Doraiswami Muttiriyan and Another vs Muttachi alias Nambiyappa Muthiritan

Sadasiva Aiyar, J.—These two second appeals have arisen out of two cross-suits. In the earlier Suit No. 92 of 1914, the plaintiff is the

owner of the upper western land and he sued for an injunction preventing the defendants from obstructing the draining of the surplus water of his

upper land into the defendant''s field, through a particular madai or opening which, after traversing the breadth of the eastern ridge of the plaintiff''s

field, passes through the breadth of the boundary ridge between the two villages of the plaintiff and the defend-ants respectively and then opens out

into the defendants'' field. He also prayed for the removal by the defendants of the bund which they had put up on their own land opposite to the

madai so as to prevent water falling through the madai into the defendants lower land. The 3rd relief claimed by the plaintiff was that he might be

put in possession of the site of the madai situated on his own patta land and its entrance. The plaintiff also prayed for further reliefs byway of

damages caused by the defendants'' acts. The cross-suit was for an injunction against the plaintiff in the first suit restraining him from discharging

water through the madai into the defendants'' field and for damages. I shall call the plaintiff in the first suit (who is the owner of the upper land) as

plaintiff, hereafter. The first issue raised in that Suit No. 92 of 1914 was whether the plaintiff was entitled to discharge the surplus water of his land

into 1st defendant''s land through the madai marked A in his plan. Now the water which is collected on the plaintiff''s land seems not to be merely

the rain water which falls on that particular land, but also water brought on to the plaintiff''s land from irrigation sources for the purpose of

cultivation of sugarcane, besides the water which comes on to the plaintiff''s land from fields which are still higher up and which are also cultivated

for agricultural purposes. The judgments of the lower Courts consider the plaintiff''s right as of the nature of a natural right in some places, as a

customary right in other places and as a prescriptive right in yet other parts of the judgments. As regards a natural right strictly so called, it may be

said that it covers only the right to allow the rain water falling upon a land which is naturally higher in level than its neighbouring land to drain by

surface flow by gradually flowing over, wherever and along whatever lines the water could find its way on to that neighbouring land. But such a

strict interpretation of the expression ""natural right"" seems not to have been adhered to always by Courts. Even if the owner of the upper field

reclaims or improves portions of his land in course of ordinary agricultural operations, provided the water does come upon his land naturally and in

draining it off to the lower field he does not cause more injury to that lower field than would have been caused if he had left his land in its natural

unimproved condition, the right conferred on him by law to so drain off the water has also been described as a ""natural right."" I think also that even

if the water was not merely rain water, but water that is brought according to the custom and usages of the country along irrigation channels upon

the land, the right to pass it on to a land of a lower level may be spoken of as a natural right"" without much violence to language. In the present

case the District Munsif finds a customary right on the part of the plaintiff''s land and similar lands south and north of the plaintiff''s land in the

plaintiff''s village to throw off the water coming on to those, fields for purposes of agricultural irrigation on to the lower lands in the defendants''

village to the respective fields in the plaintiff''s village situated opposite to and south of the first mentioned lands. The Subordinate Judge in

paragraph No. 7 of his judgment notices this finding of the District Munsif that the lands in the plaintiff''s village of Pallevaram have been

accustomed to drain their water through madais shown in the Commissioner''s plan into the lower fields in the defendants'' village of

Velayudampatti, but he does not expressly find that a customary right of easement to so pass on the water through madais, even though the water

was brought in for purposes of agriculture, has been established. He refers mainly to natural rights strictly so called, that is, those rights which relate

only to the drainage of rain water and the passing on of water by surface flow to the lower land without a definite outlet. He might have intended to

find a customary right of easement also. However, I think that it is better to request the lower Appellate Court to submit a definite and clear finding

on this customary right and as to the extent of such customary right, though the defendants contented themselves in their written statement with

denying the plaintiff''s right altogether and did not in the alternative set up that the plaintiff has been trying to exceed his customary right.

I may also here refer to the fact that the District Munsif in drawing up the decree has not given sufficient consideration to the right given to a

servient owner by Section 22 of the Basements Act which says, ""the dominant owner must exercise his right in the mode which is least onerous to

the servient owner; and when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the

servient heritage, such exercise shall, at the request of the servieut owner, be so confined."" The decree gives an injunction directing the defendants

to remove the heap of mud put up by the defendants opposite to the madai A and to restore the original level of the defendants'' lands. Injunctions

as to such easements, when they have been broken, should, in my opinion, be confined to a direction to the defendants not to obstruct the exercise

of the easement and should not descend into details, as that will prevent the defendants from taking advantage of the privilege given to them by

Section 22, Easements Act. As regards the site of the madai, though the defendants in paragraph No. 8 of their written statement denied the

plaintiff''s ownership of the madai, it is clear from the plan that between the defendans'' patta land and the plaintiff''s patta land there is the boundary

ridge between the two villages and I take it that it does not belong to either party. The decree, when it restores possession of the site of the madai

to the plaintiff, must be interpreted as confined to the ridge and opening in the survey boundary of his field No. 243 as shown in the

Commissioner''s plan, and not to the eastern village boundary ridge or to the ridge further east belonging to the defendants'' field. The issue on

which the lower Appellate Court has to find is: ''Is the plaintiff, by custom or prescription, entitled to drain the water coming on his land by the

falling of rain or drained from upper fields or brought by himself for purposes of irrigation, to the defendents'' land and, if so, in what mode and to

what extent?"" The finding will be submitted on the evidence on record in four weeks from the receipt of records. Ten days will be allowed for

objections.

