F 
The plaintiffs are the owners of two houses adjacent to each 
other and also to the property of the defendants. The defendants had a G 
structure on their own property. On the roof of that structure they had 
made three morries (narrow outlets for the outflow of dirty water). 
These marries opened towards the property of the plaintiffs. In an 
earlier suit, tile defendants had obtained an injunction clirecti.J1g the 
plaintiffs not to block the flow of dirty water from the said three 
morries. The defendants were, however, permitted to fix up,pipe lines 
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738 
SUPREME COURT REPORTS 
[1988] Supp. 2 S.C.R. 
of a suitable size at their own costs to receive the said water and carry 
it to a nali (drain) towards the East of their houses. The plaintiffs 
complied with the terms of the decree granting the said injunction. 
The defendants then raised the height of the first floor of their 
structure by three feet and on a part of the terrace over the first floor

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