1 to 6. xx xx xx
7. This brings me to the second important contention raised by Mr. Chhatrapati. He invited my attention to Illustration (i) appended to S. 7 of the Easements Act, which gives a legislative recognition to the natural right of the sort claimed in this case. The said illustration reads as follows:-
'(i) The right of every owner of upper land that water naturally rising in, or falling on such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.' Placing heavy reliance on that illustration and more particularly on the word 'adjacent' occurring therein, Mr. Chhatrapati urged that the right of discharge of rain water arising naturally in any land is limited only to the adjacent land and the moment somebody else's property intervened, the said right could not be extended to the property beyond that intervening property. He further urged that if there be right, it will be the right of the intervening owner to get the water further discharged, but as far as the first claimant is concerned, his only right would be the right in respect of the proximate property and no further. This argument is not acceptable firstly because what has been observed in illustration is only illustrative in character and not definitive in import, If the intervening owner readily accepts the burden, which then passes on further, the intervening owner is not a necessary party to any such litigation. The first claimant can very well have a cause of action against the property standing third in order, if that person tries to arrest the flow of his water via that intervening property. Mr. Chhatrapati in this connection invited my attention to the judgment of the Privy Council in the case of Gibbons v. Lenfestey, AIR 1915 PC 165. The authority does not lay down the proposition which was propounded by Mr. Chhatrapatty before me. The situation in that suit was peculiar. The appellant's close land was at a lower level from the highroad, but higher than those of the respondents. Some verbal agreement of 1872 was brought into aid for the purpose of drainage of water. Had there been the case that there was separate outlet of the plaintiffs water as coming to the intervening public road without any natural flow towards the defendant's property, the situation would have been different. The authority cited by Mr. Chhatrapati, therefore, does not lend any support to his submission of the absolute character as was put forward by him.
8. There is one judgment of the Calcutta High Court clearly supporting the view taken by me above. It is the case of Natabar Sasmal v. Krishna Chandra Bera : AIR1942Cal261 . In that case it has been held inter alia as follows :-
'The owner of a lower heritage cannot escape the burden of receiving the water which falls from a piece of higher ground merely because the water flows across an intervening tenement belonging to another person.'
9 to 11. x x x
12. Appeal allowed.