1. This is an appeal on behalf of the defendants, and arises out of a representative suit commenced under the provisions of Order 1, Rule 8, Civil P.C., on behalf of the inhabitants of a group of four contiguous villages which may be collectively referred to as Bandipur. These villages lie on the eastern side of a khal, flowing north to south, and the object of the suit is to restrain the discharge of surplus rain water from the defendants' mouza, Bamunkhana on the other side of the khal on and to the plaintiffs' lands in these villages which are admittedly at a lower level. It is not known when, by whom and in what circumstances the khal was excavated, but it is not disputed that this served as a channel for draining off the surplus rain water from the defendants' mouza. On their side of the khal, the plaintiffs had constructed a bund or embankment to protect their lands from over-flooding. The khal finally discharged itself into a river called Jhumjhumi towards the south through a sluice-gate which was located in mouza Harisingpur. Latterly, the khal appears to have silted up, and presumably because this caused an obstruction of the defendants' drainage, the defendants, it is alleged, wrongfully caused an opening to be made on or about 29th November 1938, in the plaintiffs' bund at a point 'G' in order to provide an outlet for their surplus water. The plaintiffs closed up the opening, and then instituted the present suit, challenging what they regarded as an unlawful invasion of their rights by the defendants. They asked for a declaration of their title and for a permanent injunction against the defendants. The defence was that the people of Bamunkhana had an indefeasible right to discharge their surplus water over the Bandipur lands through the opening in the plaintiffs' bund, and the defendants sought to support this right on a variety of grounds. They claimed the right, in the first place, by prescription and immemorial user; secondly, as an easement of necessity; and thirdly, as a natural right incident to their ownership of lands situated at a higher level. The learned Munsif of Arambagh who heard the suit in the first instance found against the defendants on the question of prescription and immemorial user, but held in their favour on the other two grounds, and in the result dismissed the suit. On appeal, the learned Subordinate Judge of Hooghly reversed the decision, negativing the case of the defendants on all points. It is against his judgment and decree that the present appeal has been preferred.
2. In this Court, the arguments have centred mainly round the question of natural right claimed by the defendants. As regards their claim on the basis of a right acquired by prescription or immemorial user, no serious attempt has been made to challenge the findings of the lower appellate Court, and it must be held that the defendants have failed to establish this part of their case. Their case as regards an easement of necessity is equally untenable. As the learned Subordinate Judge points out, there had been some previous proceedings, culminating in a suit in 1932, between the inhabitants of Bamunkhana and those of another village south of Bandipur called Banharisingpur, in which the defendants had asserted a right to discharge their surplus rain water over the lands on the other side of the khal, but this they had claimed to do through some openings in the bund at Banharisingpur, and not through the present disputed opening at Bandipur. Further, having regard to the fact that the defendants' water used to be drained away by the khal, I do not think the mere silting up of the khal could give rise to an easement of necessity in favour of the defendants, even if it was shown that they had no other means of outlet for this water at present. It was certainly up to them to have taken steps to keep the khal clear of silt. The learned Munsif seemed to think that the liability in this respect was that of the plaintiffs, but this was based on a pure surmise on his part, unsupported by evidence, that the site of the khal was originally the property of the plaintiffs, and that the plaintiffs must have made this excavation to get their supply of earth for the bund they erected. The question of natural right remains, therefore, the main contention in the appeal, but before dealing with this, it is necessary to dispose of certain preliminary points which were raised on behalf of the appellants.
3. It was contended in the first place that a representative suit of this nature was not maintainable. It is difficult, however, to appreciate the objection. The suit satisfies all the requirements of Order 1, Rule 8, Civil P.C., and one fails to see how any infirmity attaches to it by reason of its representative character. The cause of action is no doubt ultimately dependent on ownership of land, but merely because the lands which are alleged to be threatened by the defendant's action belong to different owners, I do not think it can be said that there is not such a community of interest among the plaintiffs in respect of the cause of action or the relief claimed as will support such a suit. In my opinion, a representative suit is quite in order in the circumstances of the case.
