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Patneedi Rudrayya v. Velugubantla Venkayya And Others
Factual and Procedural Background
The appellant–plaintiff owns Survey No. 159 in Village Vemulavada. Respondents 1 and 2 (defendants) own the adjoining northern field, Survey No. 158; Respondent 3 owns land still further north. South of the plaintiff’s land lies Survey No. 160 owned by his brother, beyond which run a man-made “parallel drain” and the natural Tulyabhaga drain (both west–east). According to the plaintiff, rain and flood waters from Surveys 160 and 159 naturally flow northward across Survey 158 into a north–south channel marked “EE” and, in ordinary times, on to the Tulyabhaga drain.
Shortly before suit, Respondents 1 and 2 erected an east–west bund (3'–8' high, 16' wide, about 1580' long) on their own land and dug trenches immediately to its south. The plaintiff alleged that these works blocked the traditional outflow, causing water to stagnate on his land, erode top-soil and damage crops. He sought a mandatory injunction to demolish the bund and fill the trenches, asserting a prescriptive/ customary right to discharge all water—including flood water—northward over the defendants’ land.
The trial court and the first appellate court (Subordinate Judge) found for the plaintiff. On second appeal, the Madras High Court reversed, holding that the floods were unusual, that the alleged custom dated only from 1924, and that water is a “common enemy” permitting each owner to protect himself. The plaintiff obtained special-leave and appealed to the Supreme Court.
Legal Issues Presented
- Whether the plaintiff had established, by immemorial user, an easementary right to discharge rain and flood waters from his higher land over the defendants’ lower land.
- Whether the defendants could lawfully obstruct that flow by constructing bunds and trenches under the “common enemy” doctrine relating to surface or flood water.
- Whether the High Court was justified in upsetting concurrent findings of fact made by the courts below regarding the antiquity and regularity of the flooding and drainage pattern.
Arguments of the Parties
Appellant / Plaintiff
- Rain and flood waters have, from time immemorial, flowed northward across Survey 158; the right to such drainage is founded on ancient custom and Section 7 illustration (i) of the Indian Easements Act, 1882.
- The defendants’ bund and trenches obstruct the established drainage, causing stagnation, soil erosion and crop damage on the plaintiff’s land.
- The flooding complained of is a regular, annual phenomenon, not an extraordinary or unusual event.
Respondents / Defendants 1 and 2
- The natural slope is north-to-south; water should flow towards the plaintiff, not away from him, making his grievance imaginary.
- Any flooding results from the Vakada drain’s vents being closed by third parties after 1924; it is not an ancient, customary occurrence.
- The bund was built only to protect their own fields from inundation; the law permits landowners to defend themselves against the “common enemy” of flood water, and the plaintiff can do likewise on his land.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nield v. London & North Western Railway (English Court) | “Common enemy” doctrine; nevertheless, no right to diminish a natural outlet for water or obstruct its natural course. | Used to show that even under the common enemy doctrine, a landowner cannot impede the natural flow of water; thus the defendants’ bund is wrongful. |
| AIR 1915 PC 165 (Guernsey case) | Adoption of civil-law rule that natural drainage courses cannot be altered to another’s prejudice. | Relied on to support the view that common law aligns with civil law in protecting established drainage rights. |
| Nelson v. Walker | Recognition in common law of the civil-law rule respecting natural surface-water drainage. | Cited to reinforce that English common law does not endorse an unrestricted “fight the water” approach. |
| (1828) 3 Bli (House of Lords) | A riparian owner may protect himself only against extraordinary floods, not impede ordinary natural flow. | Used to distinguish extraordinary floods from the regular annual floods found in this case, undermining the defendants’ defence. |
Court's Reasoning and Analysis
The Supreme Court found that the High Court had ignored explicit concurrent findings of fact by the trial and first appellate courts. Those findings established that:
- The land dips northward, forming a basin where water naturally accumulates.
- Surplus and flood waters have, for as long as living memory, flowed north through channel “EE” and, when Tulyabhaga is in spate, further north towards the Kongodu channel.
- Flooding of Surveys 153–160 occurs annually in the ordinary course of nature; it is neither abnormal nor recent.
