1. This appeal at the in-stance of the defendant, has been 'directed against the judgment and decree dated 3-3-1979, passed bv the 4th Additional District Judge, Jabalpur. in C- A. No. 1-B of 1978, arising out of the judgment and decree dated 24-12-1977, passed by the Civil. Judge. Class II. Sihora. in C. S. No. 24-.B of 1977.
2. The plaintiff's field, bearing. Kh, No. 199 and the defendant's field bearing Kh. No. 192 are situated adjacent to each other. The plaintiff-respondent brought a suit against the defendant appellant claiming damages to the time of Rs. 4000/- on the ground that the plaintiff's field was at a higher level while that of the defendant was at a lower level, and the water of his field used to flow out from a Modha, through the field of the defendant. But in May 1975. the defendant made an embankment in his field whereby the said Modha was closed as a result of which the water from the field of the plaintiff could not be drained out causing damage to his paddy crop. The plaintiff contended that normally he used to raise crop of 30-40 bags of paddy but due to the damage caused to it, he could get only 4 bags of paddy that year. He thus lost about 36 bags of paddy, the value of which at the rate of Rs. 125/- per bag was claimed. He also contended that in the proceedings under Section 131 of the Madhya Pradesh Land Revenue Code, the Tahsildar, Sihora. had directed the defendant not to obstruct the flow of water from the plaintiff's field but the defendant did not comply with it.
3. The defendant-appellant contested the suit by contending that the water from the plaintiff's field used to How through his field since about. 8-10 years only. He also took the plea that since the slope of his field is towards south,he was unable to irrigate his entire field due to flood and hence he had made an embankment from east to west after making an arrangement for flow of water of the plaintiff's field. He further averred that there was a small tank on the western side of the plaintiff's field bearing Kh. No. 200 and there being heavy rains in the year 1975, the said tank had flooded, and the excessive flow of water of that tank also flooded the plaintiff's as well as the defendant's fields so much so that the embankment made by the defendant gave way. He took the plea that the crop of the plaintiff and the defendant was damaged by the flood and not because of the embankment made by him. He also denied that the plaintiff's field normally yielded 30-40 bags of paddy and averred that it yielded only 15 bags of paddy and in the relevant year, the plaintiff had received 12 bags of paddy because sowing was not done' by him in time and the heavy rains had damaged the crop. The rate of paddy :was also disputed.
4. The learned trial court found favour with the plaintiff's case, and therefore, decreed the suit for damages to the tune of Rs. 2,400/- On appeal, the learned lower appellate court reduced the quantum of damages to Rs. 2,000/-against which the present second appeal has been directed.
5. The learned counsel for the appellant first contended that the suit in the civil court was not maintainable as the remedy lay in the ' revenue courts under Section 131 of the M. P. Land Revenue Code. I do not find any merit in this contention as the suit did not relate to the rights of way as to the route by which a cultivator shall have access to his field or to the waste or pasture land or as to the source from or course by which he may avail himself of water. Admittedly, the suit was for damages resulting from the alleged obstruction of flow of water from the field of the plaintiff.
