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Nagarathna Mudaliar Vs. Sami Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1936Mad682; (1936)71MLJ187
AppellantNagarathna Mudaliar
RespondentSami Pillai and anr.
Cases ReferredKunjammal v. Rathinam Pillai
Excerpt:
.....the first defendant openly and without interruption. it has been extended to spring water on the land or to water which the proprietor might by operations on the land such as sinking a well or opening a fountain might cause the water to flow. 14. whether this doctrine should be strictly applied to an agricultural country like india is a matter for consideration. 1037: with reference to the ancient user which the district judge has held established he came to the conclusion that from the evidence in the case, which shows an user of at least 35 years as also from the situation of the property considered in the light of the plaintiff's admitted right to use water from the well, the inference was that when the well was built, the persons using the well, of whom the plaintiff's ancestor was..........the inference of a customary right by user for 30 years should not have been drawn as no lost grant or custom was pleaded in the plaint and in the absence of such pleading it will be practically making out a new case for the plaintiff.(3) such a customary right based on lost grant cannot in law be inferred having regard to the fact that the lands in suit are ryotwari lands.9. it is settled law that the owner of a land on a higher level is entitled to send down water which naturally flows on to his land into a lower land whether the said water flows in a definite channel or not. it is a natural right inherent in property and as described by lord waston in john young & co. v. the bankier distillery co. (1893) a.c. 691:it is an incident of property arising from the relative levels.....
Judgment:

Venkataramana Rao, J.

1. The plaintiff is the owner of Survey No. 148 and a portion of Survey No. 147 in the village of Arnoor. The second defendant is the owner of the rest of Survey No. 147. The first defendant is the owner of survey No. 158 which is adjacent to Survey No. 147, and east of it but situate in the village of Overkudi. The suit is for declaration that the plaintiff is entitled to discharge not only the rain water but also the water utilised for irrigation purposes brought on to his land from an adjoining irrigation channel into the land of the first defendant through Survey No. 147 and for an injunction retraining the first defendant from causing obstruction to the flow.

2. The plaintiff's case is that the lands, Survey Nos. 148 and 147, are high level lands and Survey No. 158 is land on a lower level, that from a long time the water which fell on the plaintiff's land always used to be drained through Survey No. 147, then into Survey No. 158 through a Madai in a bund which divided the field of 147 from 158 and then emptied itself into what is called Vadigal Odai which finally emptied itself into the river Vettar, that the first defendant who purchased Survey No. 158 recently began to obstruct the flow which has been enjoyed from time immemorial, that originally the lands were rainfed but subsequently in 1891 they became ordinary irrigated wet lands by an arrangement with the owners of the neighbouring village Pulangudi to get water through their irrigation channel and for nearly over a period of 30 years up to the date of obstruction in 1923 he has been irrigating the said lands and discharging the water through S. No. 158 and there is no other outlet for the flow. The claim as laid in the plaint is as follows.

3. From time immemorial the waters in Survey Nos. 148 and 147 used to drain themselves through the lands of the second defendant in the north-eastern portion of Survey No. 147 into Survey No. 158 and these waters will ultimately drain themselves through a channel lying between Survey Nos. 158 and 157 into Vadigal Odai also shown in the plan. This kind of drainage has been going on from time immemorial and the plaintiff and his predecessors-in-title have been enjoying such right of drainage from before the remote memory of man as a right continuously and without interruption. The plaintiff and his ancestors have thus acquired an easement right to drain the waters in Survey Nos. 148 and 147 as above indicated into the lands of the defendant.

4. Moreover, the geographical configuration of the lands and the relative position of ,the lands is such that the above lands of the plaintiff could not and did not drain themselves in any other manner. On the north of the plaintiff's lands there is the poromboke footpath (hayan karai) a very high embankment on the west and south of the plaintiff's lands, the lands are higher in level than the plaintiff's lands.

5. The prayer is that it be declared that the plaintiff has got an easement right to drain the waters of his lands in Survey Nos. 148 and 147 in the village of Amoor into survey No. 158 of Overkudi village through the lands of the second defendant in the north-eastern portion of survey No. 147.

6. The defence is that the plaintiff never had any right to drain the water in the manner contended for, nor was such right exercised as is alleged in the plaint, that the geographical configuration is not as alleged by the plaintiff, that he has always been draining the water through an escape sluice into the Vettar along the north-west of survey No. 148.

