Fudu Sahu and Others vs Musammat Sarban

John Bucknill, J.—This was a matter in second appeal, The appeal is made by the plaintiffs from a decision of the Subordinate Judge of Bhagalpur, dated the 3rd March 1920, reversing a decision of the Munsif of the same place, dated the 23rd December 1918. The facts in the case are very simple, but the points of law which are involved present considerable difficulty. They have been argued with great ability before me by Counsel both for the appellants and for the respondent. The circumstances which gave rise to the present litigation may be shortly explained as follows:

In Mauza Sadananpur Baisa, Thana Kahalgaon, in the District of Bhagalpur it is common ground that the plaintiffs own some land on which is situated a large tank This land lies south and west of a big plot of land which belongs to the defendant. The defendant''s land (which is square in shape) has, at its northern limits, a bund; at its southern limits it also has a high, large and old bunt. North of all this property lie hills, and a good deal of water comes down from this hilly water-shed and flow following the slope of the ground, from north-east to south-west. The plaintiffs tank (which is of course used for irrigation purposes) gets filled with Water probably in more than one way. In the first place, water comes straight away down into it from the north; secondly, when some quantity of water impinges on the ''northern side of the defendant''s northern embankment, this water is paid, to some extent, to divide into two parts and whilst some of it runs to the east, some of it runs to the west; after having passed the western side of the defendant''s northern embankment, it would then flow down south and, no doubt, to some extent finds its way into the plaintiffs'' tank. With those two sources or possible sources of supply this litigation is not concerned. It is in connection, however, with the third and most important source from which the plaintiffs'' tank receives its supply with which this case before me is only concerned. The northern embankment of the defendant''s land catches and holds up a large quantity of water; this water is said to be discharged artificially through what are known as Pulgurs, which, I understand, are tunnels or pipes made of hollow palm tree trunks; the water thus discharged runs from the defendant''s northern embankment across the defendant''s land and impinging against the northern face of the defendant''s southern embankment, where there appears to be quite a large burrow pit, accumulates there in great quantity. At the south eastern end of the defendant''s southern embankment there is a channel through which water can at a certain level escape. At the southwestern end, the water, on reaching a certain height, flows in a westerly direction, and, then southerly, falling, almost immediately, though passing for a short distance through a third party''s land, into the plaintiffs'' tank. It is a little difficult, without a simple sketch map, to explain verbally the exact situation of the properties in relation to each other and the exact directions in which the water is said to now; but there is a sketch map on page 14 of the paper book which substantially enables a clear view of the position to be understood at a glance. It will then clearly be apprehended that if the defendant chose to out in her southern embankment an opening (if it went sufficiently deep and was of sufficient size), it would entirely prevent any of the water which accumulates on the northern face of the defendant''s southern embankment from moving westward and finding its way into the plaintiffs'' tank; it is obvious, at a glance, that, supposing the defendant''s southern embankment was deeply out (let us say for example, in the centre), all the accumulation of water would, following the slope of the ground, run away due south over property which belongs to a Mr. Grant and which is known as Jagir Muhammad Khan Naik. Now that is what has really happened; and the plaintiffs brought this action asking for a declaration that they were entitled to this flow of water from the western end of the defendant''s southern bund and they also prayed for a perpetual injunction, against the defendant, restraining her from cutting the southern bund in such a manner as to cause disruption of the right which the plaintiffs claim. I need not, in detail, go into the various issues which were raised (at any rate at this stage) but will merely say, here, that the Munsif found substantially in favour of the plaintiffs and gave them, substantially, the order for which they asked. The Subordinate Judge, disagreeing with the Munsif, reversed the Munsif ''s decision.

There are really three important points which have been strenuously argued before me. The Subordinate Judge held that the suit should fail on the ground that the plaintiffs had not joined certain necessary parties; it is contended that in this the Subordinate Judge was in error. Secondly, the Subordinate Judge expresses the opinion that the matter had not already been concluded by the effect of a judgment in a certain suit decided in 1878; and it is contended before me that he is again, here, wrong. Thirdly, the Subordinate Judge held that the plaintiffs had not made out any claim supportable in law to the water in question; and, here, again, the appellants maintained that the Subordinate Judge has made a legal mistake.

