GUHIRAM GOPE Vs. UDAY CHANDRA GHOSAL

JUDGEMENT

(1.) The dispute in this case centres round the accumulation of water on the land of the defendants near the western edge of a tank in village Kherbara and its escape towards the plaintiffs' field in plot No. 707 on the south giving rise to the injury to its north-western al. This tank is recorded in the survey record-of-rights as plot No. 871 and is generally known as Puran Bundh. Originally, it belonged to one Sashi Bhusan Rai but in the year 1338 B.S. Sashi Bhusan Rai sold it to the defendants. The slope of the tank is on one side from west to east and on the other from south to north. The northern and eastern portions of the tank are, therefore, deeper than those on the south and west, and it is this latter part of the plot which is the watery portion of the tank. So far as the western portion of the plot is concerned, that is much above the bed of the tank and is, therefore, described as its agal portion. The tank is fed by two water channels in plot Nos. 861 and 867. The former is on its south-western corner and the latter further north from the former. The overflow, if any, in the tank, drains itself out through a pyne in plot No. 934 which lies on its north-eastern corner. But the case of the defendants is that it has one more outlet and that is in plot 914 on its north-eastern side. Immediately on the south-western corner of the tank is the agricultural holding of the plaintiffs in plot No. 707. This plot on its north has an al made by the plaintiffs which runs just on the south of the tank from west to east. Similarly on the western side of the plot there is a brick ridge made by the plaintiffs which runs from south to north.

(2.) Further, it appears that plot No. 871, as it now stands, is divided into two parts, the agal portion on the west and the watery portion of the tank on the east by means of an al running from north to south. It commences on the north from the southeren portion of plot No. 914 and goes right up to the plaintiffs' plot No. 707 and joins its northern al.

(3.) The case of the plaintiffs is that this al was constructed about 5 or 7 years ago and originally it did not touch the plaintiffs' plot but there was a gap left between them which was about 30 cubits in length. Therefore despite the obstruction caused by this al to the general flow of the water from the west to the tank on the east, there was still a passage left through the gap by which the water even after accumulation by the side of the al on its west could finally flow into the watery portion of the tank. Subsequently, however, this gap, it is said, was reduced to 15 cubits and was thereafter closed altogether sometime in the month of Jeth 1364 B.S. with the result that since then the water that accumulates in the agal portion due to the aforesaid al cannot flow into the tank and rushes towards the paddy field of the plaintiffs on its south-western corner. The grievance of the plaintiffs is that as a result thereof the north-western portion of the northern al has been to the extent of 10 to 15 cubits completely washed away and sand has been deposited in the field. Hence the suit for the declaration that the defendants have no right to put obstruction to the natural flow of water towards east and to divert the same towards the plaintiffs' plot No. 707. Further, there is also a prayer made for permanent injunction restraining the defendants from putting any other al within the tank and for a direction to remove the obstruction already caused in the flow of the water from the east to the watery portion of the tank on the west.