1. In this case the plaintiffs and defendants are landholders of two jaghirs, co-terminus throughout their entire length of 20 bighas, and separated from each other by an 'al,' running east and west. The plaintiffs say, that the rain water from their lands used, from time immemorial, to pass over the defendants' land by flowing over the 'al' through certain passages (khurhi or nalla), but that the defendants have raised the height of the 'al' by 2 or 2 1/2 cubits, so as to form a new bandh for a distance of 11 bighas, have closed all the khurhis, and have laid two new pipes, a cubit high, through the 'al'; that, owing to these acts, rain-water accumulated on the plaintiffs' lands and occasioned damage to the crops of the plaintiffs in one suit amounting to Rs. 150, and of the plaintiff's in the other suit amounting to Rs. 180. The plaintiff's accordingly claim (i) a declaration of their prescriptive right; (ii) an order reducing the 'al' to its proper height; (iii) the opening the passages and removal of the two pipes. The original Court found that the lands of the plaintiffs are half a cubit higher than those of the defendants, and that the natural flow of water is from the one to the other, and that, for more than twenty years, water has passed in rainy seasons from one to the other; that the 'al' is the boundary between the two estates, and that the defendants have heightened it; that the water previously passed from the plaintiff's lands to those of the defendants' by three or four passages, which at present' do not exist; that the pipes do not afford an outlet; and he accordingly has given the plaintiffs a decree....
2. The lower Court has, with some modifications not now under consideration, upheld the finding of the original Court.
3. In special appeal it is urged that the right alleged by the plaintiffs to have the surface water of their lands escape over the 'al' to the lands of the defendants, is one which could not be legally acquired.
4. We do not consider that there is any ground for this contention. There is a well-recognised servitude of lower lands to receive the natural drainage of adjoining lands on a higher level Smith v. Kenrich 7 C.B. 515; and as, in the present case, it is established that, for a long series of years, the waters from the plaintiffs' lands have been accustomed to escape in a particular direction and by certain separate passages across the defendants' lands, the defendants cannot now do anything which would interfere with the plaintiffs' right in this respect.
5. We think it unnecessary to discuss the question, which has been raised in the appeal, of the rights of an owner to protect himself from unusual floods, and of the liability which he may incur if, in so doing, he injures the land of another The King v. Trafford; l B. & Ad. 874; s.c. on appeal 8 Bing. 204; Nield v. London and North-Western Ry. Co. L.R. 10 Exch. 4; because there is o evidence that the escape of water was, with reference to the ordinary conditions of an Indian climate, in any sense exceptional.
6. The present case falls, in our opinion, clearly within the remarks of Bramwell, B., in the latter case as to the liability of a person who for his own purposes diminishes a natural escape of water to any one who is injured by his act. The appeal is dismissed with costs.