As to the first point (i.e., the alleged nonjoinder of parties), it was contended by the defendant that the suit could not proceed and should have been dismissed; because the plaintiffs had not joined either Mr. Grant (who owned the land lying to the south of the defendant''s land and who, as I have pointed out before, no doubt would receive on his land, through the cutting of the defendant''s southern bund made by the defendant, much of the water which had previously flowed in a westerly direction and which would have otherwise debouched on to the plaintiffs'' land); and, secondly, and this is perhaps more important, because the plaintiffs have not joined as defendant one Dip Narayan Sinha, who held a Jagir to the west of the defendant''s Jagir and through a short portion of whose land it is common ground that the water passes on its way into the plaintiffs'' tank. The Munsif, although he thought that it was incumbent upon the plaintiffs to implead both Mr. Grant and Mr. Dip Narayan Sinha, on the ground that it was obvious that they were interested in what had taken place, thought that such non-joinder was not fatal to the suit in view of the provisions of Order I, Rule 9 of the Civil Procedure Code. The Subordinate Judge, whilst not thinking that the omission to join Mr. Grant was fatal to the suit, thought that the failure to join Mr. Dip Narayan Sinha, who was much more definitely interested, because, admittedly, the water used to pass through a portion of his property, was fatal to the suit. It is of course common ground that no order passed in this suit could possibly affect Mr. Grant or Mr. Dip Narayan Sinha--they not having been made parties to the action.

As for the bearing of Order I, Rule 9, upon the question generally, I think this rule must always be read subject to the fundamental restriction upon it that the Court is not going to waste its time in trying an action in which, after its hearing and decision, the result of its order made must or may clearly be infructuous or useless owing to the non-joinder of parties who were really necessary for the proper adjudication of the suit. So far, however, as the class, of cases such as this is concerned, I think that the case of Madan Mohan Chakravarty v. Sashi Bhusan Mukherji 31 Ind. Cas. 549 : 19 C.W.N. 1211 well lays down what is the position. Mr. Justice N.R. Chatterjea there says: "if a way passes over 50 different parcels of land owned by 50 different persons, and the owner of the 50th parcel obstructs the way on his own land and the owners of the remaining parcels do not raise any obstruction nor even deny plaintiff''s right, I do not think the latter are necessary parties or can be joined in a suit against the person who obstructs the way." I think this is quite a correct view to take of the law. It is pointed out here that so far as Mr. Dip Narayan Sinha is concerned he has always permitted this flow of the water to pass across his property; he has never dissented from it and further it is said that he supports the plaintiffs'' case.

With regard to Mr. Grant, I agree with the Subordinate Judge that there is no reason why his absence from the case as a party is in any way fatal to the suit'', I think, therefore, that on this point, namely, that the non-joinder of Mr. Dip Narayan Sinha justifies the dismissal of the plaintiffs'' suit, he is wrong.

The second point is one of some difficulty. The plaintiffs have brought their action against the defendant claiming that she has no right to anther southern bund is such a way as to interfere with the flow of water from the north into the plaintiffs'' tank. To this the defendant, in substance, replies that she has a right to out the bund whenever and wherever she wishes and that the plaintiffs have acquired no right to the water and never could acquire any right to any of it. With the claim and defence the pleadings close as is here perhaps, unfortunately, usual, But in support of their claim and to confute the defendant''s allegations the plaintiffs produced documents, showing conclusively that they were the owners of the Jagir upon which their tank was situated and that they had purchased this Jagir from one Chama Mandar. In fact there was no farther dispute after the production of these kobalas as to the validity of the plaintiffs'' title as to this land or tank.

