KASESWAR MUKERJEE Vs. ANNODA PROSAD PATRA

JUDGEMENT

(1.) The plaintiff No. 1 is the proprietor, and the other plaintiffs are tenants, under him, of two villages Khasnan and Bishubera. To the east of these villages lie the villages of Sonamni and Gazipur, owned by the defendants. It is conceded that the plaintiffs villages are higher than the defendants villages, and that the natural flow of surface water from the former is eastwards over the latter. Formerly the surface water of the four villages found an outlet into a stream called the Banspati on the east of defendants villages, but the bed of this stream has gradually risen until it is above the level of the fields lying to the west of it. A band separates Bishubera from Gazipur and Sonamni, called the pakband, and another band lies between the two latter villages and the stream on the east. In each of these bands is a hana or opening through which the water used to flow: but both hanas were closed by the defendants several years ago. The plaintiffs sued for a declaration of their right to discharge their surface water over the defendants villages, for a direction upon defendants to open the hanas, for a permanent injunction upon the defendants restraining them from closing the hanas, and for compensation.

(2.) The defendants denied the assertions made by the plaintiffs, but that attitude has been given up, and they now resist the plaintiffs claim, on the, grounds that the plaintiffs had no right to discharge the water on to their lands, that any right the plaintiffs may have had has been extinguished by the defendants Tight to block the water exercised for a number of years, that the plaintiffs have lost the right to sue for the enforcement of their right, and that the silting up of the stream has so changed the natural features of the 4 villages that the plaintiffs cannot discharge their surface water eastwards without ruining the defendants villages.

(3.) The Court of first instance dismissed the suit; the Appellate Court decreed it in part. On appeal to this Court, the judgment of the Appellate Court was set aside and the appeal was remanded to be re-heard.