Mt. Sarban vs Phudo Sahu and others

Dawson Miller, C.J.—This is an appeal by the Defendant under the Letters patent against a decision of Mr. Justice Buoknill dated the 13th December 1921.

The suit was instituted by the Plaintiffs as proprietors of Jagir Ram Kishna Subedar claiming a prescriptive right to irrigate their lands from the surface water Bowing from the Defendant''s field which bag been bunded up and collects a considerable quantity of surface water during the rainy season. They also claimed an injunction restraining the Defendant from cutting the southern bund of her land at any place whatsoever for the purpose of draining off the water which accumulates on the north side of the bund. In order to appreciate the points in dispute, it is necessary shortly to indicate the position of the Plaintiffs'' and Defendant''s land respectively and that of other adjoining holders. The plaintiffs'' field in which the water accumulates is roughly square in shape. On the north and south boundaries there are bunds which have been in existence for many years. On the east and west sides there are also ridges or addas of less height than the bunds. Immediately south of the Defendant''s field is the land of Mr. Grant who is not a party to this suit. Immediately to the west of the Defendant''s field is the land of Dip Narain who also is not a party to this suit. South of Dip Narain''s land and west of that of Mr. Grant, lies the Plaintiff''s land which is accordingly situated to the south-west of that of the Defendant. The whole of the land slopes generally from the north-east to the south-west, that of the defendant being higher than that of the Plaintiffs or of the other persons just mentioned. To the northward and eastward, the land is still higher and the surface water flows generally in a south-westerly direction. The origin of these bunds which lies on the Defendant''s land does not appear from the evidence, but it has been assumed that the northern bund was erected many years ago in order to divert the water flowing down towards the Defendant''s land whilst that to the south was no doubt erected in order to retain the water, the flow of which was controlled by an opening in the northern extremity of the eastern adda. By inserting a hollowed palm trunk through the adda in this position the water can be allowed to flow in or can be kept out at will provided it dots not rise above the height of the eastern adda. It appears that there is a dip in the Defendant''s land to the southward, the lowest level being somewhere about the middle of the southern bund. Towards the eastern end of that bund which is where the land is a little higher than in the centre there is a cutting through the bund whereby the water when it accumulates and rises to that point escapes to the southward and flows in a south-westerly direction over Mr. Grant''s land and it is possible and perhaps probable that some of it eventually finds its way on to the land of the Plaintiffs Before the water rises, however, to this level, some of it escapes over the western adda of the Plaintiffs'' field and flows across the land of Dip Narain to the westward and eventually finds its way over the surface on to the Plaintiffs'' land. In the north-eastern corner of the Plaintiffs'' land south of that of Dip Narain and south-west of that of the Defendant there is a tank belonging to the Plaintiffs which has been in use for many years and in which they collect the surface water for the purposes of irrigation. Through the north-western corner of the Plaintiffs'' tank there is a cutting through which water is allowed to flow into the tank. The water thus accumulated by the Plaintiffs no doubt includes some of the surplus water which flows across the western adda of the Defendant''s land on to the land of Dip Narain and eventually into the Plaintiffs'' tank. It is found as a fact by the lower appellate Court, by which findings we are bound, that the water escaping from the Defendant''s land is water not flowing in any channel hut flowing over the surface and ultimately finding its way into the land of Dip Narain and thence into the Plaintiffs'' tank whence it flows out into the Plaintiffs'' land after over-reaching the banks of the tank. It appears that the Defendant has cut a second opening somewhere about the middle of the southern bund whereby the water instead of accumulating on her land and flowing eventually on to that of the Plaintiffs now escapes on to the land of Mr. Grant so that the Plaintiffs'' supply from this source has been cut off.

In the year 1877 or shortly before, it appears that the Defendant''s predecessor cut an opening through the bund in about the same position as that which is now complained of. This opening was subsequently filled up by Mr. Grant''s predecessor and by the predecessor of the Plaintiffs. A suit was thereupon instituted in that year by the predecessor of the present Defendant against the predecessors of the present Plaintiffs and Mr. Grant claiming damages and an injunction to restrain them from filling up the cutting which he had made. The Plaintiff in that suit rested his case upon a prescriptive right to discharge the water accumulated on his land, on to the land of Mr. Grant and one of the issues in the case was whether the Plaintiff in that suit had acquired such a prescriptive right. The defence set up by the present Plaintiffs'' predecessor, as far as can be gathered from the judgment of the Munsiff, who tried the suit in 1877 and of the District Judge, before whom it went on appeal in 1878, appears to have been that there never was a cutting through that part of the bund and consequently it was never filled up by the Defendants. The Munsiff found as a fact that the passage had existed in that spot for more than 30 years and for this reason came to the conclusion that the Plaintiff had a prescriptive right to keep that passage open. On appeal the learned District Judge found that the passage in question had not been in existence for any length of time but had been recently cut and that the Plaintiff in that suit had not acquired the prescriptive right upon which his claim was founded. He accordingly dismissed the suit.

