V E N K R M A VENKATACHALAM CHETTIAR Vs. GAURIVALLABA THEVAR,MINOR ZAMINDAR OF SIVAGANGA, BY MRSNAGASAWMI IYER, MANAGER UNDER THE COURT OF WARDS

JUDGEMENT

(1.) The plaintiff's Inam village and the first defendant's Zamindari village are irrigated by a common tank. As found by both the lower courts, the surplus water of the tank has from time immemorial been discharged through a weir and the water thus discharged passes over some of the lands of both the parties and eventually escapes through a channel separating the two villages. It is further found that if the plaintiff puts up the bund which he proposes to construct in order to save from inundation the portion of his property hitherto affected by the flow of the surplus water, such bund would throw back upon the defendant's land more water than has customarily flowed on to his property and increase the damage to which he has been hitherto subject.

(2.) In these circumstances there can be no doubt that the lower courts were right in refusing to grant the injunction prayed for by the plaintiff, to restrain the defendants from interfering with the erection of the proposed bund.

(3.) Assuming the plaintiff: was entitled to protect his land from inundation by erecting a bund, it would by no means follow that the court would grant an injunction in his favour when there has been nothing more than mere assertions on the one hand and denials on the other as to the right of the plaintiff to raise it; It is, however, unnecessary to say more on this point as the plaintiff has clearly no right to raise any bund in the way proposed1 by him. Now, having regard to the fact that the surplus waters of the common tank have from time immemorial been discharged so as to overflow certain lands of both the parties, an agreement must be implied as between the owners to the effect that neither can interfere with the accustomed flow of the surplus water so as to increase the burden of the other.