NATABAR SASMAL Vs. KRISHNA CHANDRA BERA

JUDGEMENT

(1.) This is an appeal on behalf of the defendants, and arises out of a representative suit commenced under the provisions of Order 1, Rule 8, Civil P.C., on behalf of the inhabitants of a group of four contiguous villages which may be collectively referred to as Bandipur. These villages lie on the eastern side of a khal, flowing north to south, and the object of the suit is to restrain the discharge of surplus rain water from the defendants mouza, Bamunkhana on the other side of the khal on and to the plaintiffs lands in these villages which are admittedly at a lower level. It is not known when, by whom and in what circumstances the khal was excavated, but it is not disputed that this served as a channel for draining off the surplus rain water from the defendants mouza. On their side of the khal, the plaintiffs had constructed a bund or embankment to protect their lands from over-flooding. The khal finally discharged itself into a river called Jhumjhumi towards the south through a sluice-gate which was located in mouza Harisingpur. Latterly, the khal appears to have silted up, and presumably because this caused an obstruction of the defendants drainage, the defendants, it is alleged, wrongfully caused an opening to be made on or about 29 November 1938, in the plaintiffs bund at a point "G" in order to provide an outlet for their surplus water. The plaintiffs closed up the opening, and then instituted the present suit, challenging what they regarded as an unlawful invasion of their rights by the defendants. They asked for a declaration of their title and for a permanent injunction against the defendants. The defence was that the people of Bamunkhana had an indefeasible right to discharge their surplus water over the Bandipur lands through the opening in the plaintiffs bund, and the defendants sought to support this right on a variety of grounds. They claimed the right, in the first place, by prescription and immemorial user; secondly, as an easement of necessity; and thirdly, as a natural right incident to their ownership of lands situated at a higher level. The learned Munsif of Arambagh who heard the suit in the first instance found against the defendants on the question of prescription and immemorial user, but held in their favour on the other two grounds, and in the result dismissed the suit. On appeal, the learned Subordinate Judge of Hooghly reversed the decision, negativing the case of the defendants on all points. It is against his judgment and decree that the present appeal has been preferred.

(2.) In this Court, the arguments have centred mainly round the question of natural right claimed by the defendants. As regards their claim on the basis of a right acquired by prescription or immemorial user, no serious attempt has been made to challenge the findings of the lower appellate Court, and it must be held that the defendants have failed to establish this part of their case. Their case as regards an easement of necessity is equally untenable. As the learned Subordinate Judge points out, there had been some previous proceedings, culminating in a suit in 1932, between the inhabitants of Bamunkhana and those of another village south of Bandipur called Banharisingpur, in which the defendants had asserted a right to discharge their surplus rain water over the lands on the other side of the khal, but this they had claimed to do through some openings in the bund at Banharisingpur, and not through the present disputed opening at Bandipur. Further, having regard to the fact that the defendants water used to be drained away by the khal, I do not think the mere silting up of the khal could give rise to an easement of necessity in favour of the defendants, even if it was shown that they had no other means of outlet for this water at present. It was certainly up to them to have taken steps to keep the khal clear of silt. The learned Munsif seemed to think that the liability in this respect was that of the plaintiffs, but this was based on a pure surmise on his part, unsupported by evidence, that the site of the khal was originally the property of the plaintiffs, and that the plaintiffs must have made this excavation to get their supply of earth for the bund they erected. The question of natural right remains, therefore, the main contention in the appeal, but before dealing with this, it is necessary to dispose of certain preliminary points which were raised on behalf of the appellants.

(3.) It was contended in the first place that a representative suit of this nature was not maintainable. It is difficult, however, to appreciate the objection. The suit satisfies all the requirements of Order 1, Rule 8, Civil P.C., and one fails to see how any infirmity attaches to it by reason of its representative character. The cause of action is no doubt ultimately dependent on ownership of land, but merely because the lands which are alleged to be threatened by the defendant's action belong to different owners, I do not think it can be said that there is not such a community of interest among the plaintiffs in respect of the cause of action or the relief claimed as will support such a suit. In my opinion, a representative suit is quite in order in the circumstances of the case.