Karnubha Verubha and Others vs Ghansyamsinhji Daulatsinghji

Chhatpar, J.—The question involved in this case is whether the Plaintiffs'' natural right as owner of land on a higher level to discharge rain water on to the land of the Defendant, whose land is situated on a lower level, is infringed by the action of the Defendant. It is not disputed that the Plaintiff''s land is situated on a higher level. Between the lands of the Plaintiffs and the Defendant is a cart road. The existence of this road, however, does not affect the right of the Plaintiffs to discharge water which naturally falls on their land over to the land of the Defendant. Such a right is recognised by Section 7(b), Indian Easements. Act. Illustration (i) refers to the right of every owner of upper land that water naturally rising, in or falling on such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto. The Privy Council case in - ''Gibbons v. Lenfestey AIR 1915 PC 165 (A) enunciated the principles in the following terms:

Where two contiguous fields, one of which stands upon higher ground than the other, belong to different proprietors, nature itself may be said to constitute a servitude on an inferior tenement, by which it is obliged to receive the water which falls from the superior. If the water which, would otherwise fall from the higher grounds insensibly, without hurting the inferior tenement, should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is, without the positive constitution of any servitude, bound to receive that body of water on his property.

Such right is not absolute but circumscribed within limits depending on circumstances of each, case. For example, the natural right does not extend to introducing water draining Anr. watershed or flowing from Anr. pipe, or to eaves dropping but includes water flowing to the lower proprietor after its fall from the roof of a building on the higher proprietor''s own grounds.

The Bombay High Court in - Sitaram Motiram Vs. Keshav Ramchandra, followed the principles laid down by the Privy Council, and the other High Courts have similarly recognised such right: See -''Kaosal Mohan v. Kodu Dajiba AIR 1946 Nag 75 (C), - Natabar Sasmal and Others Vs. Krishna Chandra Bera and Others, , - Emperor Vs. Beni, and - Sheik Hussain Sahib Vs. Pachipulusu Subbayya and Another, . Section 7(b) refers to the right of every owner of Immovable property (subject to any law for the time being in force) to enjoy without disturbance by Anr. the natural advantages arising from its situation.

The question what is disturbance of the natural right will depend upon the circumstances of each case. The right of discharging water is not an absolute right. The owner of the higher land has no right to claim that the owner of the lower land shall not make any alteration or improvements on his land, but must maintain the land in the same state and must receive the flow of water exactly in the same manner as it was being received before. In the Full Bench case of the Sheik Hussain Sahib Vs. Pachipulusu Subbayya and Another, '' in the concluding portion of his judgment, the learned Chief Justice, who delivered judgment on behalf of the Full Bench observed:

It was contended by the Respondent that if, the argument of the Appellant should be correct, the owners of the adjoining lands at a lower level would be prevented from improving their lands; but this is clearly not so as the adjoining owner can improve his lands to any extent he pleases even to the extent of raising the level of his lands, provided that he makes suitable arrangements for carrying off the water from his neighbour''s land. We are confirmed in our view by the fact that the decision in - ''Sankarappa Naicker v. Pari Naicker AIR 1915 Mad 852 (G) was referred to by the Privy Council in - Maung Bya v. Maung Kyi Nyo AIR 1925 PC 239 (H), with approval as being consistent with the authorities.

In - ''Ramadhin Singh v. Jadunandan Singh AIR 1915 Cal 486 (I), a Bench of the Calcutta High Court considered the extent of the duty of the owner of the lower land to allow water from the higher land on his land. Their Lordships observed:

The duty of the Defendants is to allow the water from the Plaintiffs'' land to pass on through their land. It is then open to them to dispose of it in the way they think best. The lower Courts have ordered the Defendants to remove the bund which they have erected. It is not necessary in order to satisfy the Plaintiffs'' claim that this should be done, but it will be sufficient if the Defendants make some arrangement by which the water coming on to their land from the Plaintiff''s land may pass over their land in such a way as not to remain on the Plaintiff''s land.

In the present case the finding of the two lower Courts is that the Defendant has not built, any bund obstructing the flow of water coming from the Plaintiff''s land but that two tenants of the Defendant had dug two wells and the earth removed was spread over on certain portions of the boundary of the Defendant''s land, the level of which at such portions was consequently raised. The finding is that there was not a continuous spreading of earth but that sufficient space was left from which the rain water could enter the lands of the Defendant from the road when there is heavy rain. The learned District Judge of the lower Court observed that the Plaintiffs could not object to raising of the level on such portions of the boundary as it did not obstruct the rainwater from entering the fields and so the Plaintiffs had no cause of action against the Defendant. Rain water only went in the fields of the Defendant when the rains were heavy and as there was sufficient space left in the boundary of the Defendant''s land to receive the rain water and as there was no evidence of the rain water being actually obstructed by the raising of the level at certain places only, the Plaintiffs could not succeed in the suit. He also held that there was no evidence that any actual damage was done to the Plaintiffs.

In view of this finding of fact, which is binding upon me in second appeal, I hold that there is no disturbance of the natural right of the Plaintiffs to discharge water on to the land of the Defendant. This appeal, therefore, fails and is dismissed with costs.