4. It was next urged that as the plaintiffs were suing in a representative character, it was necessary for them to have sued the defendants also in a similar capacity. This argument is equally difficult to follow. It may be that there were other persons having a common interest with the defendants, whether belonging to the defendants' mouza Bamunkhana or to any other mouza lying on the same side of the khal, but if such other persons had not invaded the plaintiffs' rights the plaintiffs were certainly not bound to proceed against them, either by impleading them directly as defendants or by moulding the suit on a representative basis so as to include them in effect within its scope. As it is any decree the plaintiffs might recover in the present suit would be binding only on those who have beep joined as defendants, though so far as the plaintiffs are concerned, the decree would endure not only to their benefit, but also to the benefit of those whom they have sought to represent under the provisions of Order 1, Rule 8. A further objection was raised on the ground that the suit was in essence one for a declaration that the defendants did not have the right they claimed, not a suit for declaration of the plaintiffs' own rights. There is, in my opinion, no substance in this objection, which is really based on a misapprehension of the nature and scope of the suit. The plaintiffs' whole case was that the action of the defendants amounted to an interference with their lawful rights, and that is why they asked for a permanent injunction against the defendants. I do not think, therefore, that the suit could be held to be not maintainable as merely asking for a negative declaration against the defendants.
5. Turning now to the main question in the appeal, it will be seen that the particular kind of natural right which is claimed on behalf of the defendants in this case is the right which the owner of land at a higher level has against the owner of lower level land to discharge on it surface water from his tenement. The existence of such a right is now well established on authorities going back to the Sudder Dewani Adawalat: see, for instance, Muthoora Mohan Mytee v. Mohendro Nath Paul (1860) S.D.A. 301, Hameedunnissa v. Anund Moyee Dossee (1862) 1862 W.R.F.B. 22 (F.B.), Kopil Pooree v. Manik Sahoo ('73) 20 W.R. 287 Imam Ali v. Poresh Mandal ('82) 8 Cal. 468, Abdul Hakim v. Gonesh Dutt ('86) 12 Cal. 323, Ramadbin Singh v. Jadunandan ('15) 2 A.I.R. 1915 Cal. 486, Kasiswar Mukherjee v. Jyoti Kumar Mukherjee ('18) 5 A.I.R. 1918 Cal. 422. It is a right which is supposed to arise by virtue of the relative situation of the two tenements, and is recognised as an inseparable incident of the ownership of land: it is analogous to an easement, and yet strictly not an easement: Sheik Hussain Sahib v. Subbayya ('26) 13 A.I.R 1926 Mad. 449.It is not disputed that the defendants' lands are situated at a higher level, and there can be no doubt, therefore, that if the lands of the plaintiffs were contiguous, the defendants as the upper proprietors would be entitled to demand as of right that water naturally rising in, or falling on their lands and not passing in defined channels, shall be allowed by the plaintiffs as the proprietors of adjacent lower lands to run naturally thereto.
6. The first question which arises in this case is whether and how far the interposition of the khal affected the position. It may be conceded that the owner of a lower heritage cannot escape the burden of receiving the water which falls from a piece of higher ground merely because the water flows across an intervening tenement belonging to another owner. There is here no real break caused in the contiguity of the lands by the fact of different ownership. It seems, however, to be quite a different proposition where the upper and the lower lands are divided by a khal or watercourse which expressly serves as a defined channel for carrying off the surface water from the higher level, The existence of such a channel must imply in law as it means in fact a separation between the lands on either side, and so long as the channel remains, there can obviously be no question of the lower land owner receiving, or being obliged to receive, any water from the upper area. So long as the channel remains, it seems indeed to be immaterial whether any pre-existing natural right is deemed to be extinguished or merely to be held in abeyance.