7. The learned District Munsif dismissed the plaintiff's suit but the learned subordinate Judge gave a decree for the plaintiff.

8. The geographical configuration of the land has been found to be as described by the plaintiff. Survey Nos. 148 and 147 are admittedly on a higher level than survey No. 158. The general slope of the lands is from west to east. All the the said lands are south of the river Vettar and there is a high embankment on the north of survey Nos. 148 and 147. The western boundary of survey No. 148 is on a higher level. It is also found that the water from the plaintiff's lands drains itself eastward into the first defendant's field and emptied itself into the Vadigal odai. The vadigal odai starts from survey No. 158 and goes in a northerly direction, joining the Vettar in the east after passing through survey Nos. 154 and 157. Survey Nos. 148 and 147 were till 1891 admittedly manavari and they were not irrigated by any irrigation channel. In 1891 an agreement was entered into between the mirasidars of Poolangudi the adjoining village on the west and the predecessors of the plaintiff by which water from Poolangudi channel was taken to irrigate the plaint lands. It may also be noticed that Poolangudi irrigation channel is shown in the diglot register as an irrigation source for S. No. 148. At the time of the agreement with the Poolangudi mirasdars there was no other course for the water to drain itself from the plaint lands than by passing through the village of Overkudi. It has also been found by the learned Subordinate Judge that until 1921 even the drainage waters from the fields of Poolangudi passed through the plaint lands in an easterly direction and then to the village of Overkudi to the land of the first defendant and then emptied itself into the Manjadi Odappu, a breach in the Vettar and when that Odappu was closed the Poolangudi mirasdars by approaching the Government had a portion of the bund on the northern side of that village at the northern extremity of Section 148 and had a sluice built for the water to escape through it and it is also found by the learned Subordordinate Judge that the drainage water from the plaintiff's lands cannot pass through the sluice which the Poolangudi Mirasdars have provided for themselves as the escape lies in a westerly direction. The learned subordinate Judge also found that from 1891 to 1923 all the water on the plaintiff's lands both rain water as well as water brought on for irrigation purposes was being sent down through the lands of the first defendant openly and without interruption. On these findings the learned subordinte Judge was of opinion that the right of easement as claimed by the plaintiff was proved. He held that the enjoyment for 30 years gave raise to an easement, that the enjoyment had been of right and such rights have been generally recognised as customary rights and not governed by Section 15 of the Easement Act. Mr. T.M. Krishnaswami Aiyar for the first defendant raised the following contentions:

(1) Though the plaintiff might have a natural right to drain rain water which fell on his land, he had no right to discharge water brought on to his land for irrigation purposes;

(2) The inference of a customary right by user for 30 years should not have been drawn as no lost grant or custom was pleaded in the plaint and in the absence of such pleading it will be practically making out a new case for the plaintiff.

(3) Such a customary right based on lost grant cannot in law be inferred having regard to the fact that the lands in suit are ryotwari lands.

9. It is settled law that the owner of a land on a higher level is entitled to send down water which naturally flows on to his land into a lower land whether the said water flows in a definite channel or not. It is a natural right inherent in property and as described by Lord Waston in John Young & Co. v. The Bankier Distillery Co. (1893) A.C. 691:

It is an incident of property arising from the relative levels of their respective lands and the strata below.

10. This principle is embodied in illustration (i) to Section 7 of the Easements Act, which runs thus:

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.

11. This right is not limited to mere rain water falling directly on the land or water flowing in a natural stream over the land. It has been extended to spring water on the land or to water which the proprietor might by operations on the land such as sinking a well or opening a fountain might cause the water to flow. In Ramasami v. Rasi : (1913)25MLJ276 the following passage from Kerr on Injunctions was cited to show the extent of the right as understood in English law:

The owner of land lying on a lower level is subject to the burden of receiving water which drains naturally or in the course of ordinary agricultural operations such as by deep ploughing, from land on a higher level.

12. Sadasiva Aiyar, J., in Dorasami Mutrian v. Nambiappa Mutryan (1918) M.W.N. 167 was inclined to extend this right even to water brought on to the land for irrigation purposes. He observed:

I think also that even if the water that is brought according to the custom and usages of the country along irrigation channels upon the land, the right to pass it on to a land of a lower level may be spoken of as a 'natural right' without much violence to language.