Because the precise commencement of the drainage pattern could not be ascertained, the Court held that it must be treated as existing “from time immemorial.” Under Section 7 illustration (i) of the Easements Act, such prescriptive usage confers a right on the owner of higher land to discharge even flood waters onto lower land.
The High Court’s reliance on English authorities espousing the “common enemy” doctrine was misplaced. The cited texts and decisions themselves acknowledge that a landowner may not obstruct a natural watercourse or outlet. The defendants, by erecting a bund that blocked water descending by gravity from the plaintiff’s field, infringed this principle.
The Supreme Court further noted that English common law, as illustrated in Nield, AIR 1915 PC 165 and Nelson v. Walker, accords with civil-law doctrines forbidding interference with established drainage. As the floods here were customary and periodic, not extraordinary, the defendants could not lawfully bar their passage.
Holding and Implications
Appeal Allowed – Judgment of the High Court set aside; decree of the Subordinate Judge restored.
Direct Effect: Respondents 1 and 2 must demolish the bund and fill the trenches, thereby reinstating the established drainage path and preventing further damage to the plaintiff’s land. Costs throughout are to be borne by the defendants-respondents.
Broader Implications: While no new legal doctrine was created, the decision reaffirms that long-standing drainage of even flood water can ripen into an easement by immemorial user, and that the “common enemy” doctrine does not permit lower-land owners to obstruct such established natural flow.
Mudholkar, J.— This is an appeal by special leave from the judgment of the Madras High Court in a second appeal reversing the decrees of the two courts below.
2. The plaintiff who is the appellant before us is the owner of Survey No. 159 of Village Vemulavada while Defendants 1 and 2 are owners of Survey No. 158 lying to the north of Survey No. 159 and adjoining. Defendant 3 is the owner of a field lying to the north of Survey No. 158. To the south of Survey No. 159 is Survey No. 160 belonging to the brother of the plaintiff. Immediately beyond this field and to the south are a “parallel drain”, into which flow the waters of the Vakada drain, and Tulyabhaga drain both running west to east. It would appear that the parallel drain is an artificial drain while the Tulyabhaga is a natural drain. The parallel drain ends abruptly at the eastern end of Survey No. 150 at a distance of about two furlongs or so to the east of Survey No. 160.
3. According to the plaintiff' rainwater falling on Survey No. 160 and 159 flows in the northern direction over Survey No. 158 and then enters into a drain shown in the map and indicated by the letters EE. In normal times the water in this drain flows towards the south and empties itself in the Tulyabhaga drain. Sometime before the institution of the suit Defendants 1 and 2 constructed a bund running approximately east-west on their own land. Its height, according to the Commissioner, varies between 3' and 8' and its width is about 16'. Its length is reported by the Commissioner to be 1580'. Apparently the bund is not a continuous one and there are a few gaps in it. About 5' to the south of the bund the defendants had dug several trenches 15' in width and between 2' and 4' in depth. These trenches run along a footpath which separates the fields of the parties. The plaintiff's grievance is that as a result of what Defendants 1 and 2 have done flood water flowing from his field in the northerly direction cannot find an outlet and stagnates on his land thus doing damage to his crops. Further, according to him as a result of the digging of the pits the level of his land adjoining the footpath is gradually decreasing with the result that the top soil of his field is being washed away. He, therefore, sought a mandatory injunction directing the defendants to fill up the trenches and demolish the bunds raised by them. The plaintiff claims the right of drainage of all water falling on or invading his land including flood water on the basis of immemorial user.
4. The defence of the first two defendants was that the land actually slopes from north to south, that rainwater and flood water naturally flow from the north to the south and that the plaintiff's grievance is wholly imaginary. They deny the existence of immemorial user upon which the plaintiff rested his case. They admitted that flood waters do stagnate on the plaintiff's land. This, according to them, was a result of the closing of some vents in the Vakada drain by the ryots of that village as a result of which the water collected in that drain during heavy rains cannot find its natural outlet and floods the lands of a number of people including the plaintiff's. The bund erected by the defendants was, according to them to protect their lands from being inundated by the flood waters of the Vakada drain and that it was open to the plaintiff to do likewise by constructing dams at appropriate places in his field and thus keep back the flood waters of the Vakada drain.