7. The position is, however, altered if and when the channel silts up and the water can no longer be disposed of that way. The question will then arise, assuming that a natural right existed from before, whether the change in the physical condition of the channel will revive such right, and this in turn will depend on whether during the period the channel continues functioning, the natural right also continues, though suspended for the time being, As has been already indicated, it is now well settled that a right of the kind we are considering, that of an upper land owner to throw his surface water on to land at a lower level, is a natural right, and not in the strict sense of the word an easement. In other words, it is a right which is not acquired, but is an incident of property owing its origin to the disposition and arrangements of nature. It is incapable, therefore, of being lost by non-user or extinguished permanently, and the maxim 'tantum prescriptum quantum possessum' has no application: Secretary of State v. Subbarayudu ; and Mitra's Limitation and Prescription, Edn. 6, Vol. 1, pages 463 to 467.
8. Such a right may, however, be subject to restrictions by way of easements, as is in fact expressly recognized by Sub-section (b) and illus. (i) of Section 7, Easements Act (Act 5 of 1882). Thus it has been held in U Po Thet v. Chettyar Firm ('36) 23 A.I.R. 1936 Rang. 282, that though every land owner has a natural right to deal with his surface-drainage water as he pleases, and can let it find its way by gravitation to his neighbour's land, if that is at a lower level than his own land, nevertheless the owner of the lower land may acquire by prescription, as an easement restricting this natural right, the right to throw water back to the land at a higher level. This decision is not really inconsistent with that of the Madras Full Bench in Sheik Hussain Sahib v. Subbayya ('26) 13 A.I.R 1926 Mad. 449, where, overruling an earlier decision in Mahamahopadhyaya Ranga Chariar v. Municipal Council of Kumbakonam ('05) 29 Mad. 539, the Court held that an owner of land on a lower level to which surface-water from adjacent land on a higher level naturally flows is not entitled to deal with his land in such a way as to obstruct the flow of water from the higher land. The very fact that the lower owner could not legally so interfere with the natural right of the upper owner would indeed go to show that he could prescribe against such right by way of an adverse easement.
9. The effect of the creation of such an adverse easement could of course only be to cause, during the period the easement right is operative, suspension of the natural right, not its complete extinction, and the natural right would accordingly revive on the extinction of the easement. It is further to be observed that such a natural right, though not capable of being extinguished as such, may, nevertheless be abandoned. This was in fact expressly held by Markby J. in Khetturnath Ghose v. Prosunno Ghose ('67) 7 W.R. 498, where he pointed out that the abandonment may either be by express agreement between the owner of the dominant land (i. e., the land which derives benefit from the exercise of the right) and the owner of the servient land (i. e., the land which has to suffer the exercise of the right), or may be implied from a long and continuous interruption on the part of the owner of the servient land submitted to by the owner of the dominant land.
10. The position consequently seems to be that these natural rights and liabilities may be altered by contract or grant, express or implied, as well as by enjoyment of an adverse easement obstructing the flow of the water from the higher to the lower ground. It follows, therefore, that if any artificial alteration is made in the configuration or disposition of the lands or any conditions are otherwise created affecting the exercise by the upper owner of his natural right to discharge his surface water to the lower level, such as by excavating a khal or channel between the two tenements, then this fact alone will not be sufficient to determine whether the natural right is thereby merely suspended for the time being or finally extinguished. The purposes for which, and the circumstances in which, the altered conditions are brought into existence as well as the subsequent mode of user or enjoyment will all have to be looked into.