What, however, was of great and perhaps of far more importance was that the plaintiffs also produced copies of judgments given in 1878: one dated the 19th February by the Munsif of Bhagalpur and the other by the Officiating Judge of the same place, dated the 29th July of the same year, when hearing the matter on appeal from the Munsif. What is still more important, however, is that the action was, admittedly, brought by one Matuki Mandar as plaintiff and he was the husband, now deceased, of the lady who is the defendant in the present suit and the respondent before me. The action was brought against Chama Mandar (who is the predecessor in-title of the present plaintiffs) and also against Mr. Grant, who has already been referred to by me as the owner of the Jagir Muhammad Khan Naik which lies to the south of the defendant''s land. The facts which were disclosed in that case have a most noticeable and important legal bearing upon the position which is the subject-matter of the litigation now before me. It is shown there that at that date, over 40 years ago, there existed, then, an important embankment which is the subject matter of the present proceedings. The plaintiff there (that is, the present defendant''s predecessor-in-title) was complaining that the defendant No. 1 in that suit who was Chama Mandar (the present plaintiffs'' predecessor in-title) had filled up an extensive cutting in the bund (which bund then existed, as now) on the present defendant''s land and which cutting had been excavated by the then plaintiff (Matuki Mandar); he there alleged that through this cutting water used to flow to the Jagir of Mr. Grant and that the object of Chama Mandar (and incidentally of Mr. Grant) in filling up this cutting was that he wished illegally to get his tank on his own Jagir filled with water. It must, I think, be taken with confidence that the tank which Chama Mandar desired to be filled up in this way was the same task as that which is referred to in the present proceedings. It is clear that Matuki Mandar''s object in cutting the embankment was to prevent his own land from being more or less inundated by water. Chama Mandar in that suit maintained that there never was any cutting in the middle of the bund, but that there always had been a cutting higher up to the east of the bund from which the surplus water drained away and that he had always enjoyed the flow of water from the western end of the bund into his tank. It will be thus seen that the issues which were raised in that case were not only between the same parties as in the present case (that is to say, between the plaintiffs'' predecessor-in-title and the defendant''s predecessor-in-title), but that they related to the very self-same question which is now being agitated between their title successors, It is true that Mr. Grant''s name appears in that case as a defendant, but this is not, in my opinion, material. The Munsif in the 1878 case held that the plaintiff was entitled to succeed to a certain linear extent in the case; i.e., that he was to be permitted to keep open a passage of six cubits in length at the centre of the bund--a curious but apparently empirical decision. But the Officiating Judge came to quite a contrary opinion; he holding that the plaintiff had no legal rights whatever, but that the bund itself was an ancient one and that Matuki Mandar had ''no right to make any cutting which would have the effect of depriving Chama Mandar of the filling up of his tank by the waters coming from the western end of the bund. It will be thus seen that, assuming, as I do, that substantially the same question and one between the predecessors of the same parties as are now engaged in the present litigation was decided in a previous case, the position is rather a curious one: and it is necessary to examine closely what bearing that former decision has upon the position, in the present litigation, both on that of the plaintiffs and of the defendant. It may be and is urged, first of all, so far as its bearing upon the position of the present plaintiffs is concerned, that if, by this former decision, the question now at issue had been finally determined in favour of the present plaintiffs'' predecessor, the present action ought not to be entertained, for the reason that the proper course for the present plaintiffs to have adopted would have been to have taken the appropriate steps to enforce the rights of their predecessor under the judgment which was in his favour. On the other band, it is contended that, so far as the former judgment affects the defendant, in the present proceedings it is conclusive and estops her from setting up in this connection the defence that she has a right to make a cutting (as is complained of) in the bund in such a way as to interfere with the rights which the present plaintiffs and their predecessor have so long enjoyed and which were secured to them and him by the order of 1878.

Let us then first of all consider the position of the plaintiffs sO far as it is affected by the previous litigation. In that suit their predecessor was not a plaintiff but was defendant. The plaintiff was seeking for a declaration that he was entitled to cut the bund-the plaintiff here (whose predecessor was one of the two defendants there) was resisting his claim; he (the predecessor of the present plaintiff''s) got no declaratory order in his favour, as the result of the suit was simply that the plaintiff''s claim was dismissed The effect of the judgment, however, was that the here defendant''s predecessor was stated by the Court to have no right to out the bund in such a way that the here plaintiffs'' predecessor should be deprived of the water in question. I confess that I cannot see, on careful examination, how the plaintiffs here could have proceeded in the old action in any way; they had had no decree in their favour, as all that had happened was that the (here) defendant''s predecessor in title had brought an action in which his claim was dismissed. The present plaintiffs'' predecessor had nothing to complain of, as he had filled up the cutting which had been made in the bund to his detriment and his action has been held to he, under the circumstances, not illegal. Nor had he nor bad the present plaintiffs anything to complain of in the position which has existed since that time up till now. When, however, now, the former plaintiff litigant''s successor has cut the bund in a manner which is prejudicial to the rights which the present plaintiffs and their predecessor have enjoyed, then directly this bund was out by the present defendant, there accrues injury to the plaintiffs. It is true that it has been found in the previous suit that this cutting of the dam was injurious to the present plaintiffs'' predecessor: but I can see nothing illegal in the plaintiffs now, when the bund is again cut, seeking to replace what has been a negative judgment in their predecessor''s favour (that is to say, merely a judgment dismissing an action brought against him) by at any rate a permanent injunction against the present defendant restraining her from cutting the embankment in such a manner as to derogate from the plaintiffs'' rights. Nor do I see why they should not now as plaintiffs seek for a positive declaration which they ask as to their rights. I do not well see in what exact fashion it would have been open to the plaintiffs here to have proceeded in any process taken out by them in connection with proceedings under the 1878 judgment; in that, their predecessor had nothing except a bare judgment in his favour and no declaratory order or decree. If he had been in the position of a plaintiff and had obtained a declaratory Order perpetuating his right and an injunction, no doubt it might have been a proper course for him or hid successor (when it was found that the person against whom such decrees were obtained was disobeying its terms) to proceed against such person by way of application for committal or attachment in order that the Court might punish such person for disobeying its orders. But, here the present plaintiffs'' cause of action only reams to me to arise when the defendant again out the bund; and I fail to see any good legal reason why, on that taking place, the'' plaintiffs should not apply for an injunction to the Court, and, also, if they so wish, for a declaration; armed with both of which they will in future be able more easily to restrain the defendant or her successors from committing what is apparently an illegal act.