5. Both the courts below arrived at the following findings of fact:
(1) The land dips in the northerly direction.
(2) That a number of fields including Fields Nos. 158, 159 and 160 lie in a sort of a basin with elevations along the eastern and western boundaries into which drainage and rainwater from all sides tends to accumulate.
(3) Ordinarily the surplus water from lands adjacent to the basin as well as rainwater falling on the land in the basin is drained off from north and then finds its way in the drainage channel EE which runs north-south and drains it into the Tulyabhaga drain.
(4) Whenever due to heavy rain Tulyabhaga drain is in spate the flood water which collects in the basin cannot flow through the channel EE and flows in the northerly direction towards another channel called Kongodu channel and that this is what has been happening from time immemorial.
(5) Whenever there is heavy rain the Vakada drain swells up and water therefrom floods Surveys Nos. 153 to 160.
(6) That this has been happening since time immemorial and that the defendant's contention that this is because of something done in recent times is not correct.
(7) That the inundation of the appellant's land in the further flow of water northwards is not unusual, abnormal or occasional due to extraordinary floods but is an event which occurs every year in the usual course of nature.
The High Court, however, came to the conclusion that the flooding of Fields Nos. 153 to 160 because of the swelling of the Vakada drain is not something which has been happening from time immemorial but only subsequent to the year 1924, that the flooding of these lands was not a usual and natural phenomenon but something unusual and that water being a common enemy of all, Defendants 1 and 2 were within their rights in constructing the bunds and digging trenches. According to the High Court the plaintiff had no right to prevent the defendants from taking the steps that they are taking and that a custom to allow flood water to flow over the neighbour's land has not been so far established.
6. We may mention here that the High Court had actually called for certain additional findings from the appellate court and one of the questions raised was whether there was an immemorial user as contended by the plaintiff to let out Vakada drainage water beyond certain points. In coming to the conclusion that the plaintiff has not been able to establish immemorial user in respect of the right claimed by him of draining of flood waters from his field on to the defendants the High Court has ignored the clear finding of the lower appellate court on this point. We find that there is no justification for the course adopted by the High Court.
7. In para 17 of its judgment it has observed as follows:
“It is well established on the evidence that from time immemorial flood water, as well as the surplus water, and the water from Vakada and Vemulavada, all collect and flow northwards through the cradle or basin in which the suit lands are situate, when the level of the water in Tulyabhaga is such as not to admit the flow of such water into it. It has been customary from true immemorial for the said water, under such circumstances, to go northwards from the plaintiff's fields onwards over the defendants' fields, and the further fields beyond.”
8. After remand the lower appellate court reiterated its conclusion and observed as follows in para 14 of its findings:
“On the evidence on record and for the reasons I have given above I am of opinion that the oral evidence either way is inadequate, but on such little evidence as available and on the probabilities of the case and relying upon the evidence of PW 4 and the clear indication of the existence of local drain Exhibit P-4, I would find that the Vakada drain water should have been getting into parallel drain and through EE and F into Tulyabhaga drain for a considerably long period of time, at least from somewhere about the year 1920.”
9. Earlier in its order the lower appellate court has observed:
“In my opinion the parallel drain should have existed at least from the year 1924, if not many years before that.”
10. It would thus be clear that even in the revised finding the appellate court has not been able to fix the precise year of commencement of the phenomenon. It would, therefore, follow that upon the evidence available in this case the proper inference to be drawn would be that this phenomenon has been known from time immemorial. A phenomenon is said to be happening from time immemorial when the date of its commencement is not within the memory of man or the date of its commencement is shrouded in the mists of antiquity. No doubt the lower appellate court has referred to the years 1920 and 1924 in its finding but it has not said that the phenomenon was observed for the first time in 1924 or even in 1920. It has made it quite clear that the phenomenon was known to be happening in these years and that it must have been happening for many years prior to that.
11. The basis of the plaintiff's claim is not the natural right of the owner of higher land to drain off water falling on his land on to lower lands but the basis is that this right was being exercised with respect to the land of Defendants 1 and 2 from time immemorial. The finding of fact of the lower appellate court being in his favour on this point his suit must succeed.