6. The, next contention of the learned counsel for the appellant was that unless the right of easement, to the flow of water for full statutory period was established, no damages resulting from the alleged obstruction to flow of water could be awarded. In my opinion there is sufficient force in this submission. The general principle of the law of Torts isthat the plaintiff, in an action for damages, should make out a dear case for violation of a right recognised by the law, Merely by alleging that damages were caused by any intentional conduct of any person will not make out a cause of action unless such a conduct fell within the scope of one the conditions of torts recognised by the law, or breach of any statutory duty, resulting in damages. One of the instances mav be, when a person committed some infringement of certain recognised rights of another who has matured prescriptive rights to flow water from the land of another and obstruction of which would result in certain harm or damages. Therefore, in cases of interruption or obstruction in exercise of such right, an action would lie for damages,
7. Tortious liability arises from the breach of a duty primarily fixed by the law. Tortious duties exist by virtue of law itself and are not dependent upon any agreement or consent of the persons subjected to them. A person is under a duty not to assault another person, not to slander him. not to trespass on his land because law required him not to do so and not because he has agreed or undertaken not to do so. Tortious liability is thus distinguishable for this reason from the contractual and other liabilities. In other words, in tort, the content of the duty is fixed bv the law, while under contract, all the contractual duties are fixed bv the contract itself. Thus, the basic principle about rights and remedies is that if there is a right under the law, there must be a remedy for its violation. But if the plaintiff cannot show any violation of legal right, he cannot succeed merely on the ground that he had sustained damages. In the case of artificial channels for flow of water, the owners of land abutting them, have no natural rights to flow their water but may acquire easement either as against other persons owning land above or below their land. The owner of the upper land has a right that such water shall be allowed by the owner of the lower land to run naturallv and he may acquire easement to do so. But unless he has acquired the prescriptive right to do so, the person cannot be held liable for damages for its obstruction as there would be no violation of any legal right and which could be said to have been infringed only after completion of full statutory period or onproof of existence of such right from times immemorial. I get support in this view of the matter by a Division Bench decision of the Madras High Court in Venkatachalem Chettiar v. Zamindar of Sivaganga (1904) ILR 27 Mad 409.
8. As a matter of fact, a person is entitled to put up an embankment on his land to protect it from unusal flood unless others have a prescriptive or customary right that he should receive the over-flow of water. A Division Bench of the Bombay High Court, in Shidramappa v. Mohamed Yusuf (l921) 59 Ind Cas 391 : (AIR 1920 Bom 207) took the following view:--
'An owner of property is entitled to protect himself against water which he has not brought on his land himself. He is entitled to divert water which threatens to do damages to his land. Likewise, his neighbours have a right to protect themselves against water which threatens to do damages to their properties.
Where the plaintiff and the defendant have equal rights to protect their own properties by turning the water which threatens to flow over their lands in times of flood into a ditch, and in consequence of that the combined water which would otherwise have gone on to their respective lands causes damages to the banks of the ditch on either side, it is the business of both parties to protect themselves against damage which may result when there is an excess flow of water in the ditch, and neither party can, in such a case have a cause of action against the other.'
9. Again in Thomas and Evans. Ltd. v. Mid-Rhondda Co-operative Society, Ltd. (1941) 1 K. B. 381. it was observed as under:--
'Where a riparian owner for the protection of his own land erects a wall along the side of the river to prevent flooding and many years afterwards pulls down part of the wall in connection with building operations, with the result that a neighbour's property is damaged by flood, the neighbour has no right to the protection of the wall and cannot therefore maintain an action for damages.'
10. In the case before me, the plaintiff's claim as laid in the plaint, is not based on breach of any contractual duty or prescriptive or customary rights, but it is based on his natural right andbreach of duty by the defendant to receive overflow of the water into his own field and then to drain it out, as the plaintiff is the owner of the upper land being situated above the level of the defendant's land and that the plaintiff had a right to such a overflow of water. But in order to claim it as of right, the plaintiff had not pleaded and proved the acquisition of such right either bv prescription or custom and infringement thereof, resulting in the damage. Unless the plaintiff pleaded and proved the acquisition of any prescriptive or customary right for flow of water through the land of the defendant and that such right was infringed, the question of violation of such a right does not arise so as to enable him to claim damages. But in the instant case, the plaintiff has neither prescriptive nor customary right of any sort against the defendant and as such he has no right to sue merely on the ground that he had sustained damages. In the view of the matter, the plaintiff's suit for damages could not be decreed and is bound to fail.
11. In the result, the appeal succeeds and is hereby allowed. The judgment and decree of the courts below are set aside and the plaintiff's suit is dismissed. In the circumstances of this case, the parties are directed to bear their own costs throughout.