Venkataramana Rao, J.
1. This second appeal arises out of a suit instituted by the plaintiff for a permanent injunction restraining the defendants from flooding his land. The plaintiff's case is that the defendants own a tank Survey No. 823 and the plaintiff owns lands south of it, that its storage capacity was only 30 kulies and its ayacut 18 kulies and that they extended the northern and eastern bunds of the tank and put up a new bund, increased the height of bunds and shifted the surplus weir and in consequence whereof his land was flooded and he suffered damage. The defendants disputed the title of the plaintiff to the land claimed by him and denied having made any alterations as alleged but they also asserted that the ayacut of the tank was not 18 kulies but 53 kulies.
2. The learned District Munsif of Dindigul found for the plaintiff in regard to the title of the land claimed but held that no alterations were made and dismissed the suit. He refused to rely on the report of the Commissioner who was appointed to inspect the locality immediately after filing the suit. The learned Subordinate Judge allowed the appeal of the plaintiff and gave a decree as claimed by him. He accepted the Commissioner's report and found that the defendant did make the alterations complained offend specified in the report of the Commissioner. He also found that there were no grounds to hold that the plaintiff's land was inundated by the action of the defendants though there were not sufficient materials to assess the damage and came to the conclusion whether or not there was an invasion of the plaintiff's right regarding the enjoyment of the land, there was sufficient evidence on record to show that the defendants were threatening to invade his right. The defendants have preferred the second appeal.
3. Mr. Rajah Ayyar on behalf of the appellants argued two points before me. The first is that the findings of the learned Subordinate Judge do not warrant the issue of an injunction and he has not correctly applied the principles bearing on the matter. Mr. Rajah Ayyar contended that before a threatened invasion of the right can be made the basis for the issue of an injunction, there must be a finding that if th, defendants' acts were carried into effect violation of the plaintiff's right will be the inevitable result. In Fletcher v. Beasley (1885) 28 Ch. D 688 : 54 L J Ch. 424 : 52 L T 541 : 33 W R 745 Pearson, J. cites a passage from the judgment of Lord Brougham, L.C. in Ripon (Earl of) v. Hobart (1834) 3 Myl. & K 169 : 3 L J (N S) Ch. 145 : 41 R R 40, which in my opinion accurately sums up the principle to be applied:
In matters of this description, the law cannot make over-nice distinctions, and refuse the relief merely because there is a bare possibility that the evil may be avoided. Proceeding upon practical views of human affairs, the law will guard against risks which are so imminent that no prudent person would incur them, although they do not amount to absolute certainty of damage. Nay, it will go further, according to the same practical and rational view, and, balancing the magnitude of the evil against the chances of its occurrence, it will even provide against a somewhat less imminent probability in cases where the mischief, should it be done, would be vast and overwhelming.
4. The facts as disclosed in paras. 13, 14 and 15 of the Commissioner's report which have been accepted by the learned Judge clearly bring the case within the above observations and the learned Judge's finding on these facts is justified.
5. The next point urged by Mr. Rajah Ayyar is this. The ayacut of the defendants' tank is 53 kulies and they are within their proper rights in effecting improvements of the tank for storing water to irrigate 53 kulies and if in consequence of the exercise of their natural right the plaintiff's land is flooded, no cause of action arises against them. There is a good deal of force in this contention. 'Storing of water for agricultural purposes is a natural and lawful user and is not actionable for damage done unless there was negligence proved'. Per Kumaraswami Sastri, J. in Zamindar of Nandigam v. Rajah of Visianagaram 33 L W 771 : 135 Ind. Cas. 349 : AIR 1931 Mad. 561 : (1931) M W N 23 : 60 M L J 662 : Ind. Rul. (1932) Mad. 93 following Madras Railway Co. v. Zamindar of Carvetnagaram 1 I A 364 : 14 B L R 209 : 22 W R 279 : 3 Sar. 391 : 3 Suther. 36 and I respectfully agree with the following observations of Wallace, J. in Deshadri Aiyangar v. Thanbu Narasimhachari 36 L W 408 : 140 Ind. Cas. 28 : AIR 1932 Mad. 534 : Ind. Rul. (1932) Mad. 813.
The whole system of tank irrigation and the rights of wet raiyats to water for irrigation in this country has no counter-part in England and no place in the English common law; the law in such matters here is determined by custom and customary right* * * Submersion of lands on the foreshore of a tank when it is at its full tank level is no uncommon occurrence and is a feature of the recognired irrigation saystem.* * * when such submergence is a matter of the customary conditions of the locality when the suit tank is at its full tank level and is not the result of a direct and proved interference with these customary conditions, no cause of action would arise. The raiyat has suffered no damage because he is holding his land under the customary conditions under which it has always been held and which are patent to any one who is acquainted with the land and its locality.
6. Illustrations of this principle would be found in cases like Narayana Reddi v. Venkatachariar 24 M 202 but in this case there is no rinding that the ayacut of the tank is 53 kulies and no investigation of the customary conditions of the locality such as pointed out by Wallace, J. in the judgment above cited. Though the defendants in their written statements stated that the ayacut of the tank is 53 kulies, they did not, raise the plea that they were exercising the natural or customary right of storing water for the purpose of cultivating the alleged ayacut of 53 kulies. On the other hand their plea was that they did not make any alterations. Further what the defendants have done is thus stated by the learned Subordinate Judge.
The 2nd defendant's own evidence shows that they have purchased the garden land Survey No. 826 and has converted the same as forming part of the tank itself. Evidently, these acts coupled with their conduct in raising the bund of the tank clearly go to show that their idea is to increase the storage capacity, of the tank so that they might cultivate more nanja lands with the tank water' (i.e. not the customary or prescribed ayacut).
7. This is made clear in the evidence of the 2nd defendant himself. 'To the west of Sikkammal's land is the land purchased by the defendants. That land comprises 11 and odd kulies. To the north of the land is the tank. That is shown as Survey No. 826 in plaintiff's plan. We purchased the land 4 or 5 years ago. There is a well in it. It was a garden land. To my knowledge it was cultivated with garden crops for 5 or 6 years. Prior to that, I did not know what cultivation was going on in that land. We purchased the land for the tank with the object of growing karuvela trees therein. We have not cultivated it after our purchase. It now forms part of the tank'. The defendants are not justified in making this newly purchased 11 kulies of land part of the tank and thus extending it. So in this state of facts the question, what the prescribed or customary ayacut of the tank is and what the defendants' rights are in regard to the improvements of the tank in order to ena,ble them to cultivate the said ayacut do not arise and I do not propose to express any opinion on the rights of the parties in regard thereto, if the defendants in obedience to the injunction issued herein should restore the tank to its original condition and then think of making the necessary alterations if so advised for enabling them to cultivate the prescribed or customary ayacut, their rights whatever they are will remain unaffected by the judgment. In ahe present state of affairs which the defendants themselves have brought about, the injunction as claimed by the plaintiff must issue.
8. In the result, the second appeal fails and is dismissed with costs.