In the present case the learned Munsiff before whom the case came for trial found that the Plaintiffs had acquired by prescription a right to receive the overflow of water from the Defendant''s land and that the Defendants could not interfere with that right by cutting the bund in the middle and granted a permanent injunction restraining the Defendant from cutting the bund. He further was of opinion that the rights of the parties were concluded by the previous judgment of 1878 to which I have referred above.

The learned Subordinate Judge, before whom the case came on appeal, considered that the Plaintiffs could acquire no prescriptive right in the circumstances proved as it was really a case of a servient tenement claiming an easement against the owner of the dominant tenement. He further considered that, although the Plaintiffs'' tank may hare been in existence for over 20 years, the Plaintiffs could acquire no prescriptive right to the surplus surface water which did not flow through any defined channel upon the Defendant''s land to their tank. The learned Subordinate Judge, further, whilst stating that no contention as to res judicata had been argued before him, pointed out that the question whether the predecessor of the Plaintiffs had any right of easement was not the subject-matter of the previous suit and was not decided therein. He accordingly allowed the appeal and dismissed the claim.

A second appeal was preferred by the Plaintiff to this Court and was heard before Mr. Justice Buoknill. He was of opinion that the Defendant was estopped by the decision in the previous suit from putting forward the defence that she was entitled to cut the bund as she pleased and that this concluded the matter. He was further of opinion that the decision of the Judicial Committee in Rameswar Pershad Narain Singh v. Koonj Behary Pattuk [1878] 6 I.A. 33: 4 Cal. 633: 3 Sar. 856 laid down a principle which was applicable to the facts of the present case and that a grant might be presumed in favour of the plaintiffs to the right to the surplus water flowing on to the Plaintiffs'' land from that of the Defendant''s. From this decision the present appeal is brought.

Two points have been argued before us on behalf of the Appellant, first that the previous decision cannot act as res judicata in the present case and secondly, that on the facts found by the learned Subordinate Judge, the plaintiffs could acquire no right of easement such as they claimed. With regard to the first point the question for determination and the only question which was decided in the previous suit was that the present Defendant, or rather her predecessor at that time, had acquired no prescriptive right to discharge the overflow of water from her land through a cutting in the middle of the bund on to the land of Mr. Grant and therefore could not maintain a suit for damages against the predecessors of the present Plaintiffs or Mr. Grant for filling up the cutting which she had no right to make. The question whether or not the present plaintiffs had acquired by prescription the right to a flow of water from the Defendant''s land was not decided in that suit. All that was decided was that the Defendant had not at that time acquired the prescriptive right upon which the claim for damages was based. If the Defendant with the content of Mr. Grant should make a culling through the middle of the bund so as to let the water flow on to the latter''s land it is difficult to see how anything decided in the previous suit would give the Plaintiffs any right to object. Mr. Grant is not a party to the present suit and we are not called upon to decide what the rights as between the Defendant and Mr. Grant may be, and it seems to me clear that the Plaintiffs could not maintain an action merely because the rights of a third party may possibly have been infringed. In so far as the suit is based upon any question of res judicata I think it must fail.