13. Of course in this view Phillips, J., did not concur because he was of opinion that the words 'natural right' could not be extended to water brought on to the land for irrigation purposes. The learned Judge's view is in accordance with the principle laid down in the English cases noticed in Sheik Hussain Sahib v. Subbayya (1925) 50 M.L.J. 377 : I.L.R. 49 Mad. 441 (F.B.). As stated by Lord Waston in John Young and Co v. The Bankier Distillery (1893) A.C. 691:

The lower heritor is under no legal obligation to receive foreign water brought to the surface of his neighbour's property by artificial means.

14. Whether this doctrine should be strictly applied to an agricultural country like India is a matter for consideration. In fact the observations of Sadasiva Aiyar, J., must be deemed to have been made with reference to the conditions of this country. In Kasia Pillai v. Kumarasami Pillaii (1928) 56 M.L.J. 311 : I.L.R. 52 Mad. 426 Madhavan Nair, J., after referring to the dictum of Sadasiva Aiyar, J., observed that except this dictum there is no authority to support the view that the natural right can be applied to water coming on the upper land for agricultural operations. But he nevertheless laid down:

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.

15. Thus Madhavan Nair, J., though he was not inclined to support the right as a natural right, would do so on the basis of custom having regard to the conditions of this country. No doubt in that case custom was pleaded. But the learned Judge enunciated the principle as a matter of general application. In' my opinion if for a sufficiently long time water brought on to the upper land by artifical means for agricultural purposes is allowed to pass without interruption by the proprietor of the lower land into it one can easily infer a custom and that the customary conditions of the locality require such user. The doctrine of lost grant can be invoked in aid of the inference of such a custom. An illustration of a case where a customary right was inferred by the application of the doctrine of; lost grant is Derry v. Sanders (1919) 1 K.B. 223 where a right of way Was1 asserted by one copy-holder against the land owned by another copy-holder both holding under the same lord of the manor. In that case Bankes, LJ. observed as follows:

In view of the rule that a legal origin must be presumed, if such ail origin is possible, I think that the length of user in the present case of the disputed way is sufficient to found the presumption that the necessary custom existed in the manor of Longdon.

16. The principle upon which the doctrine of lost grant is based is explained by Channel, J., in East Stone House Urban Council v. Willoughby Brothers Ltd. (1902) 2 K.B. 318 thus:

I should be glad to be able to decide the case by the doctrine commonly referred to as that of a lost grant - that is, the rule which says that on long-continued user or possession being proved anything requisite to give that user and possession a legal origin ought to be presumed by the Court. This doctrine has long been known to our law, but in recent times it has been applied more widely and to a greater variety of cases than formerly. It is, in my opinion, a most useful doctrine, and enables the Court to avoid interfering with user and possession in cases not covered by the statutes of prescription and limitation, though within the mischief these statutes were intended to remedy.

17. To invoke the doctrine of lost grant no length of time is necessary. In Chintaman Rao v. Ramchandra Govind I.L.R.(1931) 56 Bom. 82 it was presumed from user extending over a period between 1886 and 1910. In Kunjammal v. Rathinam Pillai (1921) 42 M.L.J. 417 : I.L.R. 45 Mad. 633 and Muthu Goundan v. Anantha Goundan (1915) 31 I.C. 528 20 years user was held sufficient. In Rambhai Dhabai v. Vallabhai Jhaverbhai I.L.R. (1920) 45 Bom. 1027 Shah, J., observed:

It has been suggested in the course of the argument before us that immemorial user or ancient right cannot be inferred from user extending over a period of 35 years, but no case has been cited to us in which the minimum limit of time, which would justify the inference as to immemorial user, has been laid down. It would appear from the observations in the case of Rajrup Koer v. Abul Hossein that their Lordships did not lay any particular emphasis upon the number of years so long as it was in excess of twenty years.

Crump, J.

18. In the same case observed at P. 1037:

With reference to the ancient user which the District Judge has held established he came to the conclusion that from the evidence in the case, which shows an user of at least 35 years as also from the situation of the property considered in the light of the plaintiff's admitted right to use water from the well, the inference was that when the well was built, the persons using the well, of whom the plaintiff's ancestor was admittedly one, agreed between themselves that the plaintiff should take the water by the shortest route to his land. That appears to me to be a finding of fact and I do not see that in arriving at that finding the learned District Judge has fallen into an error of law.

