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Sami-Ullah v. Makund Lal
Court Opinion Summary — Lahurapur v. Kondari (1916 flood; embankment breach)
Factual and Procedural Background
A pond called Bir Bundh lies in village Lahurapur (plot No. 4810). To the north of the pond is land of Lahurapur; to the south are plots belonging to village Kondari. The embankment on the north side of the pond had existed since before the last settlement (more than 40 years).
In February 1916 the owners of Lahurapur were alleged by Sami-ullah (owner of Kondari) to have raised the embankment and thereby wrongfully obstructed the pond's overflow, causing flooding and damage to lands of Kondari and Nasirpur. Sami-ullah sued for an injunction to remove the raised portion and to restrain further obstruction.
The owners of Lahurapur (Makund Lal and Mathura Das) counterclaimed, alleging that during the 1916 flood Sami-ullah and his tenants had wrongfully cut a portion of the north embankment, diverting the pond's water onto Lahurapur lands and destroying paddy crops. They sought an order directing the owner of Kondari to repair and restore the embankment, an injunction preventing further interference, and damages (claimed at Rs. 1,200).
The trial court found that Sami-ullah and his tenants had cut the embankment but did not find proved damage to the north-side crops; it also found Lahurapur had not raised the embankment. The trial court dismissed Sami-ullah's claim and granted Lahurapur the repair and injunction relief. On appeal the District Judge largely upheld the trial court but found damages established to Rs. 1,050 and awarded Lahurapur Rs. 400.
The matter reached the court whose opinion is summarized here, addressing whether Kondari's owners/tenants had any right to cut the embankment to protect their lands in the extraordinary 1916 flood and reviewing the damages award.
Legal Issues Presented
- Whether, on the facts found, the owner and tenants of the village Kondari had a right to cut the embankment to protect their lands from the extraordinary flood of 1916.
- Whether the damages awarded by the lower appellate court (Rs. 400) to the owners of Lahurapur were appropriate given the factual findings (about 100 bighas of paddy destroyed and an assessed landlords' half-share of Rs. 1,050).
Arguments of the Parties
Sami-ullah (plaintiff)
- Alleged that in February 1916 the owners of Lahurapur raised the embankment to prevent the pond's water from overflowing towards Lahurapur land, wrongfully causing serious loss to Kondari and Nasirpur lands by obstructing flow.
- Prayed for an injunction to remove the raised portion and to restrain further interference with the pond's natural flow.
Owners of Lahurapur (Makund Lal and Mathura Das) — cross-claimants
- Asserted that Sami-ullah and his tenants wrongfully cut a portion of the north embankment during the 1916 flood, diverting water onto Lahurapur lands and destroying paddy crops there.
- Sought an order directing Kondari's owner to repair and restore the embankment, an injunction against future interference, and damages (claimed Rs. 1,200).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Whalley v. Lancashire and Yorkshire Railway Co. | Even if a landowner's action to protect his property from an extraordinary flood is reasonably necessary and not negligent, he has no right to protect his land by transferring the mischief to another's land; doing so makes him liable for resulting injury. | The court applied this principle to hold that Kondari's owner/tenants, by cutting the embankment and diverting water onto Lahurapur land, could not justify the act as protection of their property and were therefore liable for the injury caused. |
| Ram Lal Singh v. Lill Dhary Muhton | Where a person has a prescriptive right to maintain a bund with outlets for excess water and uses reasonable precautions, he is not liable for damage from escape/overflow if caused by act of God/vis major; cutting a bund in such circumstances is not permitted. | The court relied on this authority to emphasize that the Lahurapur bund had been maintained for the prescriptive period and thus Kondari's owner had no right to interfere with it; Kondari could not defend the breach by invoking extraordinary flood alone. |
Court's Reasoning and Analysis
The court proceeded from the factual findings: the embankment was old and prescriptive (in existence since settlement), and the owners of Lahurapur had not raised or otherwise altered it. The court found the owner and tenants of Kondari had made a breach in the embankment which resulted in water being diverted onto the lands north of the embankment and damaging paddy crops.
