1. This is an appeal from a judgment of Jackson, J., who, in second appeal, reversed the decrees of the two lower Courts and dismissed the suit under appeal with costs.
2. The facts of the case are as follows:
The plaintiff in the suit, the appellant here and defendant 1 are brothers. In 1904 there was a partition among the plaintiff, defendant 1 and their father, each of them then getting one-third share. In the partition amongst other lands, Survey No. 276 fell to the plaintiff's share and Survey No. 282 to that of defendant 1. After this partition, until December 1918, the plaintiff and defendant 1 enjoyed the properties in common and during this period sold some of the lands and also jointly acquired other lands. In December 1918, by Ex. J there was a partition between these two and in that partition Survey No. 276 was taken by the plaintiff and Survey No. 282 by the first defendant. The plaintiff's case was that his land Survey No. 276 was being drained by means of a channel passing underneath a channel belonging to Government by means of a syphon sluice through which the water passed on to Survey No. 282 and through a channel conduit to the farther side above, it emptied itself into another channel. He claimed that his field was being drained in this way previous to 1904; and he claimed a quasi-easement under Section 13(f) Easements Act. It is clear from the evidence that there had been for a very long time an old syphon sluice which the plaintiff's father at his-own cost re-built in about 1911. In 1919 defendant 1 obstructed the sluice and destroyed the channel with the re-suit that the plaintiff petitioned to the revenue authorities in January 1921, requesting them to get the obstruction removed and the channel restored; but the Revenue Divisional Officer refused to interfere informing the plaintiff that he might, if so advised, institute a civil suit and establish his right in regard to the drainage of his land. Hence the suit under appeal.
3. The District Munsif found that the syphon sluice came into existence in 1905 and was in existence from 1905 till 1918 and that the plaintiff's was entitled to the right claimed. The Subordinate Judge did not agree with this finding being of the opinion that the syphon sluice and the channel came into existence before 1905 and had been in existence for at least 25 years before the date of the suit which was filed in July 1923, and there is plenty of evidence to support that finding.
4. The point raised by the defendant here and in the lower Courts was that the plaintiff should have sued the Government because the only right the plaintiff bad was to drain his water off on to Government land and that the plaintiff had no right as against the defendant and was not in any way concerned with how the water might be drained off the Government land on to that of the defendant's. This point is baaed upon an argument that it is only when the lands of the plaintiff and the defendant are contiguous that the plaintiff is entitled to sue the defendant for obstructing the flow of water from his land on to the defendant's. Jackson, J. upheld this contention and after consulting English authorities came to the conclusion that where A carries water by a drain on to B's land, which then goes on to C's land, there is no case discoverable in which it has been held that A can sue C. Whilst it is correct to say that there is no direct English decision upon this point, the observations of the Judges in Birmingham, Dudley and District Banking Co. v. Ross (1888) 38 Ch.D. 295, are, very helpful. That was a suit claiming an injunction to prevent the defendant building to such a height as to obstruct the access of light and air to the premises. It was argued in the trial Court for the defendant that there was no case in which the doctrine of implied grant has been applied where there has been some other land intervening and that it only applies where the lands are immediately adjoining. Kekewich, J., the trial Judge, was of the opinion that this argument was not well founded and in the Court of appeal all three Lords Justices, Cotton, Lindley and Bowen, were not prepared to assent to that argument at all, Lord Justice Bowen describing the argument of the defendant's learned Counsel as courageous. It is true that this question did not arise for decision but it is quite clear that the defendant's contention did not find favour with any of those eminent Judges in the Court of appeal. There does not appear to me to be any good reason why contiguity of land should be an essential point in such a case and obviously in many obstruction to light and air ceases there may not be such contiguity. The decision of the Calcutta High Court in Khudiram Nandi v. Surendranath Samenta (1913) 21 I.C. 857, seems to me to take this view also. In that case the plaintiff carried the water from his land across a public road to the boundary of the defendants land and there discharged it on the defendants' land. The Court took the view that the plaintiff had no right to take his water across a public road which would be a public nuisance and that he was bound to show that he had acquired a right to carry water by lawful means to the boundary of the land of the defendants. With that decision I entirely agree and I think that it is one which supports the plaintiff-appellant's case. If he is lawfully entitled to carry his water to the defendant's boundary and has acquired a quasi-easement, then he is entitled to complain of the defendant's interference with it. The case of a plaintiff who has merely acquired the right to discharge his water on to the intervening land and the case of a plaintiff who has acquired the right of carrying it across that intervening land and discharging it upon the land farther away are quite different. In the former case, in my opinion he is not entitled to sue the person who is on the other side of the intervening land, whereas in the latter case I cannot see any good reason for his not being entitled to do so. In this case, in my opinion, the plaintiff was clearly entitled to carry his water by means of the syphon sluice under the Government channel up to the boundary of the defendant's land and there discharge it into a channel over that land; and for these reasons in my view the second appellate Court was in error; and this appeal must therefore be allowed with costs both here and in the second appellate Court and the decree of the first appellate Court restored and the suit decreed in favour of the plaintiff.
5. I agree.