19. In this case having regard to the plaintiff's admitted right by reason of the situation of the property, to discharge water falling on his land on to the land of the first defendant it may well be said that when the plaintiff by reason of the agreement with the Poolangudi Mirasidars brought on the water from the Poolangudi channel for agricultural purposes and let down the water the first defendant's predecessor-in-title agreed that such water can be discharged in accordance with the mamool which existed in regard to the rain water. The learned Subordinate Judge found as a fact user for nearly 30 years. As Crump, J., said in the Bombay case, the Subordinate Judge here in arriving at this finding has not fallen into any error of law.

20. In this connection I have to notice two main arguments of Mr. T.M. Krishnaswami Aiyar. One is that there is no pleading of any customary right or a right based on a lost grant. I do not agree with him in this view. He has also contended that what was alleged in the plaint is only immemorial user which can only mean user to let down rain water and not water which in 1891 by arrangement with the neighbouring land-owners was brought on to the land by artificial means. No doubt in so many words lost grant or customary user are not mentioned in the plaint. The distinction between water brought on to the land by artificial means and water naturally falling to the land was also not made. But the necessary allegations to found such a right are there. To infer a doctrine of lost grant or a claim based on prescription all that is necessary to be alleged is long continual and peaceful possession. Where these incidents are found the Court will if possible presume a grant of the right in question.

21. The contention of Mr. T.M. Krishnaswami Aiyar based on the use of the words 'time immemorial' as referring only to discharge of rain water is again not tenable because you cannot give a literal interpretation to the words 'time immemorial'. They are words borrowed from English law and as explained in Chintamani Rao v. Ramachandra Govind I.L.R.(1931) 56 Bom. 82 at 88 by Tyabji, J. It has a connotation that obviously cannot be applicable to Indian society and circumstances'. It must be taken to mean long user from which title may be presumed.

22. The other argument of Mr. T.M. Krishnaswami Aiyar based on the fact that the land is ryotwari land requires some notice. His argument is that all the lands are held under the Government, a common landlord, and no title by prescription or lost grant can be acquired by one tenant against another as prescription or lost grant presupposes grant by an owner in fee and an acquisition by an owner in fee. He relied very strongly for this proposition on Wheaton v. Maple & Co. (1893) 3 Ch. D. 48 Kilgour v. Gaddes (1904) 1 K.B. 457 and also Chinnasami Goundan v. Balasundara Mudaliar (1934) 67 M.L.J. 262 : 40 L.W. 514. He relied upon the following passage of Lord Lindley, L.J. in Wheaton v. Maple & Co. (1893) 3 Ch. D. 48.

The whole theory of prescription at common law is against presuming any grant or covenant not to interrupt, by or with any one except an owner in fee

and that of Lopes, L.J., in the same case at p. 68.

It must be such an easement as absolutely binds the fee in the land.

Wheaton v. Maple & Co. (1893) 3 Ch. Div. 48 is a case upon the English Prescription Act under which in the words of A.L. Smith, L.J., at p. 72

a person cannot obtain an absolute and indefeasible right within the meaning of the statute unless by the user he can get a right against all. If he does not, he gets no absolute and indefeasible rights within the section.

Under English law the three legal methods by which prescriptive rights can be claimed are (1) prescription at common law; (2) claims based on lost grant; and (3) prescription under the Prescription Act, 1832. As regards prescription at common law the time prescribed by law is 'time whereof there is no memory of man to the contrary'. Later it was cut down by statutes but as it was found in practice that a claim by prescription at common law could often be defeated by showing that the grant originated since 1189, what is called the doctrine of lost modern grant was resorted to. The Prescription Act was also passed to lessen the period of prescription. As stated in Halsbury Vol. 11 p. 300 'The doctrine of lost modern grant is in general only used as ancillary.to a claim to prescription at common law, and is resorted to in cases where for some reason prescription at common law or under the provisions of the Prescription Act, 1832, cannot be adopted'. Prescription under the statute was only one of the modes by which a person could lay claim to his title and it did not preclude a person from claiming acquisition of an easement by any other mode. In English law there seems to be' difference in view whether the acquisition of an easement by prescription or lost grant should only be by an owner in free i.e., if the presumed grant must be an absolute one. That seems to have been the view taken in Wheaton v. Maple and Co. (1893) 3 Ch. Div. 48 and Kilgour v. Gaddes (1904) 1 K.B. 457. But there is also authority for the view that it need not be absolute. In fact in Bright v. Walker (1834) 1 Cr. M. and R. 211 : 149 E.R. 1057 Parke B., observes:

