Madhavan Nair, J.
1. The 1st defendant is the appellant. The plaintiff and the 1st defendant are owners of adjoining lands. The plaintiff's lands lie on the north and the 1st defendant's lands which are on a higher level lie on the south. Along the boundary between their respective lands the 1st defendant put up a bund three feet high and in two particular places in this bund he cut openings for allowing the surplus water collecting on his lands to flow into the plaintiff's lands and thence? into the Palayam channel, which lies to the north of the plaintiff's lands. It is the common case of both parties that the plaintiff's land was part of the Palayam channel until it was granted to the plaintiff in about 1905 by the Government. It has been found by the Courts below that the bund stands on the 1st defendant's lands and was put up by him, though the plaintiff alleged that it belonged jointly to the 1st defendant and himself. The case of the plaintiff is that the 1st defendant is not entitled to drain off the surplus waters of his lands into the plaintiff's lands on the north and that, in any event, he is not entitled to let them off through particular openings in the bund. He therefore instituted the suit out of which this second appeal arises for a declaration that the 1st defendant is not entitled to let off the waters of his lands into the plaintiff's lands and for necessary injunctions for giving effect to that declaration. He also claimed damages of Rs. 200 alleged to have been sustained by him on account of the 1st defendant allowing water to flow through his lands. It may be stated here that the waters which collected on the 1st defendant's lands consisted not only of the rain water but also of the water which he was entitled to bring into his lands for cultivation purposes from the Palayam channel.
2. The District Munsif dismissed the plaintiff's suit holding that the 1st defendant has a natural right to drain off the waters of his fields into the plaintiff's fields lower down under Section 7 of the Easements Act and that he could do this by making openings in the bund as he had been doing so for over 60 years. On appeal the Subordinate Judge held that the 1st defendant had a natural right to drain off into the lower lands of the plaintiff the rain water as well as the water coming into his lands by ordinary agricultural operations, but he held that he had no right to let these waters into the plaintiff's lands through particular vents in the bund as according to his findings he had not established an easement right for doing so by 60 years' user against the Government. He therefore gave a decree for the plaintiff to the following effect:
The 1st defendant will be declared entitled, as a matter of natural right, to drain the surplus waters collecting on his land into plaintiff's lands as they would be according to the natural situation of the fields without any bunds and not by putting up any bund or opening vents into it and an injunction will issue restraining defendants, etc., from letting the waters of the southern fields into plaintiff's land on the north through the vents.
3. The plaintiff's claim as regards damages was dismissed by both the Lower Courts.
4. In Second Appeal Mr. Sitarama Rao contends that the Subordinate Judge declaring the 1st defendant's right to drain off into the plaintiff's fields both the surplus and the artificial waters brought by agricultural operations should have held that he is entitled to do so by opening vents in the bunds so long as no damage is caused to the plaintiff by this procedure. The respondent argues that the appellant is entitled to let off only the natural water and not the artificial water and that this right which he has cannot be exercised by letting the water by opening vents in the bund. Section 7, illustration (1) of the Easements Act states clearly that every owner of upper land has got a natural right that the water rising in, or falling on, such land and not passing in defined channels shall be allowed by the owner of the lower land to run naturally thereto. There can, therefore, be no doubt of the appellant's right to drain off the rain water that collects on his lands into the respondent's lands. (See Beard v. Moria Colliery Co., Ltd. 84 L. J. Ch. 158, Gibbons v. Lenfesty (1915) 113 L.T. 55, Sheik Hussain Sahib v. Subbayya I.L.R. (1925) M. 441 : 1925 50 M.L.J. 377 and Ramakrishnan v. Venkata : AIR1928Mad52 The learned Subordinate Judge says that this natural right has been also held to apply to water coming on the upper land by ordinary agricultural operations. Except the dictum of Sadasiva Aiyar, J., in Doraiswami Muttirian ,v. Nambiappa Muttirian (1918) M.W.N. 167 no authority has been quoted in support of this proposition. Phillips, J., the other member of the Bench, who heard that case did not think it necessary to express a definite opinion as to the nature or the extent of the natural rights, and the learned Judges ultimately decided the case after calling for a finding on the question whether the plaintiff is, by custom or by prescription, entitled to drain into the lower fields the water brought into his land for purposes of irrigation. It appears to us that in India the right of an agriculturist to drain off into the lower lands the. water brought into his land for ordinary agricultural operations is a customary right. He is entitled to do so by custom; otherwise, it will be impossible to carry on agricultural operations successfully. In this case it is not denied by the plaintiff that the appellant has such a customary right; but what he says is that the water of the appellant's lands is being drained away by a different channel. This is what he states in his plaint:
The water of the defendant's lands is being drained into the odai in the east and the nanja fields in the west, but, contrary to the said custom, the 1st defendant made an opening in the bund at the place marked A in September 1919 and discharged into the plaintiff's fields the water which he collected on his own fields and thereby damaged the crops. (See the extract from the pleadings given in the District Munsif's judgment.)
5. It has not been proved that the water of the 1st defendant's land was being drained in the manner alleged by the plaintiff. On the other hand, from the natural situation of the lands of the plaintiffs and the 1st defendant it would appear that the only direction in which the surplus waters collecting on the appellant's land could drain is the northern direction, i.e., into the plaintiff's lands (see the Commissioner's Report). It is also clear from the facts of the case that, before the respondent obtained on dharkast the bed of the Palayam channel, the appellant would have been draining his waters into the Palayam channel itself, as his fields then adjoined the channel. In these circumstances we have no doubt that the appellant is entitled by custom to discharge into the respondent's lands the water coming into his land for ordinary agricultural operations and he has a natural right to discharge the surplus rain water also into the plaintiff's lands. He can exercise this right by opening vents in his bund so long as no damage is caused to the plaintiff. The finding that no damage has been caused has been challenged by the respondent in the memorandum of objections filed by him; but this, being a finding of fact, cannot be questioned in Second Appeal.
6. In view of the facts of the case, no question has been raised with regard to the 1st defendant's right to put up the bund.
7. In the result, we reverse the decree of the Lower Appellate Court and restore that of the District Munsif with costs here and in the Court below.
8. Memorandum of Objections.--The memo of objections is dismissed with costs.