1. This appeal is directed against the judgment and decree of the learned Extra Assistant Judge, Baroda confirming the judgment and decree passed by the learned 3rd Joint Civil Judge Junior Division, Baroda in regular civil suit No.1489 of 1962, with the modification that it was open to the defendants to make any construction or to utilize their land in any manner they may like, if they can adopt measures by which they can utilize the land without causing injury to the plaintiff's land.
2. The facts giving rise to this appeal briefly stated are as under:-
One Haribhai Ranchhodbhai Desai filed a suit against the present appellants alleging that he was the owner of the property described in details in para. 1 of the plaint. According to him, there was a ravine to the west and north of his property; that in 1959, the said ravine was filled up by the defendants viz. the present appellants, as a result, the rain water could not pass through the ravine and began to overflow through the Pratap Ganj area. The plaintiff thereupon made an application to the Baroda Borough Municipality and the Municipality got the rubbish removed from the ravine as a result, the water began to flow through the ravine as before. According to the Plaintiff, again, in 1962 October, the defendants began to fill up the said ravine with burnt coal, ash and about half the ravine was already filled in, with the result that there was danger of the course of natural water channel passing through the ravine being changed, resulting in his land being washed away. He further contended that if the said ravine was filled up, the water would overflow his land and there was danger of the buildings, constructed by him in the land, falling down as a result of the land being overflooded resulting in damage to the tune of several thousands of rupees. According to the plaintiff, this ravine was a public ravine and that the defendants had no right to prevent the water flowing through the said ravine. The plaintiff thereupon filed the suit and prayed for a mandatory injunction directing the defendants to remove the rubbish with which the said ravine was filled up and for a permanent injunction restraining them from filling up the said ravine in future so as to the natural flow of water in the monsoon. The defendants filed their written statement wherein they denied that it was a public ravine. According to them, it was not a big ravine but it was a pit situated in their own land bearing survey number 931 which was of their exclusive ownership. They denied that in 1959, they had filled up the ravine as stated in the plaint. They denied that by their act, there was any danger to the property of the plaintiff as a result of his land being flooded as stated in the plaint. According to the defendants, the suit as framed was not maintainable and that it was barred by limitation. From the pleadings of the parties, the learned trial Judge framed the following issues-
'(1) Whether the suit as framed is tenable at law?
(2) Whether the plaintiff is entitled to file the present suit?
(3) Whether the plaintiff proves that there are Kotars to the west and north of the suit land?
(4) Whether the defendants Nos. 1 and 2 prove that the land to the north and west of the suit land is of their exclusive ownership?
(5) Whether the plaintiff is entitled to the prayer for reliefs ?
(6) What order and decree?'
It may be noted that at the time of arguments, the learned Advocate for the defendants specifically urged that the suit as framed was not maintainable under Section 91 of the Civil Procedure Code because the injury claimed by the plaintiff was in the nature of public nuisance and unless the permission of the Advocate-General was obtained or unless the plaintiff proved the special damage, the suit would not be maintainable. It was also urged that the suit was not maintainable under Order 1, Rule 8 of the Civil Procedure Code as the plaintiff had not obtained the permission of the court to file a suit on behalf of himself and others. It was urged that besides the plaintiff, other persons owning properties in the vicinity would also be affected by the acts of the defendants. It was, therefore, urged that as they all were interested in the suit, the plaintiff should have filed a representative suit and this can only be done with the permission of the court and by issuing a notice on the persons concerned. The learned Judge decided issues Nos. 1, 2, 3 and 4 in the affirmative and passed a decree in favour of the plaintiff permanently restraining defendants Nos. 1 and 2 from filling up the Kotar situated south-north and west of the plaintiff's property and restraining them from changing the flow of the water in the channel. He, however, refused to grant the relief for a mandatory in junction for removal of the rubbish with which the said ravine was filled up Against the said judgment and decree of the learned trial Judge, the defendants filed regular civil appeal No. 525 of 1964 in the District Court at Baroda which was heard by the learned Extra Assistant Judge Baroda. The learned Assistant Judge confirmed the decree with the modification as stated above. Against the said judgment and decree of the learned Extra Assistant Judge, Baroda, defendants Nos. 1 and 2 have prefered the present appeal to this court.
