16.The plaintiff's counsel relies upon the decision of the apex court reported in AIR 1962 Supreme Court 182[ Patneedi Rudrayya Vs. Velugubantla Venkayya and others] and contended that in the light of the lie of the lands, the plaintiff is entitled to claim the aforesaid relief. It is contended by the plaintiff's counsel that considering the lie of the lands of the respective parties and as the lands of the plaintiff are lying on upper level than the lands of the defendant naturally, the water falling on the lands should be allowed to be drained into the lands lying low and in this connection he also seeks the support of the illustration, I given in Section 7 of in the Indian Easement Act. No doubt, as per the said illustration, the plaintiff would be entitled to the natural advantages of the position of the lands for draining the excess water falling on his lands through the branch canal. However, for enforcing the said right, the plaintiff cannot be permitted to lay a new pipe cutting across the suit cart-track and thereby claim the easementary right over the same as if the said right had been used by the plaintiff and his predecessors in interest from time immemorial. It is found that the plaintiff cannot be permitted to take the above said illustration to his advantage and seek the reliefs claimed in the plaint without establishing his entitlement of easementary right to drain the excess water through the newly formed pipe laid at “JK” point as reflected in Ex.C2. The Advocate Commissioner had also inspected the property concerned for the second time and in the second plan of the Commissioner marked as Ex.C4, it is seen that the plaintiff is having access for draining the seepage water at point “K” and therefore it is seen that as rightly determined by the Courts below, the plaintiff under the guise of draining the seepage water cannot be allowed to form a new pipe across the suit carttrack. As rightly found, P.W.2 is also unable to state clearly about the existence of the new pipeline laid by the plaintiff for draining the excess water through the branch canal and in such view of the matter, the Courts below are justified in not granting the reliefs of easement right and permanent injunction as sought for by the plaintiff with regard to the drainage of the excess water into the lands of the defendant as claimed in the plaint.
