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Hari Ram and anr. Vs. Siya Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2580 of 1967
Judge
Reported inAIR1977All244
ActsEasements Act, 1882 - Sections 7 and 28
AppellantHari Ram and anr.
RespondentSiya Ram and anr.
Advocates:Rama Shanker Prasad, Adv.
DispositionAppeal dismissed
Excerpt:
property - entitlement of riparian owner -sections 7 and 28 of easements act,1882 - construction of dam on other's land - held, action not permissible in law. - - now, after basdeo and mahadeo have got a chak near this land, they would not allow the natural flow of the water and would cause damage to the ghari and house and chak of the defendants first set and the only chakroad going into the village, and the learned munsif failed to see all these things, and gave a contrary finding altogether......own convenience he diverts or interferes with the course of a stream, or where he rings upon his land water which would not naturally have come upon it, even though in so doing he acts without wilfulness or negligence, he will be liable for all direct and proximate damages, unless he can show that the escape of the water was caused by an agent beyond his control, or by a storm, which amounts to vis major, or the act of god, in the sense that it is practically, if not physically, impossible to resist it. his liability, moreover, in no way depends on his knowledge of the existence of the nuisance.'further relying on the said learned judge laid down as under:'from these principles, it would follow that the right of a person to dam up water or divert the course of naturally flowing water.....
Judgment:

M.P. Mehrotra, J.

1. This second appeal arises out of a suit for permanent injunction. The brief facts are these: The plaintiffs claimed to be the bhumidhara in possession of the grove shikmi plot No, 1. It was alleged that the plot was acquired by compromise in Suit No. 147/ 1378 pending in the revenue court. In the said plot the plaintiffs 'had raised a Bandh about 16 or 17 years back for the protection of the plots and its trees from the water of the pond which was situated to the west of the plot. The bandh was constructed with the consent of the inhabitants of the village and it was for the benefit of the entire village. The defendants first set made an application in October 1963 to the S.D.M. for the removal of the bandh under Section 133 of the Cr. P. C. It was wrongly alleged in the application that the defendants second set had raised the bandh. The Tehsildar went on the spot on 6-10-1963 and he got the bandh opened at one point and through a channel got the water off in the eastern gaddha. Thereafter the file of the S.D.M. was closed on 1-7-1964. The plaintiffs contended that the orders and acts of the S.D.M. and the Tehsildar under Section 133, Cr. P. C. were all illegal, unjustified and unwarranted. They had no right to interfere with the bandh which had not been constructed by the defendants second set but had been constructed by the plaintiffs on their own land and from which there was no injury to others. The defendants second set were impleaded because they were the parties in the criminal court even though they were really not concerned with the bandh. The Gaon Samaj was also impleaded as it was interested in the flow of water. The suit had to be filed because of the illegal orders which were passed by the S.D.M. and the Tahsildar in the case under Section 133, Cr. P. C. The suit was contested by the defendants first set alone and proceeded ex parte against others. The contesting defendants denied that the plaintiffs were the bhumidhars of shikmi plot No. 1 and they denied the alleged compromise in the revenue case on the basis of which the plaintiffs claimed to have acquired the plot. It was also denied that the bandh was 16 or 17 years old as claimed by the plaintiff and further it was disputed that it was raised by the plaintiffs. The true fact was, according to the contesting defendants, that the bandh was raised for the first time in 1963 by the defendants second set to harm and injure the interest of the defendants first set. When the defendants second set lost in the criminal court under Section 133, Cr. P. C. they set up the plaintiffs to file the instant suit against the contesting defendants. It was claimed that the bandh served no useful purpose for the plaintiffs but it did cause injury to the land of the contesting defendants. The inhabitants of the village had given no consent for the disputed bandh. It was further-alleged that when there was no bandh, water from the western Tal used to overflow in the rainy season through the shikmi plot No, 1 and would pass to Garha which was just to the east of the village abadi. Certain other defences were also taken which it is not necessary to notice in the instant appeal as no point has been raised on their basis. The trial court decreed the suit and granted the permanent injunction restraining the defendants from causing interference in the erection and maintenance of the bandh in the shikmi plot No. 1 of the plaintiffs. The trial court found that the shikmi plot No. 1 was the bhumidhari of the plaintiffs. It was observed:

'If the person uses his land in the exercise of his ordinary rights he incurs no liability if he thereby injures his neighbours. User of this kind is known as natural user and for the damage caused by the natural user of the land there can be no liability. Plaintiffs, therefore, have a right to protect their own land from floods by constructing an embankment though it may result in flooding his neighbour's land.'