3. Mr. N. R. Oza, learned Advocate for the appellants raised the following contentions before me:-
1. The suit as framed was not maintainable under Section 91 of the Civil Procedure Code.
2. That the suit also was not main- in view of the provisions of Order 1, Rule 8, Civil Procedure Code.
3. That even assuming that the suit was maintainable, the plaintiff would not be entitled to any relief as prayed for, for the simple reason that he had made a change in the constitution of his land by constructing buildings therein. As a result of the construction of these buildings, the natural condition of the land was changed and therefore, the plaintiff would not be entitled to the benefit of Section 7 of the Easements Act.
4. Lastly, it was urged that even if it was held by this court that the plaintiff would be entitled to the relief for permanent injunction, the same should be confined only with regard to the flow of natural water in the monsoon and that it should not include the flow of water as a result of unprecedented unforeseen floods.
4. Mr. S. B. Vakil, learned Advocate for the respondent No. 1 on the other hand urged that in the instant case, the plaintiff had already alleged special -damage to his property by the act of the defendants. Under the circumstances, there would be no bar of Section 91, Civil Procedure Code in the maintainability of the suit. He submitted that order 1, Rule 8, Civil Procedure Code would not come into play in the present case because the plaintiff had not filed the suit on behalf of himself and other persons. He submitted that under Section 7 of the Easements Act, the plaintiff was entitled to flow of water through the disputed ravine as before because his land was situated lower to the land of the defendants. He urged that if the defendants filled up the ravine, naturally the water channel which existed there, would be ineffective and the rain water would enter his land from the land of the defendants, resulting in great damage to his property. He urged that the question of changing character of the land did not come in the picture at all in the instant case because as an owner of the land, which it was lower in level to that of the defendants, he was entitled to see that the water which flowed through the natural channel passed off without entering his land. Even if he had not constructed any building, if the water channel was filled up, naturally the water would spread and overflood his land. He, therefore, urged that the submissions made by the learned Advocate for the appellants that the plaintiff was not entitled to any relief under Section 7 of the Easements Act, were devoid of any merit.
5. It may be noted at the outset that the pleadings of the plaintiff as well as the defendants are not very specific. The plaintiff in his plaint has described the ravine as a public ravine. Thus, if according to the plaintiff there was any obstruction of the public ravine at the hands of defendants Nos. 1 and 2, it would amount to public nuisance. Therefore, if the plaintiff filed any suit for removal of that public nuisance, Section 91, Civil Procedure Code would come into play. It says-
'(1) In the case of a public nuisance the Advocate-General or two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.'
Thus, Section 91 merely provides that any two or more persons having obtained the consent in writing of the Advocate General may institute a suit in case of a -public nuisance though they may not have suffered any special damage, for a declaration and injunction or any other appropriate relief. This section in no way restricts the right of a party to the filing of the suit if otherwise he can' do so under any other law. In the instant case, apparently, according to the averments made in the plaint, the plaintiff had alleged that, as a result of the act of the defendants Nos. 1 and 2, his Property was liable to be damaged. Thus, the plaintiff from the beginning had come out with a case of special damage to himself. Thus, even if the suit contemplated a relief with regard to the removal of public nuisance, if the plaintiff suffered any special damage, it was not necessary for him to obtain the consent in writing of the Advocate-General before instituting the suit.
6. Mr. Oza, in support of his case relied on the case of Appayya v. Lanka Narasimhalu : AIR1938Mad338 , wherein it was observed that-
'The construction of a channel through village site is nothing more than a common nuisance and unless special damages are established, the only manner in which a common nuisance can -be abated is by a suit to be brought under Section 91 with the permission of the Advocate-General.'