Phillips, J.

I agree. I do not think it is necessary in this case to express a definite opinion as to the nature or extent of natural rights. For the purposes of this

case it is sufficient to hold, as I do, that an owner of land can have no ""natural"" right to pass the water, which has come upon his land artificialy, to

the adjoining land. In this case it is admitted that the upper field is watered from irrigation sources and, therefore, a right to pass such water away

from the field cannot be a natural right. It is, therefore, necessary that the question as to whether the upper owner has a prescriptive right or a

customary right to pass away that water should be decided.

In compliance with the order contained in the above judgment, the District Judge of Trichinopoly submitted the following

FINDING.

I am required to submit a finding on the following issue:

Is the plaintiff by custom or prescription entitled to drain the water coming on his land by the falling of rain or drained from upper fields or brought

by himself for purposes of irrigation to the defendants'' land and if so, in what mode and to what extent?

The plaintiff in the issue is the plaintiff in Original Suit No. 212 of 1914, (Additional District Munsif''s Court, Trichinopoly) and the owner of S.

No. 243 (4) of Pallavaram. The defendants own S. No. 145 (2c) immediately east of the plaintiff''s land and included in Velayuthampatti village.

The plaintiff claims a right to discharge water coming on his land on to the defendants'' field and the District Munsif has found that he is entitled to

do so by custom and by prescriptive right (paragraph No. 19 of his judgment). The case of the defendants is that the water from the plaintiff''s land

is carried southwards through other fields of Pallavaram to a point where the Krishnapuram channel (shown on Commissioner''s plan) approaches

the village boundary and is there discharged into that channel. It is further the plaintiff''s case that from other fields of Pallavaram situated similarly to

his own, water is discharged on to the fields of Velayuthampatti lying immediately to the east of them. The water is said to be carried off in each

case by means of a ""Madai"" in the ridge which forms the boundary between the two villages. The defendants do not state expressly how drainage

is effected in the case of Pallavaram fields to the south of the bend in the channel but 1st defendant in his deposition denies the existence of madais.

The District Munsif has rightly pointed out that the evidence on both sides comes from interested sources. Ramaswami Chetti, however, who

owns land adjoining that of 1st defendant in Velayuthampatti, supports the plaintiff''s case. His statement is entitled to some weight as being against

his interest, although he owes 1st defendant a grudge. Reference has been made to statements by this witness and by Grurunatha Muthirian in

cross-examination as indicating that the water discharged on to Vellayuthampatti fields is rain water only. I do not think that this is the right

interpretation of the answers. I think they really refer to the irrigation season. It would be impossible to discriminate between rain water and other

water and I do not believe the witnesses intended to draw any such distinction.

If the evidence for the plaintiff is accepted, I think it establishes a custom to discharge water from the Pallavaram lands in the block now in

question on to the adjacent lands of Velayuthampatti and also that the plaintiff has in fact so discharged water from his field in a manner and for a

time long enough to give him a prescriptive right.

Which version is to be accepted must depend in a great measure on a consideration of general probabilities. The Commissioner''s report and the

other evidence establish that the Pallavaram lands slope mainly towards the east. Their irrigation source is the channel on the west. It is admitted

that water is discharged from some of these fields into the Krishnapuram channel in Velayuthampatti limits. The flow would naturally be in this

direction and I think it is probable that each landholder did discharge water in this direction by the most direct method, i.e., into the adjacent fields

of Velayuthampatti. Until recently there was no reason why this method should have been objected to. I do not think that the fields being situate in

different villages makes any difference. The Commissioner saw a number of madais in existence and it seems very unlikely that the defendants''

party would have permitted these to have been formed simply for the occasion. If the defendants'' story were true that the discharge is

concentrated at one point, there would have been signs of this but nothing of the kind is referred to in the evidence nor does the Commissioner''s

attention appear to have been called to it.

I think the probabilities are in favour of the plaintiff''s contentions and I accordingly accept the evidence on his side. I find that the plaintiff is

entitled by custom and prescription to drain the water coming on his land in the ways mentioned in the issue on to the defendants'' land. The mode

authorised is through a madai in the ridge at the eastern limit of his land. All water coming on to the plaintiff''s land by means of rainfall or drainage

from fields between his land and the channel on the west may be discharged in this way as well as water brought on to plaintiff''s land by himself for

purposes of irrigation.

These second appeals coming on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this

Court for trial, the Court delivered the following

JUDGMENT

In S.A. No. 1133 of 1916.

The second appeal is dismissed with costs.

In S.A. No. 1134 of 1916.

We accept the findings. In the result the decree of the District Munsif (confirmed by the lower Appellate Court) is modified in the following

respects:

Instead of Clause (1), substitute ""(1) That the defendants do restore the Madai A as shown in the plaint plan to its original condition and allow the

flow of water in the mamool manner through the said opening.

Add at the end of Clause (2) ""A in the plaint plan.

For ""the madai"" at the end of Clause (3) substitute ""the site of the ridge and opening in the boundary of the field No. 243 as shown in the plaint

plan so far as it is included in plaintiff''s holding.

The appellants must pay the respondent''s costs in this second appeal and bear their own.