With regard to the second point it must be remembered that no question arises in this case of water flowing in any defined channel either natural or artificial from the land of the Defendant to that of the Plaintiffs. The right claimed is that to the surface water collected for a time upon the Defendant''s land and, after reaching a certain height, allowed to escape not by any defined or permanent channel or water course but over the surface of the neighbouring land of Dip Narain and thence on to the land of the Plaintiffs. I think it may be conceded that every land owner has a natural right to collect and retain upon his own land the surface water not flowing in a defined channel and put it to such use as he may desire. He may also allow it to flow away on the usual course of nature upon the lower lands of his neighhour and cannot be bound to prevent it from so doing. Be cannot do this, however, by an artificial discharge upon his neighbour''s land unless he has acquired an easement which his neighbour is bound to submit to. If he should acquire such an easement the owner of the servient tenement acquires no reciprocal rights as against the owner of the dominant tenement with regard to the flow of surface water, that is, water not passing through a defined channel. The owner of the servient tenement cannot compel the owner of the dominant tenement to continue the exercise of his right even where that right has been exercised uninterruptedly for over 20 years and even if its exercise should be beneficial to the servient tenement [See Arkwright v. Gill [1839] 5 M.&W. 203 Mason v. Shrewsbury and Hereford Ry. Co. [1871] L.R. 6 Q.B. 578 and Khoorshed Hossain v. Teknarain Singh [1878] 8 C.L.R. 141]. The Indian Easements Act of 1883, which, however, does not apply to this province, also recognises this principle subject to certain restrictions as to notice. In the present case it appears to me that the Defendant had either acquired an easement to allow the surplus water accumulated on her land to discharge on to the land of Dip Narain and eventually on to that of the plaintiffs or the water flowed there in the ordinary course of nature. In either case the Plaintiffs have no right of complaint if the Defendant should cease to exercise that right or to interfere with the surface water accumulating on her land so as to prevent the surplus flowing in the direction in which it previously flowed. If the Defendant has acquired an easement, she cannot be compelled to exercise it. In fact the evidence shows that the inflow of water on to the Dafendant''s land can be controlled at will, at all events until it rises so high as to flow over the adda or ridge on the eastern side. If, on the other hand, the water flows naturally over the Defendant''s land towards that of the Plaintiffs it is surface water not flowing through a defined or permanent channel and the Defendant can accumulate it and use it for her own purposes or allow it to flow away as she may choose. If she cuts an opening through the bund and lets it escape in that way by artificial means, the only person who could object is the owner of the land on to which it so flows and not the Plaintiffs on to whose land it does not flow. I think it must be taken as settled law that before the right to the use of water can be the subject of an easement by prescription or grant it must be water flowing through a defined and permanent channel. In the ease of Rameswar Pershad Narain Singh v. Koonj Behary Palluk [1878] 6 I.A. 33: 4 Cal. 633: 3 Sar. 856 relied upon by the learned Judge, whose decision is now under appeal, the facts were entirely different. In that case the right claimed was a right to water flowing through an artificial water course from one tank on the Defendant''s land to another tank on the boundaries of the Plaintiff''s and Defendant''s land and thence carried by several channels to the Plaintiff''s land for the purposes of irrigation. This construction had been in use for a great number of years when the Defendant obstructed the water channel and diverted the course of the water which otherwise would have flown into the tank from which the Plaintiff''s lands were irrigated. In my opinion that decision was no authority for the proposition now contended for. In that case the question for decision was whether the Plain tiff could acquire by long user an indefeasible right to the surplus water flowing from a reservoir on the Defendant''s land through a permanent artificial water course to a smaller tank at a lower level on the confines of the Plaintiff''s land from which the Plaintiff had from time immemorial irrigated his own lands. It was found that the tanks and water courses were of a permanent nature indicating that a permanent and connected system of irrigation for what were then the Plaintiff''s and Defendant''s mouzas, beneficial to both, was by these means provided, and the fact that the lower reservoir was built mainly on the Defendant''s land led irresistibly to the conclusion that it was constructed by, or with the consent of, the then owner of that mouza, and it was evident from its situation that its main, if not the only, use was to store water for the convenient irrigation of the Plaintiff''s mouzas. It was proved that the water had been used in this manner for irrigating the Plaintiff''s mouzas from a time beyond living memory. It appeared to their Lordships that, from all these facts, a presumption fairly arose that the enjoyment had an origin which canferred a right.