In my opinion, this case will not help the appellants at all. In that ease, when a channel was dug through the village site, and when it passed in front of the house of the plaintiff, the plaintiff brought a suit on behalf of the village community for a mandatory injunction requiring the defendants to block up that part of the channel which lies within the village site. Thus, if the plaintiff filed a suit not only on behalf of himself but on behalf of the whole village community with regard to a public nuisance, Section 91, C.P.C. would govern the case and it was essential for the plaintiff to obtain the consent in writing of the Advocate-General. In the instant case, the plaintiff had filed the suit on behalf of himself. He had not filed the suit on behalf of the community or other persons affected by the acts of the defendants. Besides, as stated earlier, the plaintiff has averred that he had suffered special damage. Under the circumstances, as stated in Section 91 of the C. P. Code, as the plaintiff had suffered special damage, it was not obligatory on him to obtain the consent in writing of the Advocate-General of the State and the suit as framed was maintainable. It may be noted that even in this ruling, it was observed by the Madras High Court that-
'A mere failure to obtain the permission of the Advocate-General would not render a suit not maintainable if no objection is taken by the other side at the earliest stage,'
In the instant case, it is interesting to, note that barring the bare statement in the written statement that the suit was not maintainable, it was not the case of not main the defendants that the suit was bad because of the provisions of Section 91 or because of Order 1, Rule 8 of the C. P. Code. Only at the fag end at the time of the arguments, the learned Advocate for the defendants raised this contention. No issues were framed by the learned Judge below. Therefore, if there is no clear cut finding recorded by the learned trial Judge about any special damage suffered by the plaintiff, it cannot be said that the suit would not be maintainable. It is also interesting to bear in mind that even though the plaintiff had averred in his plaint that the ravine in question was a public ravine, ultimately from the evidence both the courts have recorded a finding that the ravine in question was part of the land belonging to the defendants. Therefore, in any case of the matter, it cannot be said that the nuisance complained of was a public nuisance. In my opinion it was a nuisance which affected vitally the plaintiff only and if the 'Plaintiff was affected by the acts of the defendants, he could file a suit against them for appropriate relief. If the other persons who were affected by the act of the defendants were prepared to join the plaintiff in the suit, then they could only do so under the provisions of Order 1, Rule 8, C. P. Code. But the other persons had not come forward and the plaintiff had not filed the suit on heir behalf. In my opinion, therefore, the question of Order 1, Rule 8, C. P. C. being applicable would not arise at all. In my opinion, therefore, both the courts were right in negativing the contention raised by the defendants that the suit was not maintainable as framed.
7. The crucial question which arises for my consideration is whether the plaintiff would be entitled to the reliefs prayed for. It is not disputed before me that the disputed ravine is a part of field bearing survey number 931 belonging to the defendants Nos. 1 and 2. The sketch Ex. 114 shows that to the north of the disputed land there is a public ravine over which there is a culvert. Water which passes through this culvert and the ravine enters the disputed ravine and thereafter it again joins the ravine known as Bhukhi Kotar and through that Bhukhi Kotar, the water would flow into river Vishwamitri. The evidence shows that even though this is a defined water channel, it is dry in most part of the year and only during the monsoon season, rain water flows through this water channel. Defendants have partially filled up this portion of the water channel which is part of their land. According to the learned Advocate for the defendants-appellants the defendants could make use of their land in any manner they liked and it was not open to the plaintiff to prevent the defendants from making legitimate use of their land. Both the sides relied on Section 7 of the Easements Act, It says:-
'Easements are restrictions of one or other of the following rights (namely):-
(a) Exclusive right to enjoy.- The exclusive right of every owner of immovable property (subject to any law for the time being in force ) to enjoy and dispose of the same and all products thereof and accessions thereto.
(b) Rights to advantages arising from situation.- The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.' Several illustrations are appended to this section of which illustration (h) is relevant. It says-
'The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel, shall be allowed by other persons to flow within such owner's limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner's limits without material alteration in quantity or temperature.'
