S. Barman, J.
1. Defendant No. 1 is the appellant Defendant No. 2 is the State of Orissa against whom no relief is claimed by the plaintiff. The plaintiff belongs, to village Burudapalli. Defendant No. 1 belongs to an adjoining village Brahmanpur. The plaintiff filed the suit for grant of a permanent injunction against defendant No. 1 restraining him from diverting water in defendant No. 1's 'Bhanja Billa' lying, west of 'Bana Nala' in survey No. 84 to the east of the said Nala by fixing any pipe or any other contrivance across the canal in survey No. 84 and restraining him from allowing these waters from passing to the fields of the plaintiff and other members of his family.
2. The dispute between the parties arose thus: 'Dayapalli Nala' is an irrigation channel. Defendant No. 1 had land about 100 bharanams in extent? called 'Bhanja Billa' to the east of the said Dayapalli Nala (Irrigation channel)., To the east of defendant's 'Bhanja Billa' (paddy land) there is a drainage channel called 'Bana Nala'. Both these channels discharge waters in a river called Sana Nadi on the north. To the east of the drainage channel 'Bana Nala' defendant No. 1 had got another land called 'Behera Billa' which is just opposite to 'Bhanja Billa' with only the drainage channel 'Bana Nala' intervening. The plaintiffs-land is to the north-eastern side of defendant No. 1's land 'Behera Billa'. It is said that defendant No. 1's paddy land 'Bhanja Billa' is at a higher level than both defendant No. 1's 'Behera Billa' and the plaintiff's land lying on the north-eastern side of the drainage channel 'Bana Nala'. The plaintiff's case is this; In 1951 defendant No. 1 par-chased 'Behera Billa' in order to drain the rate water and the wafer from the irrigation channel 'Dayapalli Nala' brought by means of a sluice which accumulated in defendant No. 1's 'Bhanja Billa', by putting a wooden 'pipe beneath the drainage channel 'Bana Nala' which is also said to be at a higher level. The plaintiff complains that by this contrivance defendant No. 1 discharged excess water into 'Behera Billa' which ultimately inundated the plaintiff's adjacent lands to the northeast and caused damage to the plaintiff's crops. In 1953 the plaintiff reported to the revenue authorities who after local enquiry decided that defendant No. 1 had no right to put the wooden pipe. In 1954 there was a heavy flood as a result of which the wooden pipe gave way and was washed off. In the meantime there was a criminal case filed by defendant No. 1 against the plaintiff and others. In 1956 defendant No. 1 wanted to fix a new wooden pipe because the wooden pipe which he had fixed in 1951 had been washed away by the flood in 1954. The present suit was filed by the plaintiff on September 24, 1956, for permanent injunction to restrain, defendant No. 1 in terms of the prayer made in the plaint as aforesaid.
3. Defendant No. 1's defence to the suit is that the pipe existed from time immemorial; that he had customary right to let this water out by a pipe; that he purchased 'Behera Billa' with pipe in 1951 : that during rainy season excess water stagnates in his paddy land 'Bhanja Billa' and other neighbouring lands and defendant No. 1 has to pass water through the pipe to 'Behera Billa'; that no damage has been suffered by the plaintiff; that the Government has no right to regulate the disposal and draining of excess water to the detriment of defendant No. 1 who has a natural right of letting his water through the low lying lands to the river; that any order passed by the Government will not bind defendant No. 1; that defendant No. 1 had brought a criminal case against the plaintiff and others for having forcibly removed the pipe and caused damage to defendant No. 1's lands and they were convicted and the conviction was upheld in Criminal Revision; that defendant No. 1 had right as easement of necessity.
4. The trial court held that the pipe existed for more than the statutory period; that defendant No. 1 has natural customary right to discharge water through the pipe; that there was no damage to the plaintiff's crops as alleged; that Ext. 3 series show that the plaintiff was having full crops; that 'Daya-palli Nala' is an irrigation channel and 'Bana Nala' is a drainage channel; that the Government tad no right to regulate or direct the mode of supply of water. On these findings the learned trial court dismissed the plaintiff's suit. In appeal the learned lower appellate Court reversed the decision of the trial Court and decreed the suit in favour of the plaintiff and granted his prayer for injunction. The material findings on which the learned lower appellate court decreed the suit were that the pipe is in use not for more than 20 years and therefore there was no easementary right as alleged; that defendant No. 1 has no natural right to discharge water as it is foreign water in the sense that the water discharged through the wooden pipe is foreign water so fat as 'Behera Billa' is concerned and so the plaintiff is not entitled to receive such foreign water; that by reason of such discharge of foreign water the plaintiff sustained greater inconvenience.
5. The points urged on behalf of the defendant-appellant herein are these. The finding of the learned lower appellate Court that defendant No. 1 has no natural and customary right is illegal; that there is no proof of substantial damage; that on admission of the plaintiff there is no other outlet for discharge of excess water except in the way defendant No. 1 has been doing it -- in other words, it is a right of easement of necessity; thus defendant No. 1's act cannot be called wrongful act because defendant No. 1 did it as protection against flood.
6. In course of hearing of this appeal the defendant-appellant raised a new point, which was neither pleaded nor raised as an issue nor argued either before the trial court or before the learned lower appellate Court, -- namely, that defendant No. 1 was fighting the flood as a common enemy. His point is that the flood is a common enemy against which every man has a right to defend himself, and that he cannot stand by and see his property destroyed by flood. Apart from the fact that this point is a mere after-thought there is also no merit in this contention on the facts of this case. There is nothing to show that the pipe was put as a protection measure against flood. There was no unusual flood until 1954. The wooden pipe was already there in 1951 before the flood in 1954. Therefore it cannot be said that the pipe was put as a protective measure against flood. I therefore hold that this defence contention is untenable on the facts and in the circumstances of this case.
7. The general principle regulating the liabilities of landowners with regard to the escape and overflow of water has been well expressed in Coulson and Forbes on Waters and Land Drainage (sixth Edition) p. 162, which reads thus:
'Where the owner of land, without wilfulness or negligence, uses his land in the ordinary manner of its use, though mischief thereby accrues to Ms neighbours, he will not be liable for damages; but where for his own convenience he diverts or interfere with the course of a stream, or where he brings 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.'
In the present case, if the defendant No. 1 used his land in the ordinary manner of its use, he would not have been liable. But what defendant No. 1 did was this: He diverted or interfered with the normal flow of water by putting a pipe and thereby brought water which inundated and damaged the plaintiff's land. Defendant No. 1 is liable on the facts of this case. It is not a case of easement of necessity. On this finding alone, the plaintiff is entitled to succeed.
8. There is another aspect which the learned lower appellate court took into consideration. There is no dispute that the defendant No. 1's land is on a higher level and the plaintiff's land on a lower level. The upper and the lower lands were divided by 'Bana Nalla' (drainage channel) and the existence of such a channel must imply a separation between the lands on either side and so long as the channel remains there can be no question of lower land-owner receiving or being obliged to receive any water from the upper area. So long as 'Bana Nala' (drainage channel) remains, the defendant No. 1 cannot have any alleged natural right. Whether it is extinguished or held in abeyance is immaterial.
9. Thus the peculiar features of this case are two, namely, the intervening drainage channel (Bana Nala) and a wooden pipe put into the drainage channel to discharge water. Defendant No. 1 has no right to divert water. The diverted water, --so artificially brought upon, -- inundated and damaged the plaintiff's lands. The plaintiff is entitled to get relief and protection against such diverted water artificially brought upon, due to defendant No. 1's abnormal use of his land. The decisions cited on behalf of the defendant-appellant are all distinguishable on the peculiar facts of this case. There is no dispute regarding principles underlying these decisions. Each case has been decided on the facts peculiar to each of them. In my opinion the learned lower appellate Court rightly decided in favour of the plaintiff having regard to the peculiar facts of this case.
9a. In this view of the case, the decision of the learned lower appellate Court is upheld.
This appeal is accordingly dismissed with costs.