1. This appeal is preferred by the first defendant representing the Vizianagaram Estate against the decision in a suit for an injunction to restrain the first defendant from altering the course of the channel to the detriment of the plaintiff. It seems to be established on the findings of the Courts below that the channel marked DD in the plan attached to the plaint and also in the Commissioner's plan flowing west to east, has been diverted by means of an embankment so that it flows southwards along the path marked EE-1 on the plan and that an incidental consequence of this diversion has been damage to the plaintiff's land which is situated to the west of the diversion. It is contended for the appellant that the duty imposed upon a Zamindar to construct and maintain irrigation works gives him a right to create any new works which he finds to be necessary in the interests of irrigation and imposes an obligation on third parties to construct such protective works as may be necessary to prevent damage to their lands resulting from the new works. It seems to me that this is an overstatement of the legal position of the Zamindar with reference to irrigation. It is true that this Court held in Gajapathi Krishna Chandra Deo v. Raja of Vizianagaram (1930) 60 M.L.J. 662, that the rule in Rylands v. Fletcher (1868) 3 H.L. 330, is not applicable to Indian irrigation conditions. The storing of water in an agricultural tank is a natural and lawful user and is not actionable for damage in the absence of negligence. This is quite another matter from holding that either a Zamindar or Government are entitled to construct new irrigation works so as to damage the lands of others without any liability for the damages so caused. It was held by a Bench of this Court in Sankaravadivelu Pillai v. Secretary of State for India in Council (1904) 15 M.L.J. 32 : I.L.R. 28 Mad. 72 that
The rights of Government, in connection with the distribution of water, did not include a right to flood a man's land because, in the opinion of Government, the erection of a work which has this effect is desirable in connection with the general distribution of water for the public benefit.
2. I know of no principle upon which the rights of a Zamindar can be placed any higher than the rights of the Government with reference to irrigation. It is one thing to say that the Government or the Zamindar has the right to restore an irrigation work to its former condition without regard to the fact that the restoration will result in the submersion of lands which, owing to the disrepair of the work, had for sometime been immune from submersion. It is another thing to say that the controlling authority has the right to construct the new work so as to submerge the lands of third parties not hitherto liable to submersion without compensation for the damage thereby caused.
3. To my mind it is the duty of the controlling authority when constructing a new work in the interests of irrigation facilities generally to take such reasonable precautions as are obviously necessary to prevent damage to others. This is not to say that the irrigation authority is prima facie liable for the consequence of any escape of water from an irrigation tank owing to an act of God or to some unforeseen and improbable rush of water; but that there is a duty to provide such protection against the ordinarily anticipated flow of water, as would safeguard third party's lands from damage as a result of the new work of irrigation. Applying this principle to the present case, it would appear that the estate has diverted the flow of water along a pathway without any precautions to prevent the water from damaging the plaintiff's land which lies adjacent to that pathway. The plaintiff has, in my opinion, a right to require the estate to construct such protective works as may be necessary to prevent damage to the plaintiff's lands from the flow of water which may ordinarily be expected in the channel and the plaintiff has a right to demand that the pre-existing course of the channel shall not be altered except after the completion of the protective works necessary. I do not think that the plaintiff has the right to require the defendant to maintain the course of the channel for ever in one particular bed. But he has the right to insist that any alterations which the controlling authority may find necessary, shall not work to his detriment. In this view it seems to me that the injunction granted by the lower appellate Court goes too far and requires modification. The modification which I propose to introduce will make it unnecessary to go into the question whether the injunction cannot be granted for want of the presence of the owners of the land through which the old course of the channel passed from the record of the case.
3. But I observe that the plaintiff asserted that the eighth and ninth defendants were the owners of that land, that this assertion was not traversed in the written statement and that in the absence of an issue regarding non-joinder or of any plea to substantiate such an issue it is not proper to non-suit the plaintiff for want of other parties. In the result the appeal is allowed and the injunction granted will be modified, the first defendant being restrained from damaging the plaintiff's land by the diversion of the course of the channel marked DD in the plaint plan so as to flow along the path marked EE-1 in that plan and the first defendant being required to construct such an embankment as may be sufficient, or so to alter the course of the channel, as to prevent such damage. The appellant having substantially failed will pay the costs of the respondent in this Court.