12. The High Court, following certain English decisions, came to the conclusion that water being the common enemy, every owner of land had a right to protect himself against it and in particular to protect himself from the ravages of such unusual phenomenon as floods. Some of the cases upon which the High Court has relied deal with the rights of riparian owners and are thus not strictly appropriate.
13. The High Court seems to be of the opinion that the floods, as a result of which the plaintiff and the defendants suffer damage, are an unusual phenomenon. Here again, the High Court has gone wrong because the lower appellate court has found that these floods were a usual occurrence. Where a right is based upon the illustration (i) to Section 7 of the Indian Easements Act, 1882 (5 of 1882), the owner of higher land can pass even flood water received by him on to the lower land, at any rate where the flood is a usual or a periodic occurrence in the locality. The High Court has quoted a passage from Coulson and Forbes on Waters and Land Drainage and a passage from the judgment in Nield v. London & North Western Railway in support of its conclusions. In the passage in Coulson & Forbes it is stated that the owner of land must not take active steps to turn the flood water on to his neighbour's property. Here, the dam erected by Defendants 1 and 2 stems flood waters going from plaintiff's land down to the defendant's land and so the passage does not support the conclusion of the High Court. The decision in Nield case is further based on the “common enemy” doctrine. In that case also there are certain observations which would militate against the conclusion of the High Court. For instance: “Where, indeed, there is a natural outlet for natural water, no one has a right for his own purposes to diminish it, and if he does so he is, with some qualification perhaps, liable to any one who is injured by his act, no matter where the water which does the mischief came into the water course.” Of course, the court in that case was dealing with water flowing along a natural water course. But the point is whether a person has a right to create an impediment in the flow of water along its natural direction. Now the water on a higher ground must by operation of the force of gravity flow on to lower ground. Where the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlet for that water. It makes little difference that the water happens to be not merely rainwater but flood water provided the flood is of the kind to which the higher land is subjected periodically.
14. In England the early extension of the common drains all over the country under the supervision of the Commissioners are of Sewers has rendered a discussion on the rights of flow of surface water needless and, therefore, there are no modern decisions upon the question. But old precedents show that the common law rule appears to be the same as that under civil law. In a case arising in Guernsey AIR 1915 PC 165 the Privy Council has applied the rule of civil law to that island. That this is adopted by the common law would appear from the decision in Nelson v. Walker.
15. The rule of civil law according to Domat is quoted thus at p. 2586 of Waters and Water Rights, Vol. III, by Farnham:
“If waters have their course regulated from one ground to another, whether it be the nature of the place, or by some regulation, or by a title, or by an ancient possession, the proprietors of the said grounds cannot innovate anything as to the ancient course of the water. Thus, he who has the upper grounds cannot change the course of the waters, either by turning it some other way, or rendering it more rapid, or making any other change in it to the prejudice of the owner of the lower grounds....”
The learned author, after a discussion of old English cases on the point, has stated that the common law regarded the flow of rainwater along natural courses as one of its doctrines and that there is no general right thereunder to fight surface water as a common enemy. The author has then observed:
“All rightful acts with regard to it are confined within very narrow limits which have not yet been fully defined. And to state generally that such water is a common enemy, or that there is a right to fight it at common law, cannot be otherwise than misleading.” (p. 2590).
After discussing a number of precedents from the American State Courts he has pointed out that the common enemy doctrine is of very recent origin he has observed at p. 2591:
“That surface water is not a common enemy, and that there is no right to fight it according to the pleasure of the landowner, clearly appear from the principles which have already been stated.”
We must, therefore, distinguish between cases pertaining to riparian lands and cases like the present. But as pointed out in Nield case the only right which a riparian owner may have is to protect himself against extraordinary floods. But even then he would not be entitled to impede the flow of the stream along its natural course (1828) 3 Bli. We may repeat that the finding here is that the floods from which Defendants 1 and 2 are seeking to protect themselves are not of an extraordinary type. In the circumstances, therefore, the bund erected by them and the trenches dug up by them must be held to constitute a wrongful act entitling the plaintiff to the reliefs claimed by him. For these reasons we allow the appeal, set aside the judgment of the High Court and restore that of the Subordinate Judge. The costs throughout will be borne by the defendants-respondents.
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