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Baswantappa Irappa Desai Vs. Bhimappa Yellappa Koppad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 616 of 1920
Judge
Reported in(1921)23BOMLR1004
AppellantBaswantappa Irappa Desai
RespondentBhimappa Yellappa Koppad
Excerpt:
.....in india-rights of owners of lands on lower level to receive rain-water passing through higher lands-water flowing through channels to a tank-right to such water can be acquired by prescription.;the plaintiffs lands were at a lower level than the adjoining land of the defendants. during monsoon, the rain-water from the higher land used to pass from the defendants' land on to the plaintiff's land through existing channels, and thence found its way to a tank. the defendants placed obstructions in the channels which prevented the rain-water from flowing to the plaintiff's land. the plaintiff having sued to restrain the defendants from interfering with his right to got rain-water from their land, the defendants contended that the right claimed by the plaintiff could not be acquired by..........which correctly shows the position of the various survey numbers mentioned in the case and the water channels. defendant no. 4 is the owner of survey no. 91, but has let that survey number to defendants nos. 1-3 who are also the owners of survey no. 4. the plaintiff was the owner of survey nos. 92 and 86.2. the plaintiff's case is that he was entitled as of right to get the rain water which was flowing through survey no. 91 on to his land by means of existing channels, and that the defendants were not entitled to obstruct the flow of the water through those channels.3. the trial court decided in favour of the plaintiff, but unfortunately owing to an incorrect map being used, it found that the plaintiff was entitled to succeed, not only because he had acquired a prescriptive right to.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued for a permanent injunction restraining defendants Nos. 1 to 4 from interfering with the plaintiff's right to get water from the land either in the ownership or occupation of the defendants, and Us. 25 as damages. Exhibit 37 is the map prepared by the commissioner which correctly shows the position of the various Survey Numbers mentioned in the case and the water channels. Defendant No. 4 is the owner of Survey No. 91, but has let that Survey Number to defendants Nos. 1-3 who are also the owners of Survey No. 4. The plaintiff was the owner of Survey Nos. 92 and 86.

2. The plaintiff's case is that he was entitled as of right to get the rain water which was flowing through Survey No. 91 on to his land by means of existing channels, and that the defendants were not entitled to obstruct the flow of the water through those channels.

3. The trial Court decided in favour of the plaintiff, but unfortunately owing to an incorrect map being used, it found that the plaintiff was entitled to succeed, not only because he had acquired a prescriptive right to receive this water, but because he had the ordinary rights of a riparian owner with regard to the main channel which carried away the rain water towards a tank. On a reference to the commissioner's map Exhibit 37, it will be perfectly clear that the trial Court was in error in thinking that the plaintiff was a riparian owner because the main channel flowed entirely within Survey No. 91, and the water which flowed on to the plaintiff's land flowed through channels taking off' from the main channel at right angles.

4. The appellate Judge was, therefore, correct in pointing out that the plaintiff was not a riparian owner in regard to the main channel. He omitted to notice that what the trial Court had awarded to the plaintiff was a direction against the defendants that they should reopen the mouths of the cross-channels taking off from the main channel so that the water there from could flow on to the plaintiff's land Accordingly finding that the plaintiff was not a riparian owner he dismissed the suit.

5. Now the defendants have relied upon Section 17(c) of the Indian 'Easements Act which provides that a right to surface water, not flowing in a stream and not permanently collected in a pool, tank or otherwise, cannot be acquired by prescription, and cannot be an easement under Section 13 to be acquired by prescription. It appears to me that we must consider this case according to the natural conditions and situation of the Survey Numbers in question. From the map the trend of the land is towards the plaintiffs field. Therefore, the rain-water which falls on the upper land will gradually find its way to the lower land, and there can be little doubt that the water which passes through Survey No. 91 not only includes water which actually falls on Survey No. 91 but also water coming on to Survey No. 91 from the higher land, and the object of the owner of Survey No, 91 was to get rid of this water, as paddy was not grown on Survey No. 91, by passing the water through a well-defined channel into the tank in Survey No. 93. There is no evidence to show when the offshoots were made at right angles for some of the water to flow on to Survey No. 86. But it seems to me, considering the position of these lands and the conditions of agriculture in this part of the country, it would be very inequitable to hold, if the plaintiff had been enjoying the water by means of these channels for a certain number of years, that he could not acquire a prescriptive right to receive water through the channels unobstructed, which would entitle him to coins to the Court to ask for relief, in case obstruction was caused by the owner of Survey No. 91. Considerable confusion has arisen from considering the case from the point Of view that the defendants were the owners of a dominant tenement having a right to discharge their water on to the, C.J. plaintiff's land as owner of the servient tenement. But in the case of agricultural lands the right may very well be just the opposite way. Although it is quite possible that the owner of one piece of land might acquire the right to drain his water on to the land of another, it would be more natural in hilly districts, such as the one in which the suit lands are situate, for the owner of the lower land to acquire a right to receive water which either falls on or flows into the higher laud. It is only in such a way that cultivation in which districts can proceed; and no authority has been pointed out to us which would prevent the owner of the land on the lower level from acquiring such a right against the owner of the land on a higher level.

6. Such being the facts in this case, it seems to me that the plaintiff has established the fact that he had been accustomed to receive water on to his laud by means of well-defined channels from the defendants' land. No particular period has been mentioned, but the question would be a question of fact how many years the plaintiff had enjoyed this right. Evidently the trial Court came to the conclusion that the right had been enjoyed for such n period that the plaintiff was entitled to ask the Court to grant an injunction against the defendants Although the length of the period of the user does not seem to have been considered, it seems to have been admitted, or at any rate taken as granted, that the period of the user was sufficiently long to entitle the plaintiff to an injunction. Once it had been decided that his user was sufficiently long, he wag entitled to an injunction. But that question unfortunately has net been considered by the lower appellate Court, and the appellants in that Court were entitled to a finding on that question of fact. The case proceeded on the footing that the plaintiff had been getting this water for a very large number of years, and the argument was that however long they might be getting it they would never acquire the right to have it.

7. The order dismissing the plaintiff's suit must be set aside and the case must go back to the lower appellate Court to decide whether the plaintiff has been getting the water flowing from Survey No. 91 for such a time as would entitle him to an order for an injunction against the defendants restraining them from preventing the water from flowing on to his Survey Numbers. It is rather doubtful whether there was sufficient evidence in the trial Court on the question how long the plaintiff has been getting the water, and, therefore, it would be open to the lower appellate Court to call for evidence if it is not able on the record to come to a conclusion on this question. The appellant will be entitled to his costs of the appeal. The lower appellate Court will have to decide the question of damages, having allowed the appeal on a wrong ground.

Shah, J.

8. I agree.


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