SESHAYYA Vs. SEETHAYYA

JUDGEMENT

(1.) The plaintiff is the appellant in this second appeal. The suit was filed for a declaration that the defendants, who are father and sons, have no right to discharge water from their plot of land, marked 'B' in the plaint plan, through a vent way at the point X into the plaintiff's land marked 'A' and for a permanent injunction restraining the defendants from draining their water through the vent and a mandatory injunction directing the defendants to close up the vent. The case of the plaintiff was that the defendants' plot B was lower than his plot A and that water could not flow from plot B into plot A, and that on account of recent misunderstandings the defendants had effected a breach in the bund at the point X some three or four days prior to the suit. The defendants' plea was that on account of the natural lie of the land, the water from their plot B as well as from the plot D of the defendants' plan has been flowing eastwards and northeast. They stated that they have got a natural right to discharge drainage water from their land on the plaintiff's land and that they had also acquired such right by custom and prescription. The trial Court decreed the plaintiff's suit, while the lower appellate Court dismissed it.

(2.) There has been some amount of acrimonious exchange of criticism between the Subordinate Judge and the District Munsif which has tended to obscure the real point for decision in the case. The point for decision is whether the land belonging, to the defendants is on a higher level than the land belonging to the plaintiff and therefore water from the defendants' land would flow naturally to the plaintiff's land. This is a simple matter capable of easy ascertainment either by a commissioner or by the Court by a local inspection. Though two commissioners were appointed and the District" Munsif also went to inspect the spot, still there is no clear finding on. this point in the judgment of the learned District Munsif. The very fact that the plaintiff has come to Court with a suit for an injunction shows that the water from the defendants' land would, unless prevented by an order of Court and by the erection of some bund, flow naturally to the plaintiff's land. The finding of the lower appellate Court is to the effect that the level of the defendants'land is higher than that of the plaintiff's land and therefore water from the defendants' land would flow naturally to the plaintiff's land. Even on this finding Mr. M. Krishna Rao, the learned Counsel for the appellant, argues that since the right of the defendant is a natural right and not a prescriptive right as found by the lower appellate Court, there is no obligation on the part of the lower owner to submit to a discharge of water from the land of the upper owners through a particular channel and a particular vent way. He argued that the right of drainage belonging to the higher owner is only a right to drain water naturally falling in or flowing through his land in undefined channels and that the upper owner has no right to collect and canalise the water falling or flowing on his land and discharge it through a vent way on the land of the lower owner. Section 7 illustration (i) of the Indian EASEMENTS ACT, 1882 defines the right as follows:

(3.) The learned Advocate for the appellant relied upon the decision in Venkitaraya Aiyar v. Sankaran Embrandiri where the facts were wholly different. This is not a case Where the upper owner is seeking to introduce water which was foreign to the upper tenement and pass it on to the lower land nor is it a case where the owner of the lower land is compelled to submit to an artificial discharge of water from neighbouring lands. The position here is that the land is so located that water naturally rising or falling on the defendant's land has to flow by force of gravitation to the land of the lower owner. Therefore, the upper proprietor has a right to drain the water falling or arising in his land and the lower proprietor is under an obligation to receive the water so drained. The only limitation on the right of the upper proprietor is that he should not adopt such a system of drainage as to cause the drainage water to flow on his neighbour's land in an injurious manner. That the upper proprietor has a right to collect the water falling on his land in one body in the course of draining his land is recognised by the learned Judges in the case above cited when they quoted the observations of Lord Dunedin in Gibbons v. Lenfestey-. The matter, however, is made clear by the decision of the Full Bench in Sheik Hussain Sahib v. Subbayya, whtre it was held that the owner of land on a lower level to which surface water from adjacent land on a higher leyel natus rally flows is not entitled to deal with his lands so as to obstruct the flow of water from the higher land. In the course of his judgment Couts Trotter C. J. referred to the observations of Lord Dunedin in Gibbons v. Lenfestey (already referred to). The passage relied upon and relevant to the present context, is as follows: