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Ganesh Panigrahi Vs. Jura Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 335 of 1969
Judge
Reported inAIR1973Ori232; 39(1973)CLT243
ActsSpecific Relief Act, 1963 - Sections 36 and 38; Easements Act, 1882 - Sections 4 and 28
AppellantGanesh Panigrahi
RespondentJura Sahu and ors.
Appellant AdvocateR.C. Misra and ;B.B. Das, Advs.
Respondent AdvocateP.V. Ramdas, Adv.
DispositionAppeal dismissed
Cases Referred(Kaosal Mohan Powar v. Kodu Dajiba Powar
Excerpt:
.....and enjoy the aforesaid two plots belonging to him in any manner he likes, and he raised the aforesaid portion for the beneficial enjoyment of his own land, and the defendants do not have any right in digging a nala or doing anything on the suit land, much less to damage and/or adversely affect the plaintiff's land in any manner, the court below acted illegally in not granting the plaintiff's prayer for a permanent injunction restraining the defendants from digging a nala on the suit lands belonging to the plaintiff and/or from damaging the same in any other manner or from interfering with the plaintiff's peaceful possession and enjoyment of the suit land. 10. an injunction, as is well known, is an equitable remedy and accordingly the maxim of equity that he who seeks equity must..........of taking water through the above-mentioned suit plots. according to them plot no. 690 stands at a higher level than its adjacent plot no. 775 belonging to the plaintiff, and since time immemorial the surplus water from plot no. 690 used to naturally flow out through plot no. 775, and thereafter through other plots in the locality. it is averred that the plaintiff being a rich man wanted to purchase the said plot no. 690, but as he failed in his attempt, he recently raised the level of a portion of plot no. 775 adjacent to plot no. 690 by putting earth on the same, thereby causing obstruction to the natural flow of the surplus water from plot no. 690 through plot no. 775, with the ulterior motive of damaging the defendant's aforesaid plot no. 690 and making it unfit for cultivation. soon.....
Judgment:

Acharya, J.

1. The unsuccessful plaintiff in both the courts below has preferred this second appeal against the decision passed by the Additional Subordinate Judge, Berhampur in Title Appeal No. 14 of 1969.

2. The plaintiff's case, in brief, is that he owns and possesses plot Nos. 775 and 774 as specifically described in the plaint. To the adjacent north of the said two plots, the defendants have their plot No. 690 at a lower level than the above mentioned two suit plots. The surplus water from plot No. 690 was being discharged from time immemorial through plot Nos. 742, 745 and other plots downwards belonging to other persons. The defendants being in inimical terms with the plaintiff and in order to damage the plaintiff's land and to have a short-cut way for the surplus water on plot No. 690, forcibly dug a Nala on the above-mentioned two suits plots thus causing wrongful loss and damage to the plaintiff. The plaintiff tried to obstruct the above high-handed action of the defendants, but failed in his attempt as the defendants are influential persons and had the support of the police and other local authorities.

3. Defendant Nos. 4 and 5 did not contest the suit and were set ex parte.

The plea of defendant Nos. 1 to 3 is that they have customary and easementary right of taking water through the above-mentioned suit plots. According to them plot No. 690 stands at a higher level than its adjacent plot No. 775 belonging to the plaintiff, and since time immemorial the surplus water from plot No. 690 used to naturally flow out through plot No. 775, and thereafter through other plots in the locality. It is averred that the plaintiff being a rich man wanted to purchase the said plot No. 690, but as he failed in his attempt, he recently raised the level of a portion of plot No. 775 adjacent to plot No. 690 by putting earth on the same, thereby causing obstruction to the natural flow of the surplus water from plot No. 690 through plot No. 775, with the ulterior motive of damaging the defendant's aforesaid plot No. 690 and making it unfit for cultivation. Soon after raising the level of plot No. 775 as aforesaid, the plaintiff instituted this suit to harass the defendants. They have specifically asserted that unless the aforesaid portion of plot No. 775 recently raised by the plaintiff is not suitably removed in order to allow the surplus water from plot No. 690 to flow out through plot No. 775 as before, plot No. 690 would become unfit and useless for all intents and purposes.

4. Undisputedly plot No. 690 belonging to the defendants is to the adjacent north of plot No. 775 belonging to the plaintiff.

5. The Trial Court on an elaborate and thorough appreciation of the evidence on record finds that plot No. 690 is at a higher level than plot No. 775. It also finds that the plaintiff recently by putting earth raised the level of a portion of his plot No. 775 to the extent of about 100 to 120 feet in breadth, adjacent to and all through the southern boundary of plot No. 690. It also finds that the lands adjoining plot No. 690 on its east, north and west are all at a higher level than plot No. 690, but the lands to its south, excepting the elevated portion of plot No. 775, are at a lower level. It has categorically discarded the plaintiff's case that the water from plot No. 690 flows out on its northeast corner through the lands of other persons. It has arrived at a definite conclusion that because of the topography of the land and the situation of the aforesaid two plots the surplus water on plot No. 690 could only be discharged through plot No. 775 and not through any other plot.

6. The appellate court on a fresh reappraisal of the evidence on record in a convincing manner has confirmed the aforesaid findings of fact arrived at by the trial court.

7. The two courts in arriving at the aforesaid findings have taken into consideration certain admissions made by the plaintiff's witnesses. The plaintiff himself in his cross-examination has admitted that the eastern and northern sides of plot No. 690 are at a higher level, and its western side is at a much higher level due to the existence of a hillock on that side. He has also admitted that the southern side of the aforesaid plot is not at a higher level. P. W. 2 in his cross-examination has admitted that to the north of plot No. 690 the lands are at a higher level, whereas the lands on the southern side of that plot are gradually sloping down. P. W. 3 has also admitted in his cross-examination that the lands on the eastern, western and northern sides of plot No. 690 are at a higher level than the lands on the southern side and the lands to the south of the said plot are at a lower level. He has also admitted that if the elevated portion of plot No. 775 is opened, water from plot No. 690 would flow towards the south. He has also admitted that apart from the said elevated portion on plot No. 775 the other portion of plot No. 775 is sloping towards the south, and that if a channel is dug on that elevated portion of plot No. 775 the water on plot No. 690 will pass through plot No. 775. The report Ext. B of the Commissioner who made a local inspection shows that the elevated portion (referred to hereafter as the ridge) is on plot No. 775 and is adjoining plot No. 690 and that ridge is at a slightly higher level than plot No. 690. The Commissioner at the time of his local inspection found that the earth on the said ridge was soft, indicating thereby that the said ridge had been recently constructed.

8. On a careful perusal of the judgments of both the courts below I am satisfied that the above-mentioned findings of fact are borne out by the relevant evidence on record and are perfectly correct and justified, and there is absolutely no reason to interfere with the aforesaid findings of fact in this second appeal. Mr. Misra, the learned counsel for the appellant, has also not been able to assail the aforesaid findings of fact on any convincing ground.

9. Mr. Misra, however, urged that in spite of the finding of the court below that the plaintiff recently raised a portion of his own land, the plaintiff's specific prayer to restrain the defendants from committing damages or mischief of any kind on the plaintiff's own land should not have been rejected. According to Mr. Misra, as the plaintiff has the right to use, utilise and enjoy the aforesaid two plots belonging to him in any manner he likes, and he raised the aforesaid portion for the beneficial enjoyment of his own land, and the defendants do not have any right in digging a Nala or doing anything on the suit land, much less to damage and/or adversely affect the plaintiff's land in any manner, the court below acted illegally in not granting the plaintiff's prayer for a permanent injunction restraining the defendants from digging a Nala on the suit lands belonging to the plaintiff and/or from damaging the same in any other manner or from interfering with the plaintiff's peaceful possession and enjoyment of the suit land.

10. An injunction, as is well known, is an equitable remedy and accordingly the maxim of equity that he who seeks equity must do equity is applicable to a case in which such an equitable remedy is prayed for. Moreover, the plaintiff asking for such a relief should be able to show that he has come to court with 'clean hands'. The lawfor the issue of injunction as provided in the Specific Relief Act is governed by the aforesaid equitable principles. In the above view of the matter, the plaintiff who asks for an injunction must be able to satisfy the court that his own acts and dealings in the matter have been fair, honest and free from any taint or fraud or illegality, and that if, in his dealings with the person against whom he seeks the relief, he has acted in an unfair or unequitable manner, he cannot have this type of relief. The views expressed and the principles enunciated on this question in the decision in AIR 1940 Lah 69 (Basheshar Nath v. Municipal Committee, Moga), and in the Full Bench decision in (1897) TLR 20 Mad 58 at p. 67 (FB) (Seeni Chettiar V. Santhanathan Chettiar) may be seen.

11. From the pleadings, the evidence on record (specially the above-mentioned admissions of the plaintiff and his witnesses), the Commissioner's local inspection report Ext. B, and the concurrent findings and conclusions of the two courts below it is quite evident that the surplus water on plot No. 690 was all along flowing through plot No. 775 belonging to the plaintiff and the plain-tiff before filing this suit raised the level of the northern portion of plot No. 775 by putting earth on the same, thereby obstructing the natural flow of water from Plot No. 690 through plot No. 775. The lands on the north, east and west of plot No. 690 being at a higher level, some surplus water from all these lands must be flowing to plot No. 690. By the aforesaid construction of the judge by the plaintiff on plot No. 775 he has obstructed all that water to flow out of plot No. 690, thereby causing damage to and depreciation in the value of the aforesaid plot. The defendants assert that unless the said ridge is not suitably removed, plot No. 690 would become unfit and useless for all intents and purposes. Their assertion, on the facts established in this case, appears to be well founded. Moreover the plaintiff after putting up the aforesaid ridge on plot No. 775 instituted this suit on the plea that plot No. 775 is at a higher level than plot No. 690, which plea has been established to be absolutely a false one. On the above facts it can verily be said that the plaintiff has not come to Court with 'clean hands'; rather his dealings in this affair have been most unfair, unconscionable and unequitable, and so he is not entitled to the equitable remedy by way of injunction as prayed for by him.

12. The reliefs prayed for by the plaintiffs cannot be granted on another consideration also. Their Lordships of the Privy Council in Gibbons v. Lenfestey, AIR 1915 PC 165 at page 167 have held that where two contiguous fields one of which stands on a higher ground than the other belonging to two different persons, nature itself may be said to constitute a servitude on the inferior tenement by which it is obliged to receive water which falls from the superior.

Lord Watson in John Young and Co. v. Bankier Distillery Co., 1893 AC 691 at p. 696 says:

'The right of the upper heritor to send down, and the corresponding obligation of the lower heritor to receive, natural water whether flowing in a definite channel or not, and whether upon or below the surface, are incidents of property arising from the relative levels of their respective lands and the strata below them. The lower heritor cannot object so long as the flow, whether above or below ground, is due to gravitation, unless it has been unduly and unreasonably increased by operations which are in aemulationem vicini.'

In the Full Bench decision reported in AIR 1926 Mad 449 (FB) (Sheik Hussain Sahib v. Pachipulusu Subbayya), on a review of many English cases, it has been held that if the owner of the land at the lower level raises an obstruction to the natural flow of water he will be restrained if it causes or tends to cause damage to the owner of that on the higher level.

Justice Fazl Ali in Sheogulam Singh v. Rambahadur Singh, AIR 1938 Pat 73 says that the owner of a plot of land on a higher level has, as a natural right and as an incident to the ownership of the plot, the right to discharge water upon an adjacent plot of land lying on the lower level.

Their Lordships of the Supreme Court in Patneedi Rudrayya v. Velugubantala Venkayya, AIR 1961 SC 1821, have observed that the water on a higher ground must by operation of the force of gravity flow on the lower ground. Where the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlet for that water. It makes little difference that the water happens to be not merely rain water but flood water provided the flood is of the kind to which the higher land is subjected periodically.

In the decision reported in AIR 1946 Nag 75, (Kaosal Mohan Powar v. Kodu Dajiba Powar) it has been held that the owner of the lower land is bound to accept water discharged in the ordinary and in the matter of course of affair from the higher land and, cannot raise artificial barriers on his land which would cause water to accumulate on another's property thereby causing damage in any manner to the owner of the higher land. He cannot do this even if it is necessary to protect property.

On the views expressed and/or the principles enunciated in the above-mentioned cases and on the facts established in this case, the plaintiff, who has instituted this case after raising the level of a strip of his land adjacent to plot No. 690 thereby obstructing the natural flow of the surplus water from plot No. 690 through plot No. 775, cannot obviously get the protection of the Court for the relief prayed for by him.

13. On the above considerations I am satisfied that the Courts below were perfectly justified in dismissing the plaintiffs suit.

There is therefore no merit in this appeal which is accordingly dismissed with costs.


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