In the instant case, both the courts below have recorded a finding that the disputed ravine was a natural water course. The question, therefore, which would arise for my consideration is whether the defendants had any right to change the flow of water through this natural stream. According to the plaintiff, if this natural stream was filled up, the result would be that the water coming from the northern Kotar would stop at the defendants land and thereafter overflow his lands which were abutting the lands of the defendants. According to the plaintiff, in 1959, the defendants had similarly filled up this ravine and he had approach- the Baroda Borough Municipality for necessary redress. The Borough Municipality had intervened and the said Kotar was cleared up of rubbish. According to the plaintiff, the defendants again in 1962 were trying to fill up this ravine and if the ravine was completely filled up, the whole natural water channel would be ineffective and the rain water would change its course, with the result that his whole property would be flooded with water resulting in great damage to his land as well as bungalows constructed by him thereon. The, plaintiff is supported by some witnesses in this connection. The Baroda University has got lands round about and the Registrar of the University Mr. Zutshi was examined and the engineer was also examined on behalf of the Municipality both of whom have supported the plaintiff's case. Thus, the plaintiff has clearly established that it was a natural stream through which water was flowing. Thus, as stated in illustration (h), the right of the plaintiff to see that the water flowing through the channel continued as before without any obstruction and that quantity, direction, force and temperature of the water flowing through it was within its limits, finds support from the illustration (h) to Section 7 of the Easements Act. It may, however, be remembered that the plaintiff does not make a grievance because he is deprived of the use of the water which was flowing through this natural stream. It is not his case that because the natural stream is filled up by the defendants, the water flow would be diminished, as a result, he would be deprived of the water which was beneficial to his lands abutting this stream. His grievance is that if the water was not allowed to flow as before, the water which used to pass through the natural stream would spread over his lands resulting in damage to the lands as well as the property constructed thereon. Apprehending this danger, the plaintiff has claimed the relief of injunction restraining the defendants from interferring with the natural stream. Mr. Oza, however, contended that the right claimed by the plaintiff would be available to him only if the lands were allowed to remain in the natural state. He submitted that if the plaintiff had altered the condition of the lands, by making constructions thereon, he cannot claim any natural right as stated in Section 7 of the Act. In support of his. case,Mr. Oza referred to the following cases:-
8. In the case of Rasiklal Manilal Bhatt v. Savailal Hargovinddas Sur, AIR 1955 Born 285, it was observed that-
'The effect of illus. (e) to Section 7 (b), Easements Act read in the light of the Explanation appended to it is that the right which is referred to in Section7 (b) is applicable only to the land in its unburdened and natural state; it is not applicable to the structure built on the land. That is not to say that a similar right cannot be acquired by such structures. But it is not a natural right and if the structure intends to claim such a right it would be only by a process of prescription'.
In order to appreciate these observations, it would be worthwhile to refer to the facts of that case. There, the property in question was situated at Rajpipla. The plaintiff owned a Wada to the south of which was a public gutter and to the south another residential house of the plaintiff. The defendant owned a Wada to the north of the plaintiff's wada and he too owned a residential house. In 1945, the plaintiff built the house in question with its northern wall constructed Wada. In the suit he alleged that beyond his wall. the defendant had dug a ditch in 1946-47 and had diminished and materially affected the lateral support which his wall was entitled to receive from land belonging to the defendant. That was the basis on which he claimed mandatory injunction against the defendant calling upon him not to use the ditch and close it at his cost. In other words, the plaintiff claimed a lateral support for wall from the land of the defendant. It is in this context that Gajendragadkar, observed that the natural right as stated in Section 7 of the Easements Act would be available only to the land in its natural state and it cannot govern any construction made thereon. He, however, held that such a right with regard to a structure could be acquired as easement by prescription. Mr. Vakil therefore, urged that this ruling would not help the defendants at all. According to him, the plaintiff in the instant case did not claim any lateral support from the land. The plaintiff merely wanted to see that the water which used to flow through the natural stream should continue to flow as before without any obstruction on the part of the defendants. He, therefore, urged that the ratio of the Bombay case would not be applicable to the facts of the instant case. In my opinion there is great force in the submissions made by Mr. Vakil. It may be remembered that even if the plaintiff had not made any construction in his land, he would be entitled to claim the appropriate relief from the defendants if by their act, his land was overflooded with water. By making the constructions in his land, he has not altered in any way the natural condition of the water stream by constructing buildings on his own land. Thus merely because plaintiff has made constructions on his own land ,it cannot be said that he would be helpless and with out any remedy if the defendants by their action stopped the natural flow of water through the water channel and allowed the water to inundate his land. The Bombay case could easily be distinguished from the facts of the present case because there, the plaintiff had claimed a lateral support to his structure relying on his natural right as stated in Section 7(b) of the Easements Act. The plaintiff in the instant case has not come forward with any lateral support from the land of the defendants. The plaintiff merely has relied on the illustration (h) under which he would be entitled to uninterrupted flow of water through the water channel. The other cases referred to by the learned Advocate for the appellants also are with regard to lateral support to the structures from the land of the defendants. In the case of Bauribandhu Patra v.Sagar Malla, AIR 1966 Orissa 86, it was observed that-
'A man in exercise of his rights to property can build even to the very extremity of his land and his neighbour has no cause for complaint. If his neighbour also in exercise of his natural right of property digs to the very extremity of his land and his building slips into pit, he has only to thank himself. But when the plaintiff's land is not in its natural state, but is burdened by the boundary wall and by the building the natural right of property as enunciated above can have no application to his case.'
