JUDGMENT
1. The plaintiff and defendants are conterminous landholders engaged in agriculture, the former owning the upper, and the latter the lower land. The plaintiff alleges that the defendants, who are the owners of the adjacent lower land, have erected a bund or wall which has the effect of preventing the water that fell on his (that is, the plaintiff's) land from flowing to the defendants' land as it has been doing from time immemorial. The Subordinate Judge was of opinion that he was bound to dismiss the plaintiff's claim in accordance with the Mahamahopadayya Rangachariar v. The Municipal Council of Kumbakonam(1) and Sangana Reddiar v. Perumal Reddiar(2). He pointed out however that
“these rulings are real impediments to punja cultivation which would be impossible if the adjoining owners put up ridges and pen back water on a man's punja. The configurations of punjas in the country have not provided every man's punja with an odai or watercourse. The right of drainage for punja is a right of necessity. The rulings in question, no doubt, leave out of consideration the inconvenience pointed out above.”
2. But as he was bound to follow the decisions, he dismissed the plaintiff's claim observing that the hardship, if any, is a matter for the legislature to consider and not for the Courts.
3. The right of the owner of an upper land to let his water run naturally into the adjacent lower land is a natural right. It has been recognized by his Court in Subramanyia Ayyar v. Ramchandra Row(3) and in a series of decisions by the Calcutta High Court, which are referred to in Abdul Hakim v. Gonesh Dutt(4). See also Illus. (i), Section 7 of the Easements Act. The English law on this point is stated in Kerr on Injunction, 4th Edn p. 195, in the following terms:
“When land is so located that water naturally or in the course of ordinary agricultural operations, such as by deep ploughing, descends from the estate of the superior proprietor to the inferior estate, the owner of the latter cannot do anything to prevent the course of such water. If he build a wall at the upper part of his estate so as to prevent the water from descending on it, whereby the land alone is damaged, there is an actionable injury. The owner of land lying on a lower level is subject to the burden of receiving water which drains naturally or in the course of ordinary agricultural operations, such as by deep ploughing, from land on a higher level. The upper proprietor may drain his land, and the proprietor below must receive the water so drained; but the upper proprietor may not, by adopting a particular system of drainage or by introducing alterations in the mode of drainage, cause the drainage water to flow on his neighbour's land in an injurious manner, or obstruct the drainage of other lands by over loading the ancient drains with water.”
4. This is also in accordance with the civil law by which it was considered that land on a lower level is under a natural servitude to that on a higher in respect of receiving, without claim to compensation, the water naturally flowing down to it”: see Smith v. Kenrick(5).
5. It was argued before us on behalf of the defendant that the result of applying this principle would be to prevent the defendant from ever improving his land. It may be pointed out however that if the principle is not recognized, as pointed out by the Judge, it may prevent the plaintiff from carrying on his cultivation in the usual manner. It has also to be remembered that though the principle is to be maintained it has to be prudently applied as pointed out in Kerr on Injunctions. Whether in any case the owner of the upper land has exceeded his right must be determined upon the facts of each case. The decision of Mahamahopadyya Rangachari v. The Municipal Council of Kumbakonam has no application. In that case, there was no damage caused to the plaintiff, whereas the Subordinate Judge finds in this case that the bund put up by the defendant will have the effect of seriously interfering with the plaintiff's cultivation of his punja land. Moreover in that case there was a conflict of rights. The natural right of the plaintiff was in conflict with the right of the defendant [see Illus. (a), Section 7 of the Easements Act] to build on his land, which was in a town. There is no such natural right of the defendant in the present case. Both the learned Judges who decided that case make special reference to this right of the owner of the lower land. We are therefore of opinion that case does not apply. The case reported as Sangana Reddiar v. Perumal Reddiar apparently refers to land which does not lie within the municipality, but the learned Judges, who decided it, following the ruling reported as Mahamahopadyaya Rangachariar…(Plaintiff) v. The Municipal Council Of Kumbakonam…(Defendant) .* without recognizing the distinction which we have adverted. We are therefore of opinion that the plaintiff is entitled in Second Appeal No. 1266 of 1911 to an injunction against the defendant from interfering with the exercise of his natural right. He is entitled to his costs throughout.
6. It was then argued before us in Second Appeal No. 1267 of 1911 that the plaintiff has erected a bund which would result in increasing the volume of water which would flow to the defendant's land. On this question the Subordinate Judge has given no finding. As we have already pointed out, whether the burden has been appreciably increased or not, is a question of fact which must be determined in each case. It is not the law that the owner of the upper land may not interfere with the flow of water at all. But he is not entitled to do anything that will throw on the defendant's land any water which would not have naturally gone there. See the quotation supra from Kerr on Injunctions and Hughes v. Anderson(6).
7. The decree of the Courts below is reversed, the Subordinate Judge will restore the appeal to his file and dispose of it in accordance with the above observations. The appellant is entitled to his costs in this Court. The costs in the lower Courts will be disposed of by the final decree.
S.N/R.K
8. Decree reversed.