Before the Prescription Act, this possession would indeed have been evidence to support a plea or claim by a non-existing grant from the termor, in the locus in quo, to the termor under whom the plaintiff claims, though such a claim was by no means a matter of ordinary occurrence.

though under the statute it must be absolute and valid against all. The same view was taken in East Stone House Urban Council v. Willoughby Bros., Ltd. (1902) 2 K.B. 318 by Channel, J:

It can be applied between termors when there is a difficulty in applying the statutes owing to the free-holder not being bound.

23. But even in English law where the nature of the interest is such that it can be practically assimilated to that of an owner in fee though not strictly an interest in fee such a presumption can be made. In Derry v. Sanders (1919) 1 K.B. 223 where the question arose with reference to a copyholder acquiring a right of easement against another copyholder holding under the same lord of the manor, Bankes, L.J., after referring to the rule that a tenant for years or for life could not make a grant of a right of way over land in his occupation by virtue of his interest as such tenant was inclined to the view that the same may not be applicable to a case of a copyholder. He observes:

One question, however, in the present case is whether a tenant by the copyhold is in the same position.

24. In Eardley v. Granville (1876) 3 Ch. D. 826 Jessel M.R. states the position of the copy-holder thus:

The estate of a copyholder in an ordinary copyhold (for it is an estate) in the soil throughout.... The possession is in the copy-holder; the property is in the lord.

25. I think there is good ground for saying that a tenant by the copyhold where by the custom of the manor his estate is an estate of inheritance has a sufficient estate to support a grant by him of a right of way over his copyholds. The known methods of acquiring an easement by prescription under the Indian law are (1) prescription under the Easements Act where it is applicable (2) prescription under Sections 26 and 27 of the Limitation Act (3) claim founded on lost grant. Prescription at common law as understood in England cannot be availed of in this country. Before the Limitation Act of 1871, the Courts were requiring 20 or 30 years, user following the English precedents. As the Privy Council referring to prescription under the statute observed in Rajrup Koer v. Abul Hossein .

the statute is remedial, and is neither prohibitory nor exhaustive. A man may acquire title under it who has no other right at all, but it does not exclude or interfere with other titles and modes of acquiring easements

26. There is thus nothing to prevent a claim to title by lost grant being made under the Indian law apart from Section 15 of the Easements Act and no claim is founded on Section 15 of the Act in this case and Mr. Raja Aiyar conceded that he is not setting up any claim under the Section. The question therefore is whether the strict principle of English law that only where an absolute grant is possible you should invoke the doctrine of lost grant should be applied to India. I may say at once that in Koyyammu v. Kuttiammoo (1918) 37 M.L.J. 28 : I.L.R. 42 Mad. 567 divergent views have been taken. Abdur Rahim, J., holding that the English law should be applied and Phillips, J., holding that having regard to Section 8 and other sections of the Easements Act the strict theory of English law is not applicable. Whichever view is correct, in my opinion, the principle applied by Bankes, L.J., to the case of a copyhold can legitimately be applied to the case of a ryotwari proprietor. Though copyhold is not a freehold Bankes, L.J., stated he has sufficient estate to make grant of easement for making the theory of lost grant applicable. It may equally be said that the estate of a ryotwari proprietor is an estate in the soil and possession is with him though the property may be said to be in the Government. The estate of a ryotwari proprietor is also heritable and alienable. He has a sufficient estate to support a grant of an easement. He would be a 'capable granter' as understood in English law, for the application of the doctrine of lost grant. Therefore in this view it is unnecessary to consider the correctness or otherwise of the interpretation placed by Varadachari, J., on Section 15 of the Easements Act in Chinnasami Goundan v. Balasundara Mudaliar (1934) 67 M.L.J. 262 in this case. I am therefore of opinion that on the findings in this case the view of the learned Subordinate Judge that the enjoyment having been for more than 30 years it should be deemed to be of right and the plaintiff's claim should be upheld vide also Kunjammal v. Rathinam Pillai (1921) 42 M.L.J. 417 : I.L.R. 45 Mad. 633 .

27. In the result the Second Appeal fails and is dismissed with costs. Leave refused.


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