Mitter and Macpherson, JJ.
1. The plaintiffs respondents are the owners of a mouzah called Kener. To the east of that mouzah lies chuck Jugmual, and to the east thereof is Lalpura, the defendants' mouzah. The Courts below have found that the land slopes from west to east, and the surplus rain-water of the plaintiffs' lands is drained through chuck Jugmual, and defendants' mouzah Lalpura which are lower in level than the plaintiffs' lands. It has been further found that this surplus rain-water is carried through a nigar or a natural outlet which falls into a natural water-course called Samdahain, This river Samdabain passes through the defendants' mouzah Lalpura, and flows towards the east. There is another river called the Chandimohan, which also is wholly situated in the defendants' mouzah. The confluence of these two rivers is to the east of that point in the river Samdahain where the outlet mentioned from the plaintiffs' lands joins it. The lower Courts have further found that the proprietors of Lalpura have recently constructed a dam across the river which is formed by the confluence of the Samdahain and Chandimohan, the effect of which has been to obstruct the drainage of the surplus rain-water falling upon the plaintiffs' lands.
2. Upon these facts being found the lower Appellate Court has awarded a decree for the removal of the dam awarding damages claimed by the plaintiffs in the plaint against the defendants appellants.
3. The defendants have preferred this appeal, and it has been contended on their behalf that the District Judge who decided this case in appeal is in error in holding that, upon the facts found by him (in the absence of any evidence of prescriptive right) the plaintiffs are entitled to drain off the surplus rainwater of the land through the defendants' lands.
4. It has been contended by the learned Counsel who appeared on behalf of the appellants that the right of the owner of a higher land to drain off its surplus rain-water through the adjacent lower ground is not an incidence of the ownership of land in this country, but can be only acquired by long user.
5. We are of opinion that this contention is not well founded. That such a right is incident to the ownership of land in this country is well established by decisions of this Court as well as of other High Courts see Muthoora Mohan Mytee v. Mohendro Nath Paul S.D.A. 1860, Pt. 2, p. 301; Hameedunissa v. Ananda Moyee Dassee W.R.F.B. 25; Khetternauth Ghose v. Prosunno Ghose Gowalah 7 W.R. 498; Kopil Pooree v. Manik Sahoo 20 W.R. 287; Subramania Ayyar v. Rama Chandra Rau I.L.R. 1 Mad. 335. The main ground, therefore, taken in this appeal fails.
6. But the objections taken to the decree of the lower Appellate Court as to the removal of the whole bund and the award of the damages claimed by the plaintiffs are, in our opinion, sustained. The first Court refused to make any decree for damages, because the plaintiffs failed to establish 'the correct amount.' The lower Appellate Court simply finding that the plaintiffs have sustained a good deal of damage, thinks that they ought to be allowed the Rs. 600 (six hundred) which they claim. The award of Rs. 600 as damages does not appear to us to be based on a consideration of the evidence on the record. The lower Appellate Court will, on remand, decide the question of the amount of damages with reference to the evidence on the record.
7. As to the other relief granted, viz., the removal of the whole dam, it is equally based upon imaginary grounds. The District Judge thinks that, because it has been shown that the defendants have obstructed the drainage of the surplus rain-water of the plaintiffs' land, it must be taken for granted, unless the contrary be proved, that the construction of the dam even to the height of an inch is an invasion of the plaintiffs' right. This opinion does not appear to be based upon any materials on the record. We think that this point, namely, how far the erection of the band is an invasion of the plaintiffs' right, must be enquired into and determined upon proper materials placed before the Court. The case will, therefore, be remanded to the lower Appellate Court to appoint a competent person as Commissioner, to hold a local investigation upon the point, viz., whether to secure to the plaintiffs the enjoyment of the right which they have established, it is necessary to move the whole of the bund' or a portion of it, and, if the latter, what portion. The costs of this investigation will be borne by the plaintiffs in the first instance, but ultimately it will be part of the costs of the suit.