1. In this case the appellant, who is a zemindar, has, according to the finding of the lower Courts, raised the height of the bund of a tank in certain directions and narrowed the sluice with the result that the plaintiff's land which lies close to the water-spread of the tank has become liable to submersion more often than before. The Subordinate Judge has granted a decree giving the plaintiff an injunction directing the defendant to restore the bund of the tank to its former and usual height and the sluice in question to its former width. The appellant is also given an option, within four months from the date of the decree, to adopt any other means which might be at his command to prevent the plaintiff's land being submerged more often than it used to be before the acts of the defendant in question.
2. Mr. Srinivasa Iyengar, who appeared for the appellant, has strenuously argued, in the first place, that the finding of the Subordinate Judge, which confirms that of the District Munsif, is not sufficient to support a case of injunction. He argues that the finding of the lower Court amounts only to this, that, in an extraordinary year of rain, the land'of the plaintiff would be liable to submersion owing to the action of his client. But that is not how we read the finding. What is found is that within six years since the act complained of has been done, for two successive years, the land of the plaintiff has been flooded, although there has been no abnormal rains during those years and the conclusion which the lower Appellate Court has come to is, that the defendant's act made the plaintiff's land liable to damage more often and to a greater extent in a year of heavy rain than it was before.
3. In our opinion, this finding is sufficient to support a case for injunction. It is not a case of injury to the plaintiff which is liable to occur at rare intervals. What the defendant has done is a standing source of danger to the plaintiff's land and the plaintiff is entitled to protection from such action.
4. The next argument of Mr. Srinivasa Iyengar is that the zemindar has done what he has done in discharge of what is analogous to a statutory duty and can only be made liable if he has been negligent m the discharge of the duty, and he cites, in support of the proposition, the case of the Madras Railway Co. v. The Zemindar of Karvetinagaram 14 B.L.R. 209. All that the Lords of the Privy Council observe in that case at page 385 is, that the duty of the zemindar in that case with reference to the tank in dispute, which was an ancient tank, was in the nature of a statutory duty to maintain and preserve the tank and that he could not be held liable in such a case for damage done by breach of the embankment caused by the extraordinary floods without negligence on his part. Even holding that observation to be otherwise applicable to this case, the complaint against the appellant here is not with reference to any failure on his part to preserve and maintain the tank in its original condition, but by certain positive acts of his, via., raising the height of the bund and narrowing the sluice, which could not be said to be mere acts of preservation or maintenance, he has created a new source of danger to the plaintiff's land. It is also argued by the learned Vpkil for the appellant that what his client has done is merely a natural act of enjoyment of his property, and he relies, in this connection, on the case of Whalley v. Lancashire and Yorkshire Railway Co. 13 Q.B.D. 131 where the act complained of was the defendant's erecting trenches for the protection of his own land, which caused a larger amount of water to flow on to the plaintiff's land than it would otherwise. But this is an altogether different case. It is not shown that what the appellant has done was necessary for the protection of his land. It is next contended for the appellant that the decree in this case ought to be in general terms, directing the defendant to make such alterations in the tank as to prevent the plaintiff's land being flooded more often than it used to be before the act of the defendant in question. But such a decree, in our opinion, would be difficult to work out in this case. This case is not similar to Sankaravadivelu Pillai v. Secretary of State for India 15 M.L.J. 32.
5. The Subordinate Judge has, as a matter of fact, given the defendant an -opportunity to adopt such means as would prevent the plaintiff's land being flooded to a greater extent than it was liable to in the ordinary course, and it is failing that that he directs that the tank bund should be restored to its original height and the sluice also restored to its original width. A decree in general terms, as suggested by Mr. Srinivasa Iyengar, would not meet the re3.1irem.ents of this case, as it is found that the plaintiff's land is liable, in the ordinary course, to occasional submersion and it would be very difficult, therefore, to carry out a decree worded in such general terms as suggested.
6. The learned Vakil for the appellant is afraid that the decree of the Subordinate Judge might be construed to mean that, if his client reduces the present height of the bund and widens the sluice to an extent which would prevent the evil complained of by the plaintiff, it will not be open to him to do so, having regard to the terms of the decree. We do not think that the decree prevents his doing this. It is quite open to him to satisfy the Subordinate Judge that, by reducing the height of the tank bund and widening the sluice to a particular extent, he has effectually guarded against the danger to the plaintiff's land. We do not think, therefore, that there is any force in the appellant's contention. The appeal must be dismissed. The time allowed by the decree for adopting such means as will effectually prevent the plaintiff's land from being submerged more often or to a greater extent than before by the acts complained of will he extended to four months from this date. With this modification, we dismiss the appeal with costs.