The court applied established principles governing watercourses and flood protection:
- It noted the general rule that, with a natural outlet for a natural stream, one cannot lawfully divert or interfere with its flow to the prejudice of another; doing so typically creates liability.
- Relying on Whalley v. Lancashire and Yorkshire Railway Co., the court held that even if cutting the embankment had been intended to protect Kondari property, Kondari could not lawfully protect itself by transferring the mischief to Lahurapur land; liability follows from causing injury by diversion.
- The court recognized that a landowner's right to protect property from extraordinary flood extends only to actions reasonably necessary to save his property and not to actions that divert the harm to others.
- Relying on Ram Lal Singh v. Lill Dhary Muhton, the court observed that a prescriptive bund maintained with reasonable care shields the owner from liability only when overflow is due to vis major; but that principle did not permit others (Kondari) to cut the bund.
On damages, the court reviewed factual findings that about 100 bighas of paddy were destroyed and accepted the District Judge's estimate that the landlords' half-share of that produce equated to Rs. 1,050. The court found the lower appellate court's reduction to Rs. 400 unsupported by reasons and therefore concluded the larger sum should be awarded.
Holding and Implications
HOLDING: The appeals (S.A. Nos. 295, 296 and 297) are dismissed and the cross-objection by Makund Lal and Mathura Das in S.A. No. 296 of 1919 is allowed so far as to decree Rs. 1,050 as damages (with proportionate costs here and below) in addition to the other reliefs previously granted by the court below. The decree is modified accordingly.
Implications:
- Direct effect: The owner and tenants of Kondari are held liable for having wrongfully cut the embankment and thereby causing damage; they must repair and restore the embankment and are ordered to pay Rs. 1,050 damages to the owners of Lahurapur, plus costs, in addition to the injunctive and reparative relief already granted.
- No new legal principle was created; the court applied existing authorities (cited cases) to the facts and modified the damages award consistent with those findings.
Decree modified as stated in the opinion.
Lindsay and Kanhaiya Lal, JJ.:— In the village Lahurapur there is a pond called Bir Bundh situated in plot No. 4810. On the north of this pond is some land belonging to the village Lahurapur. On the south of this pond are Borne plots belonging to the village Kondari. Makund Lal and Mathura Das are the owners of the village, Lahurapur. Sami-ullah is the owner of the village Kondari. In the rainy season when the pond is over-flooded a portion of the surplus water flows through a drain round the north and west, of mauza Lahurapur, and the remaining surplus water flows towards the East through an old drain situated in the village Pipnar. In order to protect their land from damage the former owners of the village Lahurapur constructed an embankment on the north of this pond, some time prior to the last settlement. The allegation of Sami-ullah was that in the month of February, 1916, the owners of the village Lahurapur raised this embankment in order to prevent the water of the pond overflowing towards their land, that the said act was wrongful and caused serious loss to a considerable area of land appertaining to the villages of Kondari and Nasirpur, which consequently became submerged on account of the flow of water being obstructed. He accordingly sued for an injunction requiring the owners of the village Lahurapur to remove within certain time the raised portion of the embankment and to refrain from thereafter doing anything to stop the flow of the water of Bir Bundh pond towards the north. The owners of the village Lahurapur filed a cross-claim, alleging that during the flood of 1916 Sami-ullah and his tenants had wrongfully cut a portion of the old embankment, situated on the north of the pond, and by so doing directed the current of the water of that pond to flow towards the culturable land lying on the north and east of mauza Lahurapur, thereby destroying the paddy crops that stood there. They consequently asked for an order directing the owner of the village Kondari to repair the embankment at his own cost and to restore it to its original condition. They further prayed for an injunction restraining him from thereafter cutting the embankment or from making any interference with it. They also claimed Rs. 1,200 as damages.
The court of first instance found that Sami-ullah and his tenants had wrongfully cut the embankament in order to divert the water towards the lauds situated on the north of the embankment, but it was not satisfied that any damage had been caused to the crops growing on the lands situated on that side. It further found that the owners of the village Lahurapur had not raised the embankment or done anything to disturb the flow of the water in any manner. It accordingly dismissed the claim of Sami-ullah and decreed the claim of the owners of the village Lahurapur for an injunction requiring the owner and tenants of the village Kondari to repair the breach made by them and restraining them from thereafter cutting the embankment or interfering with it in any manner. On appeal the learned District Judge upheld the findings of the trial court except in regard to the claim for damages, which, he found, was established to the extent of Rs. 1,050; but he gave a decree to the owners of the village Lahurapur for damages to the extent of Rs. 400 only.