Similarly, in the case of Gopalakrishna Panicker v. Thirunakkara Devaswom, AIR 1959 Ker 202, it was stated that-
Section 7 gives an exclusive right to every owner of immovable property to enjoy and dispose of the same etc. It also gives a right to every owner of immovable property to enjoy without water disturbance by another natural advantages arising from its situation. Where the defendants' land is about 10 feet lower than that of the plaintiff, the plaintiff's land in its natural condition will have the support naturally rendered by the defendants' land. The explanation to Section 7 makes it also clear that land, to have this right, should not have been subject to artificial pressure. Where, the compound wall on the plaintiff's land which was alleged to have been affected, by reason of quarrying on the defendants' land, was only constructed about 10 years prior to the suit, in order to see whether the plaintiff has any further rights, one must look up to Section 15 of the Act which provides that lands, subject to artificial pressure, receiving support from another person's land, should have had that benefit without interruption for 20 years and that 20 years must expire 2 years before the institution of the suit. Where the plaintiff has not been able to satisfy the provisions of Sections 7 and 15 of the Easements Act, the plaintiff's suit for damages, on the ground that the compound wall was damaged due to quarrying on the defendant's land must fail.'
With respect, I am in complete agreement with the principle enunciated in the three rulings referred to above. As already stat- earlier, in the instant case, the plaintiff has not claimed any damages for any loss which may be caused to the building constructed by him as a result of flood water, inundating his land. He has not claimed any lateral support from the land of the defendants for his structures. The only relief is claimed by him that the defendants as riparian owners should allow the natural monsoon water to pass through the stream which was passing through their land, in such a manner that the land of the plaintiff which was Just adjacent to it, may not be injuriously affected. The plaintiff has not stated that as a result of excessive rain water passing through the water channel if his land is inundated, he would also have actionable claim. The only relief prayed for is that the water stream must be allowed to flow as before so as to permit the flow of the monsoon -water without any interruption. For this proposition, of law, the plaintiff relied on the illustration (h) given in Section 7 of the Easements Act. In my opinion, the plaintiff is right in his submission. It is not disputed that the land of the defendants is situated on the higher level. It is therefore but natural that the water would pass through the land of the defendants through this defined natural stream and would go downward passing by the land of the plaintiff.
The plaintiff cannot object to the flow of this water passing by his land. His objection, however, is that the defendants are trying to change the course of this natural stream by filling it up. According to the plaintiff, if this natural stream is filled up, there will not be any natural outlet for the flow of monsoon water, with the result that the monsoon water would spread over the land of the adjacent fields as a result, his property would be damaged. it cannot be said that the right which the plaintiff claimed is not a natural right as defined under Section 7 of the Act. If the plaintiff had claimed any reliefs with regard to his own structures, the learned Advocates for the defendants would have been on a surer ground in stating that the plaintiff would not be entitled to any relief as -prayed for. Therefore, while agreeing with the observations made in the above rulings, in my opinion, the ratio of those cases will not govern the instant case.