Next as to the effect of this decision in the previous suit upon the position of the defendant, I think, broadly speaking, it was unnecessary and perhaps impracticable for the plaintiffs directly to plead what had taken place in the previous suit. They might possibly have done so, but I do not think it was obligatory upon them so to do. What, however, in my opinion, is clear that they can do is that, when they were met by the statement in the defence of the present defendant that they have acquired no right and that she (the defendant) can cut the bund as she likes, they are entitled to adduce any evidence (and would be entitled, if there had been a further course of pleading than obtains in this country, to plead in reply) that the defendant was estopped from setting up this defense because it had already been decided inter partes in a previous suit that she (the defendant--or her predecessor) was not entitled to cut the embankment. On this point, therefore, I have tome to the conclusion, first of all, that the plaintiffs'' procedure in this suit is not incorrect and I doubt if it was possible for them to have moved under the previous suit of 1878; and, secondly, that the defendant is estopped by the decision in the previous suit from putting forward the defence against the plaintiffs'' claim that she is entitled to out the bund as she pleases. This, therefore, really concludes the matter.

But so much important and careful argument was devoted to the third point and I have myself given to it so much consideration that I do not like to allow it to be passed by without Some expression of my view upon it. The defendant here contends that the plaintiffs could never have and never have acquired in law any such right as that which they claim; because she and her predecessors have always controlled, in fact, the flow of water which impinges upon the northern face of her southern embankment, that is to say, by means of the artificial channels in her northern embankment; and it is said that where such aft state of circumstances exists--that is to say that, where the enjoyment by one person of something given to him through the courtesy of another person depends upon that other person''s will and permission, the person who enjoys such favour can never acquire as against his courtesy grantor a prescriptive right; or, if one likes to call it so, can never claim an easement in connection with the enjoyment of an amenity controlled by the permission of the grantor. There is a ''great deal, of course, to be said for this form of argument and the kind of principle which is thus enunciated is well shown in the case of Ballare Mandal v. Bepin Behari Mandal 46 Ind. Cas. 24. In that case, water had, for many years, accumulated on high land and had found its way down across the lands of the defendants on to the lands of the plaintiff which lay at a somewhat lower level. On the defendants having stopped the flow of water on to the plaintiff''s land, the plaintiff brought a suit to restrain the defendants from so stopping it on the allegation that by their so doing they had caused serious damage to him. It was held that the plaintiff had no right which he could enforce in law; as his case was really the case of a servient tenement endeavouring to retaliate by claiming an easement against the owner of a dominant tenement. Also in the case of Bimal Chandra Chakravarti v.Chandra Kanta Chakravarti 22 Ind. Cas. 514 : 19 C.L.J. 45 one finds the same proposition somewhat similarly put forward: "Easement exists for the benefit of the dominant tenement alone and the servient owner acquires no right to insist on its continuance or to ask for damages on its abandonment." In that case the plaintiff and the defendants were neighbouring owners of land. Towards the west of the land of the defendants there was, a pathway by which water passed, during the rainy season, through a channel on the land of the defendants, and, after grossing the land of other neighbours went upon the land of the plaintiff. It was said in that case that this state of affairs had existed for over 20 years. However, the defendants in the action stopped the flow of water on to the plaintiff''s land and kept it for their own use. It should be mentioned that the water in question was surplus rain water which had accumulated on various properties. The plaintiff, thereupon, brought an action against the defendants for a declaration of a right of easement, but it was held that as the plaintiff could not establish any right to the use of the surplus water before it reached the land of the defendants, he had no claim to any easement and could acquire no rights to the water the enjoyment of which was the basis of his case. So too we find the case of Altafuddin (Aftab) Chowdhury v. Aso Khadem (Asokhadeen) 20 Ind. Cas. 315 : 18 C.L.J. 131 : 17 C.W.N. 1066. In that case, again, the plaintiffs and the defendant were adjoining owners of land. The defendant used to discharge water from his land through a channel on his own property into the land of the plaintiffs. The defendant, however, stopped that channel up and as a result the plaintiffs got no more water. It was held there that the plaintiffs could not acquire any right of easement. It is certainly very difficult to differentiate altogether the circumstances in the present appeal from some of the three decisions which I have quoted, but although it is, no doubt, difficult to quarrel with their legal soundness, I think that the real fundamental legal basis upon which the idea of easement is founded is well expressed in the case of Ramessur Persad Narain Singh v. Kooni Behary Pattuk 4 C. 633 : 6 I.A. 33 : 3 S. P.C.J. 856 : 3 Ind. Jur. I79 : 2 SL.R. 194 : 2 Ind. Dec 402 . This was a case in the Privy Council. In that case the defendants and the plaintiff were neighbouring proprietors; the latter had a large artificial reservoir from which by a channel a property belonging to the plaintiff had been for a long period irrigated. The defendants, however, created some embankments which had the effect of stopping the flow of water to the plaintiff''s land, whereupon he brought an action against the defendants claiming that he had a right to this water and asking that the defendants should be compelled to remove certain of these embankments, which they had erected and which diverted the water from his properties. It was admitted in this case that the user was of very ancient date. Their Lordships of the Privy Council stated that a very old and enforceable right to water flowing on to a man''s land through an artificial water-course constructed on a neighbour''s land may rest on some lost grant or some old arrangement, proved or which may be presumed from or with the owner of the land from which the water may be artificially brought; or may be based on some other legal origin inferential from the environment and circumstances: such a right may be presumed from the time, manner and circumstances under which the easement has been enjoyed.

