DORAISWAMI MUTTIRIYAN Vs. MUTTACHI ALIAS NAMBIYAPPA MUTHIRITAN

JUDGEMENT

(1.) These two second appeals have arisen out of two cross-suits. In the earlier Suit No. 92 of 1914, the plaintiff is the owner of the upper western land and he sued for an injunction preventing the defendants from obstructing the draining of the surplus water of his upper land into the defendant s field, through a particular madai or opening which, after traversing the breadth of the eastern ridge of the plaintiff s field, passes through the breadth of the boundary ridge between the two villages of the plaintiff and the defend-ants respectively and then opens out into the defendants field. He also prayed for the removal by the defendants of the bund which they had put up on their own land opposite to the madai so as to prevent water falling through the madai into the defendants lower land. The 3rd relief claimed by the plaintiff was that he might be put in possession of the site of the madai situated on his own patta land and its entrance. The plaintiff also prayed for further reliefs byway of damages caused by the defendants acts. The cross-suit was for an injunction against the plaintiff in the first suit restraining him from discharging water through the madai into the defendants field and for damages. I shall call the plaintiff in the first suit (who is the owner of the upper land) as plaintiff, hereafter. The first issue raised in that Suit No. 92 of 1914 was whether the plaintiff was entitled to discharge the surplus water of his land into 1st defendant s land through the madai marked A in his plan. Now the water which is collected on the plaintiff s land seems not to be merely the rain water which falls on that particular land, but also water brought on to the plaintiff s land from irrigation sources for the purpose of cultivation of sugarcane, besides the water which comes on to the plaintiff s land from fields which are still higher up and which are also cultivated for agricultural purposes. The judgments of the lower Courts consider the plaintiff s right as of the nature of a natural right in some places, as a customary right in other places and as a prescriptive right in yet other parts of the judgments. As regards a natural right strictly so called, it may be said that it covers only the right to allow the rain water falling upon a land which is naturally higher in level than its neighbouring land to drain by surface flow by gradually flowing over, wherever and along whatever lines the water could find its way on to that neighbouring land. But such a strict interpretation of the expression "natural right" seems not to have been adhered to always by Courts. Even if the owner of the upper field reclaims or improves portions of his land in course of ordinary agricultural operations, provided the water does come upon his land naturally and in draining it off to the lower field he does not cause more injury to that lower field than would have been caused if he had left his land in its natural unimproved condition, the right conferred on him by law to so drain off the water has also been described as a "natural right." I think also that even if the water was not merely rain water, but water that is brought according to the custom and usages of the country along irrigation channels upon the land, the right to pass it on to a land of a lower level may be spoken of as a natural right" without much violence to language. In the present case the District Munsif finds a customary right on the part of the plaintiff s land and similar lands south and north of the plaintiff s land in the plaintiff s village to throw off the water coming on to those, fields for purposes of agricultural irrigation on to the lower lands in the defendants village to the respective fields in the plaintiff s village situated opposite to and south of the first mentioned lands. The Subordinate Judge in paragraph No. 7 of his judgment notices this finding of the District Munsif that the lands in the plaintiff s village of Pallevaram have been accustomed to drain their water through madais shown in the Commissioner s plan into the lower fields in the defendants village of Velayudampatti, but he does not expressly find that a customary right of easement to so pass on the water through madais, even though the water was brought in for purposes of agriculture, has been established. He refers mainly to natural rights strictly so called, that is, those rights which relate only to the drainage of rain water and the passing on of water by surface flow to the lower land without a definite outlet. He might have intended to find a customary right of easement also. However, I think that it is better to request the lower Appellate Court to submit a definite and clear finding on this customary right and as to the extent of such customary right, though the defendants contented themselves in their written statement with denying the plaintiff s right altogether and did not in the alternative set up that the plaintiff has been trying to exceed his customary right.

(2.) I may also here refer to the fact that the District Munsif in drawing up the decree has not given sufficient consideration to the right given to a servient owner by Section 22 of the Basements Act which says, "the dominant owner must exercise his right in the mode which is least onerous to the servient owner; and when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servieut owner, be so confined." The decree gives an injunction directing the defendants to remove the heap of mud put up by the defendants opposite to the madai A and to restore the original level of the defendants lands. Injunctions as to such easements, when they have been broken, should, in my opinion, be confined to a direction to the defendants not to obstruct the exercise of the easement and should not descend into details, as that will prevent the defendants from taking advantage of the privilege given to them by Section 22, Easements Act. As regards the site of the madai, though the defendants in paragraph No. 8 of their written statement denied the plaintiff s ownership of the madai, it is clear from the plan that between the defendans patta land and the plaintiff s patta land there is the boundary ridge between the two villages and I take it that it does not belong to either party. The decree, when it restores possession of the site of the madai to the plaintiff, must be interpreted as confined to the ridge and opening in the survey boundary of his field No. 243 as shown in the Commissioner s plan, and not to the eastern village boundary ridge or to the ridge further east belonging to the defendants field. The issue on which the lower Appellate Court has to find is: Is the plaintiff, by custom or prescription, entitled to drain the water coming on his land by the falling of rain or drained from upper fields or brought by himself for purposes of irrigation, to the defendents land and, if so, in what mode and to what extent?" The finding will be submitted on the evidence on record in four weeks from the receipt of records. Ten days will be allowed for objections. Phillips, J.

(3.) I agree. I do not think it is necessary in this case to express a definite opinion as to the nature or extent of natural rights. For the purposes of this case it is sufficient to hold, as I do, that an owner of land can have no "natural" right to pass the water, which has come upon his land artificialy, to the adjoining land. In this case it is admitted that the upper field is watered from irrigation sources and, therefore, a right to pass such water away from the field cannot be a natural right. It is, therefore, necessary that the question as to whether the upper owner has a prescriptive right or a customary right to pass away that water should be decided.