KASIA PILLAI Vs. GANESAMUTHUKUMARASAMIA PILLAI

JUDGEMENT

(1.) Defendant 1 is the appellant. The plaintiff and defendant L are owners of adjoining lands. The plaintiff's lands lie on the north and defendant 1's lands which are on a higher level lie on the south. Along the boundary between their respective lands defendant 1 put up a bund three feet high and in two particular places in this bund ho cut openings for allowing the surplus water collecting on his lands to flow into the plaintiff's lands and thence into the Palayam channel, which lies to the north of the plaintiff's lands. It is the common case of both parties that the plaintiff's land was part of the Palayam channel until it was granted to the plaintiff in about 1905 by the Government. It has been found by the Courts below that the bund stands on defendant 1's lands and was put up by him, though the plaintiff alleged that it belonged jointly to defendant 1 and himself. The case of the plaintiff is that defendant 1 is not entitled to drain off the surplus waters of his lands into the plaintiff's lands on the north and that, in any event, he is not entitled to let them off through particular openings in the bund. He therefore instituted the suit out of which this second appeal arises for a declaration that defendant 1 is not entitled to let off the waters of his lands into the plaintiff's lands and for necessary injunctions for giving effect to that declaration. He also claimed damages of Rs 200 alleged to have been sustained by him on account of defendant 1 allowing water to flow through his lands. It may be stated here that the waters which collected on defendant 1's lands consisted not only of the rain-water but also of the water which ho was entitled to bring into his lands for cultivation purposes from the Palayam channel.

(2.) The District Munsif dismissed the plaintiff's suit holding that defendant 1 has a natural right to drain off the waters of his fields into the plaintiff's fields lower down under Section 7, Basements Act, and that he could do this by making openings in the bund as he had been doing so for over 60 years. On appeal the Subordinate Judge held that defendant 1 had a natural right to drain off into the lower lands of the plaintiff the rain-water as well as the water coming into his lands by ordinary agricultural operations, but he held that he had no right to let these waters into the plaintiff's lands through particular vents in the bund as according to his findings he had not established an easement right for doing so by 60 years user against the Government. He therefore gave a decree for the plaintiff to the following effect: Defendant; 1 will be declared entitled, as a matter of natural right to drain the surplus waters collecting on his land into plaintiff's lands as they would be according to the natural situation of the fields without any bunds and not by putting up any bund or opening vents into it and an injunction will issue restraining defendants, etc. from letting the waters of the southern fields into plaintiff's land on the north through the vents.

(3.) The plaintiff s- claim as regards damages was dismissed by both the lower Courts.