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Babu Pallave Mandal and anr. and Vs. Akhoy Ghosh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.24
AppellantBabu Pallave Mandal and anr. and ; BepIn Behari Mandal
RespondentAkhoy Ghosh and ors.
Cases Referred and Bimal Chandra Chakravarti v. Chandra Kanta Chakravarti
Excerpt:
easement - discharge of water from higher land to lower land--owner of lower land, whether can insist that water should continue to be so discharged. - 1. this appeal is preferred by defendants nos. 1 and 2 (the principal defendants) and arises out of a suit brought by the plaintiff to restrain them from diverting the flow of gar and melon water across their lands on to the plaintiff's land. we are told that gar is water that has accumulated or been confined in some depression, and that melan is water flowing at random over land. it appears that for many years water accumulating on higher land has, at least in the rainy season, found its way down across lands of the pro forma defendants and the principal defendants on to the land of the plaintiff which lies below. the land of the principal defendants does not immediately adjoin that of the plaintiff but is separated therefrom by land of one or two other persons. the principal defendants.....
Judgment:

1. This appeal is preferred by defendants Nos. 1 and 2 (the principal defendants) and arises out of a suit brought by the plaintiff to restrain them from diverting the flow of gar and melon water across their lands on to the plaintiff's land. We are told that gar is water that has accumulated or been confined in some depression, and that melan is water flowing at random over land. It appears that for many years water accumulating on higher land has, at least in the rainy season, found its way down across lands of the pro forma defendants and the principal defendants on to the land of the plaintiff which lies below. The land of the principal defendants does not immediately adjoin that of the plaintiff but is separated therefrom by land of one or two other persons. The principal defendants have, it is found, recently stopped the flow of water on to land below their own and diverted it towards the east by cutting the ails between their land and that to the east which also belongs to them. The plaintiff complains that the productive power of his land has been thereby lessened, and in particular an arrah (or fish-trap) on his land has been rendered useless. The question is whether the plaintiff has proved any right which he can enforce at law. The Court of first instance dismissed his suit. The Sub-Judge on appeal has reversed that decision and granted the plaintiff a decree. We think that the judgment of the lower Appellate Court cannot be supported. This is really a case of the owner of a servient tenement endeavouring to retaliate by claiming an easement against the owner of the dominant tenement. The defendants (principal and pro forma) may have acquired a right by prescription to discharge surplus water from their land on to that of the plaintiff, but this would not give him the right to insist that they should continue to do so for all time. The cases of Altafuddin Chowdhry v. Aso Khadem 20 Ind. Cas. 315 : 17 C.W.N. 1066 : 18 C.L.J. 131 and Bimal Chandra Chakravarti v. Chandra Kanta Chakravarti 22 Ind. Cas. 514 19 C.L.J. 45 cited by the Munsif appear to be directly in point. The Sub-Judge has not referred to them, still less attempted to distinguish them.

2. Accepting the law as there laid down we allow this appeal, set aside the decree of the lower Appellate Court and direct that the plaintiff's suit be dismissed with costs in all the Courts.


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