Reliance was placed on Shankar v. Lax-man (AIR 1938 Nag 289). An appeal was taken to the lower appellate court by the contesting defendants and the same was allowed, The lower appellate court held that shikmi plot No. 1 was not the bhumidhari of the plaintiffs. It was really the land of the Gaon Samaj but certain trees had been planted thereon by the plaintiffs. The lower appellate court further held that the erection and maintenance of a bandh in shikmi plot No. 1 was bound to cause damage and injury to the land of the contesting defendants. The lower appellate court placed reliance on Tukaram v. Maroti (AIR 1951 Nag 276) and Ram Bhika v. Arjun Gopal (AIR 1956 Madh Bha 209). In the former case reliance was placed on Maung Bya v. Maung Kyi Nyo and in latter reliance was placed on Sarju Prasad v. Mahadeo Prasad : AIR1932All573 , The suit was accordingly dismissed by the lower appellate court. Feeling aggrieved the plaintiffs have now come up in the instant second appeal and in support thereof I have heard Shri Rama ghanker Prasad, learned counsel for the appellants. The findings recorded by the court below on the controversy of the ownership of the plot were not questioned. Indeed, they could not be questioned as they are findings of fact. Similarly, the finding that injury was likely to result from the bandh to the land of the contesting defendants first set is also a finding of fact which cannot be questioned in the second appeal. Learned counsel contended that in the instant case the trial court rightly relied on AIR 1938 Nag 289. Support was also sought to be drawn from Gerrard v. Drowe, (i(1921) 1 AC 395) and Pir Bux v. Sher Mohd. (1969 All LJ 169). The decisions relied on by the lower appellate court were sought to be distinguished. In AIR 1951 Nag 276 Mudholkar J. extracted a passage from Coulson and Forbes on Waters and Land Drainage, 5th Edn. which, in my opinion, succinctly states the principles which are applicable to cases of the instant type. The passage is as under:

'Where the owner of land, without wilfulness or negligence, uses his land in the ordinary manner of its use, though mischief thereby accrues to his neighbour, he will not be liable for damages; but where for his own convenience he diverts or interferes with the course of a stream, or where he rings upon his land water which would not naturally have come upon it, even though in so doing he acts without wilfulness or negligence, he will be liable for all direct and proximate damages, unless he can show that the escape of the water was caused by an agent beyond his control, or by a storm, which amounts to vis major, or the act of God, in the sense that it is practically, if not physically, impossible to resist it. His liability, moreover, in no way depends on his knowledge of the existence of the nuisance.'

Further relying on the said learned Judge laid down as under:

'From these principles, it would follow that the right of a person to dam up water or divert the course of naturally flowing water or provide a particular channel for the flow of accumulated water is not an unrestricted right. It is subject to the obligation of seeing that no injury was caused to the property of another.'

In AIR 1938 Nag 289 it was laid down as under:

'Where a riparian proprietor for his own purposes, viz., to rid his land of the mischief diverts the watercourse to his neighbour's land and the accumulation of water there was not made as a voluntary act by the neighbour for his own benefit but by that riparian proprietor for ridding his land of the calamity, it is the duty of that neighbour to protect himself from that threatened danger irrespective of the consequences to his another neighbour.''

In the Madhya Bharat case (AIR 1956 Madh Bha 209) the plaintiff had alleged that on the west side of the Khata of the defendant, the defendant dug the path and removed the elevated barrier and erected a new Pala (a miniature dam) thus changing the course of the flow of the rain water so that the rain water would flow from this Pala to the plaintiffs eastern field-- Survey Nos. 192 and 193, and would cause damage to these fields. The plaintiffs, therefore, prayed that the Pala should be removed, the original condition of the path and the flow of water be restored. It was laid down by Chaturvedi, J. as under:

'The right of a person to dam up water or divert the course of naturally flowing water or provide a particular channel for the flow of accumulated water is not an unrestricted right. It is subject to the obligation of seeing that no injury was caused to the property of another.

Held on facts that defendant was liable to pay damages to the plaintiff for the damage done to latter's crop by diverting the natural flow of water from his field.'

Reliance was placed on Ramnath v. Kalanath (AIR 1950 Nag 241). Certain other cases were also relied on.