9. The evidence recorded by both the courts below shows that this was a natural stream which was passing through the defendants' land. The evidence of witnesses shows that when the defendants Nos. 1 and 2 had tried to interrupt this natural stream in 1959, there was danger of the plaintiff's land being inundated and the Municipality had to intervene and get the rubbish removed from the water channel. The evidence led by the plaintiff also shows that the defendants again have been trying to fill up the water channel. They began doing so in October, 1962 and the appellants have filled up half the water channel. This fact has not been challenged before me. The learned Assistant Judge has considered the rights of both the defendants and the plaintiff with regard to exclusive use of the respective lands. He has observed-
'But the defend-ants are intending to fill up the entire water course so that the water would be thrown back. The water is bound to find its own level. The water would come up to the culvert and if the defendants would bring the level of their land higher than the Government land or the land of the plaintiff then the result would be that the plaintiff's land would be flooded. So, such an action of the defendants is not protected under the provisions of law. It is true that they can construct a building if they so desire and it would not be proper on the part of the plaintiff to prevent them from doing so. But their land is subject to a liability of a natural easement and they have no right to utilise their land in such a manner as to cause damage to the properties of others. They have no right to protect their property or to utilize their property by transferring the mischief from their own land to that of another,'
I entirely agree with the observations made by the learned Judge. It is true that it is open to the defendants to use their property in any manner they liked. However, their right was subject to the liability of the natural easement which existed for the last several years. They, therefore, cannot use their land in a manner which would cause damage -to the land of the plaintiff. From the evidence it transpires that even though the ravine was half filled up, it had no affected the normal flow of monsoon water for all these years. The learned trial Judge, therefore, refused to pass a decree for mandatory injunction directing defendants Nos. 1 and 2 to remove the rubbish with which they had filled up the ravine. The learned trial Judge, however, passed a decree for a permanent injunction restraining defendants Nos. 1 and 2 from filling any Kotar situated south-west on the plaintiff's property so as to block the flow of rain water and permanently restraining them from changing the flow in the channel. This decree of the learned trial Judge was modified by the first appellate Court and it was declared that it was open to the defendants to make any construction or to utilise their land in any manner they may like if they can adopt measures by which they can utilise their land without causing an injury to the plaintiff's land. Mr. Oza, therefore, urged that the evidence clearly indicated that even though the water channel was half filled up, the monsoon water could pass through it, without any detriment or danger to the plaintiff's property. Mr Oza, therefore, urged that the observations of the learned Assistant Judge that the defendants must also take into consideration the floods that may come in future on account of excessive rain am not proper. Mr. Oza submitted that one cannot make any provision for unprecedented unforeseen floods. The natural right which the plaintiff possessed would, be of flow of water through this stream in normal monsoon. He urged that for the last several years, in spite of water channel being half filled up, the, Plaintiff's land was not overfIooded. Under the circumstances, there was no necessity to make any observations in the body of the judgment with regard to the flood water. Mr. Oza, therefore, urged that if the decree of the learned Assist ant judge as be confirmed by this court, it should be done with the modification that no account should be taken of flood water. Mr. Oza, in fact, urged that no such account of unprecedented flood can be taken into consideration while passing a decree for injunction in favour of the plaintiff. In this connection, he referred to the case of P. Seetharamayya v. G. Mahalakshmamma, AIR 1958 Andh Pra 103, wherein, it was observed that-
'There is a distinction between water coming on land in the normal way and water coming on abnormally. The former is an incident to property from which a man may not relieve himself at the expense of his neighbour; the latter is a common enemy, against the advent of which each may take precautionary measures without regarding his neighbour, though when the evil has Once befallen him, he may not shift it from his own shoulders to those of his neighbours; he may protect his land, but may not relieve his land from actual injury at the expense of his neighbour.'