11. If, for instance, the khal (to take the illustration which is apposite in the present case) appears to be only an arrangement made by the 'servient' owner in his own land for the reception of the waters coming from above, this will not in fact constitute even a temporary interruption of the natural right, but will really be one mode of submitting to the exercise of such right. As the Full Bench points out in the Madras case already referred to, Sheik Hussain Sahib v. Subbayya ('26) 13 A.I.R 1926 Mad. 449, at p. 450, the lower owner is always at liberty to make any alterations he prefers in his land for carrying off the water from his neighbour's land. If, on the other hand, it should appear that the khal has been excavated by the 'dominant' owner with the express idea of relieving the lower land of the burden which rests on it by virtue of its natural position, this may well be regarded as a permanent abandonment of the natural right, and there can accordingly be no question of its revival at a later stage, merely because the khal no longer serves as a proper means of drainage. It may also well be that though there is no express abandonment, still an abandonment may be inferred from the fact of long and continuous interruption of the natural right caused by the khal and submitted to by the dominant owner. The facts, again, show that the khal is only such interruption of the natural right on the part of the owner of the servient land as to constitute no more than an adverse easement, in which case of course the natural right merely remains suspended so long as the easement remains operative by actual enjoyment. Wherein addition to the khal the servient owner takes other measures, such as putting up a bund or embankment, to obstruct the flow of the water from the higher level to his land, the adverse enjoyment may easily be supposed to continue even after the khal is silted up.
12. Now, the question as to the true effect of a change in the original disposition of the lands resulting in a diversion of the natural flow of the surface water from the higher tenement to the lower, whether it amounts to an abandonment of the natural right of the superior owner, or merely operates as a temporary suspension of the natural right by adverse enjoyment on the part of the inferior owner, or whether, on the other hand, it is only an alternative mode adopted or accepted by the inferior owner himself of discharging the burden which naturally rests on his land, constituting thereby a recognition of the continuance of the natural right, is obviously a question of fact which must depend on the particular circumstances of any given case, to be decided no doubt in accordance with the established principles of law. It is impossible to draw any a priori conclusions from the mere fact of the altered conditions.
13. Such, then, being the position, it should not be difficult to dispose of the present appeal on the findings of the learned Subordinate Judge on the facts of the case. These findings, in my opinion, show a correct appreciation of the legal principles applicable. As the learned Judge points out, there is no evidence to show when, how or in what circumstances the khal between the plaintiffs' and the defendants' villages came into existence, but from the local features and other circumstances he holds that it was excavated for the purpose of serving, and did serve, as a defined channel for the drainage of the water from the defendants' village on the higher level. He finds further that with the excavation of this artificial channel there resulted an abandonment of any natural right which the owners of the higher lands might have had to discharge their waters over the plaintiffs' mouzas, and he expressly refers to the decision in Khetturnath Ghose v. Prosunno Ghose ('67) 7 W.R. 498. Such abandonment, according to the learned Judge, was the result of an agreement between the owners on either side, and in support of this conclusion he refers to the fact, among others, that the people in. the eastern (or the plaintiffs') villages erected a. bund on their side of the khal and took other orders with their lands which they would not otherwise have done. In any case, he points out that the khal did operate as an interruption to the exercise of the natural right which the defendants claimed, and the interruption was so long and continuous that an abandonment could be inferred. Finally, the learned Judge holds that on the facts the owners of the lower lands may be supposed to have acquired by prescription a right of easement in derogation of the defendants' natural right, as in the Rangoon case in U Po Thet v. Chettyar Firm ('36) 23 A.I.R. 1936 Rang. 282, which he cites. There had certainly been no abandonment of such easement right on the part of the lower owners.
14. On these findings, there can be really no answer to the plaintiffs' claim even if the existence of a previous natural right be assumed in favour of the defendants. In the circumstances referred to, the silting up of the khal could not possibly revive such right. The learned advocate for the appellants strenuously sought to challenge these findings as mere inferences of the learned Subordinate Judge which he was not properly entitled to draw, but, in my opinion, they are inferences of fact, which I should not be justified in setting aside in second appeal, and in any case they are not shown to have been based on an incorrect application of any principles of law. The result is that the judgment and decree of the learned Subordinate Judge must be affirmed, and this appeal dismissed with costs. Leave to appeal under Clause 15, Letters Patent, is granted.