2. In Sarju Prasad v. Mahadeo Prasad : AIR1932All573 the head note is as follows:

'Where any alteration is made from the normal in land, the owner of that land is liable for any damage which may accrue to his neighbour if there has been want of care by the landowner in making the alteration. Where therefore a landowner digs a trench and by failing properly to cover it permits water to accumulate in the trench in such quantities that it naturally percolates through the soil into his neighbour's ground and damage is caused thereby, he is responsible for all the damage so caused.' Young, J., after referring to the case of Rylands v. Fletcher (1868) 3 HL 330, referred to two other cases which were decided subsequent to the said House of Lord's judgment. The said two cases are Broder v. Sailard (1876) 2 Ch D 692 and Hurdman v. North Eastern Rly. Co., ((1878) 3 CPD 168). The learned Judge concluded:

'In my opinion, from a consideration of the authorities, a natural user of land in the rule in Rylands and Fletcher in confined to the use of the land in its natural condition with the exception perhaps of those cases which deal with mining operations, to which different considerations apply. Where any alteration in made from the normal in land, in my opinion, the owner of that land is liable for any damage which may accrue to his neighbour, if there has been want of care by the landowner in making the alteration. In my opinion, the rule in Rylands and Fletcher has really no application in a case of this sort. The ordinary rule of law 'sic utere tuo ut alienum non laedas' applies to and governs this case.'

3. In Gerrard v. Crowe (1921-1 AC 395) the head note is as under:

'The appellant and the respondents owned lands upon opposite sides of a river. When the river was in flood and rose higher than its bank some of the flood water used to flow over the respondents' land, ultimately finding its way back to the river. The respondents erected an embankment from a point on their land about half a mile from the river diagonally to its bank, with the object of protecting their lands behind the embankment. The water flowing over the appellant's land in time of heavy flood was thereby increased. The appellant sued the respondents for damages and an injunction. It was not proved that any flood channel was obstructed, or existed, or that there was any ancient or rightful course for the flood waters across the respondents' lands:--

Held, that the action could not ba maintained.'

4. In my opinion 1969 All LJ 169 has no relevance to the facts of the case,

5. In my opinion, both in law and fact the appellants cannot succeed in this appeal. Taking into consideration the lower appellate court's finding, which has become final, it is obvious that the bandh was erected in shikmi plot No. 1 which has been found to belong to the Gaon Samaj and not to the plaintiffs. In this view of the matter, the principle of law that a riparian owner is entitled to a protective step on his own land with a view to prevent the flood waters causing damages to his land is not applicable to the instant case. The plaintiffs have not done something on their own piece of land. Something is sought to be done in the nature of raising an artificial dam in a piece of land which belongs to others. The mere fact that some stray trees might have been raised in the land of others could not entitle the tree-owner, who is not the owner of the land, to raise embankment or to set up dams. Further, the lower appellate court has recorded a finding that what was done was not in the nature of a protective step but a malicious one calculated to injure the defendants first set and not a step meant to protect the interest of the plaintiffs. The lower appellate court has put it in this manner:

'Here existed a Tal from a very long time, and in case of excess rain its water quietly passed through the north of the village towards east. Now, after Basdeo and Mahadeo have got a chak near this land, they would not allow the natural flow of the water and would cause damage to the ghari and house and Chak of the defendants first set and the only chakroad going into the village, and the learned Munsif failed to see all these things, and gave a contrary finding altogether. This is not protection of land but just a malicious use of the land for the purpose of causing damage to the defendants first set and this could not be allowed.'

It is obvious from the judgment of the court below that the bandh was likely to completely reverse the direction in which the rain water flowed. The lower appellate court has found:

'The slope of the land is towards east as observed by the learned Tehsildar and also by the evidence on record.' The bandh in dispute caused the Tal water to flow towards west. Such a complete reversal of the direction of the flow of the rain water cannot be said to be a natural user and any one who seeks to do something of this kind cannot claim that he is merely taking protective steps against flood water. In my opinion, it is a situation to which the ratio laid down in , : AIR1932All573 , AIR 1951 Nag 276 and AIR 1956 Madh Bha 209 would be applicable. The clear finding of the lower appellate court is that such an act was bound to result in injury to the defendants first set's plot. I, therefore, find no merit in this appeal. Accordingly, it is dismissed but as no one has appeared on behalf of the respondents I make no order as to costs.


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