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Melepat Madhathil M.R. Venkitaraya Aiyar and anr. Vs. Neelamane Sankaran Embrandiri and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1938Mad649; (1938)2MLJ108
AppellantMelepat Madhathil M.R. Venkitaraya Aiyar and anr.
RespondentNeelamane Sankaran Embrandiri and anr.
Cases ReferredSinnana v. Veerappa
Excerpt:
- - 2. the facts are fully stated in the judgment of the learned district munsiff as well as that of mr. what really happened is clearly set out by the district munsiff......for the bund put up by the owner of c on his own plot to defend it from injury. the water on the upper land is not thus, what in the ordinary course of nature, rises in or falls upon it; in other words, it is foreign water so far as plot b-1 is concerned. by the act of the owner of c and not in the natural course, did the water discharge itself upon b-1. having entered that land, it stopped there and it was by a further act of the defendants, as will be shown, that it overflowed the plaintiff's plot. the natural right of the upper owner does not pertain to what may be termed foreign water, and the finding therefore that the water in question is foreign to the defendants' land, is fatal to their claim.7. secondly, as already observed, there is no obligation upon the inferior tenement to.....
Judgment:

Venkatasubba Rao, J.

1. This is a Letters Patent appeal from the judgment of King, J., which has confirmed the concurrent decision of the two Courts below.

2. The facts are fully stated in the judgment of the learned District Munsiff as well as that of Mr. Stodart the District Judge. The point for decision is whether the plaintiff was entitled to put up a dam to prevent the escape and overflow of water from the land of the defendants over his land. The plaintiff having been held to possess the right, the defendants have filed this Letters Patent Appeal. The relative positions of the lands in question may be briefly described. The plaintiff owns the plot A, which comprises plot D which the lower Courts have found belongs to him; the embankment or dam to prevent the overflow has been erected in the last mentioned plot D. To the south of A and contiguous thereto, are three plots B, B-1 and C; B-1 is to the east of B and C is to the east of B-1. The former two plots belong to the defendants and the latter to a third party with whom we are not concerned. To the south of B-1 is plot E, of which also the defendants are the owners. A channel runs at the southern extremity of B and B-1, dividing B-1 from E and flowing northward into C. Till 1911 the water of this channel dispersed itself over the surface of C and did not come upon either the plaintiff's land or any of the defendant's plots. For the first time in that year, the owner of C turned the water away from his land into plot B-1 owned by the defendants. What really happened is clearly set out by the District Munsiff. The channel in question brought rain water from some parambas a few furlongs off and along with the water, was carried a lot of sand and gravel. The part of C nearest B-1 became blocked up with silt and the owner of C, with a view to protect his lands, put up some dam which had the effect of diverting the water, which then discharged itself over B-1. The defendants complaining that their lands were injured, filed a suit against the owner of plot C, which however owing to some compromise, was later withdrawn. Finding that gradually mischief accrued to their own land, the defendants did certain acts to which we shall presently refer, which made the water overflow plot D, the plaintiff's land. The question, as already stated is, whether the plaintiff was justified in putting up the embankment referred to above to prevent the overflow.

3. The contentions of Mr. Raghava Rao the appellants' learned Counsel, relating to the natural rights and riparian owners, seem quite beside the mark and do not call for notice. The law governing the point is thus stated in Peacock on Easements:

There is a natural right of drainage from higher lands to lower lands of water flowing in the usual course of nature and in undefined channels. (3rd Edn., page 293.)

4. This principle is embodied in illus. (i) to Section 7 of the Easements Act.

5. The plaintiff does not dispute that his land is on a lower level than the defendants' plots. The right, however, of the superior proprietor is not quite absolute. It would not, for instance, be within his right to introduce water which was foreign to the land (Coulson and Forbes on Waters, 5th Edn., pages 142 and 143). Further, there is no obligation upon the owner of the lower land to submit to an artificial discharge of water from his neighbouring lands (Peacock on Easements, 3rd Edn., pages 293 and 294).

6. First, the water would not have entered the defendants' land, as must be evident from what has been stated above, but for the bund put up by the owner of C on his own plot to defend it from injury. The water on the upper land is not thus, what in the ordinary course of nature, rises in or falls upon it; in other words, it is foreign water so far as plot B-1 is concerned. By the act of the owner of C and not in the natural course, did the water discharge itself upon B-1. Having entered that land, it stopped there and it was by a further act of the defendants, as will be shown, that it overflowed the plaintiff's plot. The natural right of the upper owner does not pertain to what may be termed foreign water, and the finding therefore that the water in question is foreign to the defendants' land, is fatal to their claim.

7. Secondly, as already observed, there is no obligation upon the inferior tenement to submit to an artificial discharge of water from the higher ground. When land is so located that water naturally or in the course of ordinary agricultural operations, descends from the estate of the superior proprietor to the inferior estate, the owner of the latter cannot do any thing to prevent the course of such water. The upper proprietor may drain his land, and the proprietor below must receive the water so drained; but the upper proprietor may not by adopting a particular system of drainage or by introducing alterations in the mode of drainage, cause the drainage water to flow on his neighbour's land in an injurious manner (Kerr on Injunctions, 6th Edn., page 231). Further, the upper owner is not entitled to do anything that will throw on the inferior tenement any water which would not naturally come there (Ramaswami v. Rasi (1931) 25 M.L.J. 276 : I.L.R. Mad. 149 . The effect of the finding here is, that the water, after it had been allowed to enter B-1, would in the ordinary course have diffused itself over B, B-1 and E (the defendant's plots) ; possibly some water might have also escaped on to the plaintiff's plot. But in the course of years since 1911, the channel was 'so trained to run' (as the District Judge tersely puts it) by the defendants, that the water was diverted to the plaintiff's plot - that is the clear finding of the District Judge. They did something more; they strengthened a bund where the channel intersected E, with a view to prevent injury to that plot (see the Munsiff's judgment). Thus it will be seen that the water descending on the plaintiff's land is not 'water which drains naturally' (Kerr on Injunctions, page 261). This finding again is equally fatal to the defendants' claim. True, the upper proprietor has the right to collect the water falling from the higher ground in one body in the course of draining his land; but that right again is not absolute. As observed by Lord Dunedin:

If the water which would otherwise fall on the higher ground, without hurting the inferior tenement, should be collected in one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is, without the positive constitution of any servitude, bound to receive that body of water on his property. (The material words have been underlined.)

8. Gibbons v. Lenfestey (1915) 113 L.T. 55 cited in Coulson and Forbes on Waters, 5th Edition, page 142; see also Sinnana v. Veerappa : AIR1930Mad676 . The limit of the right is in the above passage defined and from what has been stated above, it is clear that it has been exceeded.

9. Whether the water-course here can be properly described1 as a 'stream' is a question we need not go into; for, by whatever name called, it ended naturally in plot C and did not flow further. But if the description given of it by the learned District Munsiff is correct, it can hardly be regarded a natural. stream. There is a distinction to be taken in law between a regular flowing stream of water, though it sometimes may be dry, and those occasional bursts of water which in times of freshes or melting of ice and snow descend from the hills, and inundate the country. (Angell on Water-courses, cited in Gale on Easements, 11th Edition at page 267 footnote). As already observed, on this distinction nothing turns.

10. In the result, the Letters Patent Appeal fails and is dismissed with costs.


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