There is great force in the submissions made by Mr. Oza. After all, natural stream which existed on the land of the defendants provided an outlet for the monsoon water to flow through it smoothly without overflowing over the land of the plaintiff. The evidence on record clearly shows that even after the pit through which the water flowed was partially filled up by the defendants, the remaining depth of the pit was sufficient to permit normal monsoon rain water to pass through it without overflowing the land of the plaintiff. Mr. Vakil, learned Advocate for the plaintiff however, urged that there cannot be any distinction between normal rain water . and flood water. He urged that the pit over the land of the defendants which had turned, into a natural stream for the flow of water should be allowed to remain in its original position so that not merely normal rain water but even flood water may pass through it without overflowing the land of the plaintiff. He relied on the following observations of the Supreme Court in the case of Rudrayya v. Venkayya, AIR 1961 SC 1821: -
'Where a right is based upon the illustration (i) to Section 7 the owner of higher land can pass even flood water received by him on to the lower land, at any rate where the flood is a usual or a periodic occurrence in the locality. The water on a higher ground must by operation of the force of gravity flow on to 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. The cases pertaining to riparian lands must be distinguished from such cases. Further the only right which a riparian owner may have is to protect himself against extraordinary floods. But even then he would not be entitled to impede the flow of the stream along its natural course.'
Relying on these observations, Mr.Vakil vehemently urged that the defendants should not do any such act so as to impede the flow of the stream in its natural course. In my opinion, Mr. Vakil is not right in interpreting this authority in a manner so as to restrict the right of the defendants to use the land of their ownership for all time to come. Both the courts from the evidence on record have come to the conclusion that even though the water channel was partially filled up in 1962, for all these years, the water has not overflowed the field of the plaintiff. The evidence on record does not show that there were periodical floods in Baroda. Therefore, there can be no question of taking into consideration the periodical floods while considering the question whether the defendants should be permanently restrained from using the pit in any manner as a reasonable owner would do of his own land. As the evidence does not show that there were periodical floods in Baroda, the floods referred to by the learned Assistant Judge can only mean unprecedented floods. In my opinion, unless there was imminent danger of flood, no account can be taken of such unprecedented and unforeseen floods while deciding the present suit. But taking into consideration the law of average, it can safely be said that the water channel in its present position does, not pose a serious threat to the plaintiff's land at all. The plaintiff cannot come to the court and request that the water channel should be restored in its original position so as not to impede the flow of stream in its natural course even with regard to flood water. The court while granting appropriate relief has to take into consideration the imminent danger and not distant future danger. In this connection, it will be worthwhile to refer to the case of Fletcher v. Bealey, (1885) 28 Ch D 688, wherein at page 696, it was held that-
'Proceeding upon practical views of human affairs, the law will guard against risks which are so imminent that no prudent person would incur them, although they do not amount to absolute certainty of damage. Nay, it will go further, according to the same practical and rational view, and balancing the magnitude of the evil against the chances of As occurrence, it will even provide against a somewhat less imminent probability in cases where the mischief, should it be done, would be vast and overwhelming.
Accordingly, if it appeared that the works in question could hardly be used without damage to the inferior districts, I might hold that erecting them was, in itself, a beginning of injury, though there might be a possibility of otherwise using them; and if the damage, should it happen at all, were the destruction of the navigation, and the subjecting of the lower districts to a deluge, I might scrutinize less narrowly the probability of the engines being injuriously worked'. Again, at page 698 it was observed-
'There must, if no actual damage is proved,. be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage, will be suffered, I think it must be shown that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia time action.'
With respect, I am in complete agreement with the observations made therein. In the instant case, there was no imminent danger of the plaintiff's land being inundated if the water channel in its present condition on the date of the suit continues. For the last several years, it has not happened that the plaintiff's land was flooded with rain water, because of the partial filling up of this ravine. Under the circumstances, it was not necessary for the learned Assistant Judge to qualify his final order with regard to the danger of flood water which was not imminent. With these observations, the judgment and decree of the lower court are confirmed and the appeal is dismissed. In view of the facts of this case, there will be no order as to costs. At this stage, Mr. Vakil, learned Advocate for the respondent-plaintiff made an oral request for a certificate to file an appeal under the Letters Patent. In my opinion, the mint involved is not so important as to grant a certificate for filing an appeal under the Letters Patent. The oral request therefore, for a certificate is rejected.
10. Appeal dismissed.