The question for consideration in these appeals, is whether on the facts found the owner and tenants of the village Kondari had any right to cut the embankment in order to protect their own lands from the extraordinary flood which took place in the year 1916. It is admitted that the pond in question is an old one and that the embankment has been in existence from the time of the last settlement, that is to say, for more than 40 years. It was found by the court below that the owners of Lahurapur had done nothing to raise the height of the embankment and that if the owner of the village Kondari had not made a breach in the embankment, the damage to the paddy crops standing on the north of the embankment might possibly have been avoided. It is well established that where there is a natural outlet for a natural stream, no one has power, for the safety of his own property, to divert or to interfere with its flow, and if he does so, he is ordinarily liable to pay to any one who is injured by his act, no matter how the water before the mischief came into the watercourse.
The owner of the village Kondari here diverted the water, which might otherwise have flowed either into the lands on the south or through the drains which run towards the north-west and the south-east into other lands. By cutting a breach in the embankment, the owner of the village Kondari caused injury to the crops which stood on the north of the embankment, and the very object with which the embankment must originally have been constructed was thereby frustrated.
In Whalley v. Lancashire and Yorkshire Railway Co. the circumstances were somewhat simitar. There by reason of an unprecedented rainfall a quantity of water was accumulated against one of the sides of the defendants railway embankment, to such an extent as to endanger the embankment, when, in order to protect their embankment, the defendants cut trenches in it by which the water flowed through, and went ultimately on to the land of the plaintiff, which was on the opposite side of the embankment and at a lower level, and flooded and injured it to a greater extent than it would have done, had the trenches not been cut. In an action for damages for such injury, the jury found that the cutting of the trenches was reasonably necessary for the protection of the defendants' property and that it was not done negligently. It was, however, held by the court of appeal that though the defendants had not brought the water on, their land, they had no right to protect their property by transferring the mischief from their own land to that of the plaintiff, and that they were therefore liable.
The right of a person to protect his land from extraordinary flood extends to the doing of anything which is reasonably necessary to save his property; but he cannot actively adopt such a course as might have the effect of diverting the mischief from his own land to the land of another person which would otherwise have been protected. The owner of Kondari in the present instance, acting through his tenants, cut the embankment probably with the object of protecting his own land, but its effect was to transfer the mischief by diverting the flow of water towards the land situated on the north of the pond, and as he is found to have been acting in concert with his tenants in making the breach, he has been rightly held to be responsible for the damages caused thereby to the owners of Lahurapur.
In Ram Lal Singh v. Lill Dhary Muhton it has been laid down that where a person shows a prescriptive right to maintain a bund which had certain outlets for excess water, and uses all reasonable and proper precautions for its safety, he cannot be made liable for damage caused by the escape or overflow of water on to the lands of others and the consequent injury of the crops thereon, if the escape or overflow was caused by the act of God or vis major; and a cutting of the bund in those circumstances cannot be permitted.
The bund in the present instance was maintained by the owners of Lahurapur and, as it had been in existence for the prescriptive period, the owner of the village Kondari had no right to interfere with it.
The amount of damages awarded by the learned District Judge seems, however, to have been arbitrarily fixed. According to his own finding, about 100 bighas of paddy crops were destroyed by the act of the owner of the village Kondari and his tenants. The produce of that area, according to the estimate of the learned District Judge, was to the extent of the half share to which the landlords were entitled, i.e, Rs. 1,050. The lower appellate court has given no reasons for awarding a smaller sum.
We dismiss S.A Nos. 295, 296 and 297, with costs, accordingly and allow the cross-objection filed by Makund Lal and Mathura Das in S.A No. 296 of 1919 in so far that we decree the claim for Rs. 1,050 damages, with proportionate costs here and in the courts below, in addition to the other reliefs which the court below has granted.
Decree modified.
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