In the case now before me there are several considerations which may well be mentioned in connection with this point, In the first place, there is no doubt that the relative position of the two parties has lasted for a great length of time; we find it the same in 1878 and even then the position was of a very old epoch. It is said that all easements must have their origin in something in the nature of a permissive factor, and in this case the circumstances are such which, I think, would justify one in drawing an inference that there had been at some time or other an arrangement between the owners of these two lands (and perhaps other contemporary owners) under which the position which has endured for so very many years was started.

It may be observed, here, also, that the defendant''s predecessor in title in the suit in 1878 does not seem to have raised this question, although it was undoubtedly a most material matter and one which might have influenced the position then very markedly; for it was, then, open to the defendant''s predecessor to have proved that he controlled by means of sluices the flow of water from his northern embankment to the place at the north of his southern embankment whence the water ran to the present plaintiffs'' tank, and if he had in 1878 then exhibited this feature, he might have made the whole question a great deal more difficult for the then defendant Chama Mandar, However, it does not seem to me that under those circumstances it is possible for the present defendant to be allowed to agitate the point in this suit. I certainly think that this point might and ought to have been made a ground of attack by the present defendant''s predecessor in the suit in 1878. It was without doubt a very material feature bearing closely upon the present plaintiffs'' method of obtaining the water from the northern face of the present defendant''s southern embankment, After very careful consideration of this appeal I have some to the conclusion, for the reasons which I have given above, that the appeal should be allowed. I do not, however, think that the form in which the suit was decreed by the Munsif, with its apparently somewhat arbitrary empirical restrictions as to the limit of the space of north of the southern embankment from which the plaintiff is entitled to obtain water, should be maintained, It would seem to me that the defendant''s real legal safety valve is the channel at the south eastern corner of her southern embankment. It would also appear that if the defendant finds that her land north of her southern embankment is in danger of being really inundated in the future, it would be her best course to try and some to some arrangement with the adjoining land owners by which, after the plaintiffs'' right has been properly satisfied and is being properly maintained, some reasonable outlet may be, by mutual agreement, fixed upon so as to avoid serious flooding of her (the defendant''s) land: this ought to be easily arranged by the good offices of a Civil Engineer, who could fix the levels of the embankment so as to ensure a proper supply to the plaintiffs'' tank and the prevention of a dangerous inundation of the defendant''s land: and I trust that the parties to these proceedings will realise that some simple neighbourly agreement is far more beneficial and far less expensive than protracted litigation.

In my view, therefore, the plaintiffs are entitled to succeed in terms of paragraphs (1) and (2) of their plaint.

I understand that the question of damages does not now arise, but I think that the plaintiffs should be awarded their costs both here and in both Courts below.