In the present case it seems to me that the essential features from which a grant or arrangement whereby the right claimed may be presumed to rest in some legal origin are absent. There is no permanent channel, artificial or otherwise, or indeed a defined channel of any sort conducting the overflow of water from the Defendant''s land to that of the Plaintiffs. The overflow is not controlled or directed in any particular course. It escapes in the first instance on to Dip Narain''s land and thence flows over the surface in such direction as the laws of gravity in the present state of the land may dictate. If Dip Narain should erect a tank and intercept it, or divert by constructing channels to irrigate his land I apprehend he would be within his rights in so doing. The fact that the overflow from the Defendant''s land helps to fill the Plaintiff''s tank is a purely fortuitous circumstance depending partly upon the acquiescence of Dip Narain and partly upon that of the Defendant who can control the inflow of water upon her own land to the extent already mentioned. The facts of the present case appear to me to bring it directly within the principle of the decision in Aftab Chowdhury and others Vs. Asokhadem and other cases cited by the learned Judge, the correctness of which he acknowledged. But, with great respect to his opinion, I think he failed sufficiently to appreciate the fundamental distinction that exists between the class of cases just mentioned and the case where, as in Rameswar Pershad Narain Singh v. Koonj Behary Pattuk [1878] 6 I.A. 33: 4 Cal. 633: 3 Sar. 856, a legal origin to the right claimed may be presumed. In the last mentioned case the facts pointed irresistibly to one conclusion, namely, that a permanent artificial construction had been made at some period beyond living memory for the very purpose of irrigating the lands of which the Plaintiff was the owner at the date of the suit. I can find nothing in the facts found in the present case which could reasonably lead to such a conclusion. In my opinion the learned Subordinate Judge rightly appreciated and gave effect to the principles applicable to the case. I think the appeal should be allowed, the judgment and decree appealed from should be set aside and the suit dismissed with costs here and in each of the Courts below.

Mullick, J.

In this case the facts found are as follows.

The surface water from the hills on the north when it reaches the Defendants embankment, marked plot No. 195 on the survey map, branches off to the east and west. A pipe constructed out of the trunk of a palm tree has been put in at the eastern end of this embankment through which the eastern branch flows into the Defendant''s Plot No. 196; the water in the western branch enters Mr. Dip Narain Singh''s land, plots Nos. 156 and 158 at some point on their northern boundary and flows down south and south-west to the lands of the Plaintiffs, namely, plots Nos. 152, 153, 154 and 145. The water from the eastern branch is next collected in plot No. 196 by means of an embankment on the south marked plot No. 197 and "ails" or ridges on the eastern and western boundaries. Owing to a depression along the southern embankment the water collects there in considerable quantities. At the eastern end of plot No. 197 there in an opening which lets out the water first into the eastern and then to the western parts of Mr. Grant''s land, which lies immediately to the south, but when notwih standing this outlet the accumulated water is sufficiently high, it flows over the western ridge into Mr. Dip Narain''s plot No 156 and enters the Plaintiffs'' tank, plot No. 154, by an opening at the north-west corner of the tank. In 1877 the present Defendant''s predecessor brought a suit (No. 370 of 1877) against the predecessor of the Plaintiffs and Mr. Grant''s predecessor who were respectively Defendant No. 1 and Defendant No. 2 in that suit alleging that he had a prescriptive right to discharge his surface water through an opening in ''he middle of the southern embankment and claiming damages against the two Defendants for filling up the opening. That suit first ended in favour of the Plaintiff in a decree which declared the size of the opening which the Plaintiff was entitled to maintain, hut on appeal the District Judge reversed the Munsiff''s decree and dismissed the suit.

In the present suit the Plaintiffs allege that in 1917 the Defendant, who is the successor-in-interest of the Plaintiff in the former suit, again cut an opening in the middle of the embankment and by diverting the water, which used to flow into his tank plot No. 154, caused damage to the extent of Rs. 100. The Plaintiffs accordingly ask for a declaration and injunction and damages.

The Munsiff decreed the suit and issued an injunction upon the Defendant res. training her from depriving the Plaintiffs "of the enjoyment" of the current of water in the bed of the southern bund, up to a limit of 6 Lagas south to north and 6 Lagas east to west.

The Subordinate Judge having on appeal set aside that decree and dismissed the whole suit, the Plaintiffs prefer the present second appeal.

Now, the first question that arises is, whether the judgment of the District Judge in Suit No. 370 of 1877 constitutes res judicata. In my opinion it does not. Although in that suit the plaintiff alleged that the object of Defendant No. 1 in filling up the opening was to fill his own tank with the surplus surface water by diverting it westward and although the Court found that if no opening was made in the middle of the embankment, the eastern lands of Defendant No. 2 and the tank of Defendant No. 1 would be benefited no issue was either expressly or by implication raised as to the right of the Defendant No. 1 to have the opening closed or as to his right to compel the Plaintiff to discharge his surplus water westward into the tank of the Plaintiff. No question was directly and substantially raised or tried as between the Plaintiff and Defendant No. 1 in that suit as to the right of Defendant No. 1 to any surplus water at all. All that was decided was that as against the Defendant No. 2, the plaintiff had no prescriptive right to let out his water by the newly made opening in the middle and that Defendant No. 1 by assisting Defendant No. 2 to block up that opening had not committed any tort.

In these circumstances, the learned Subordinate Judge was right in holding that the decision in Suit No. 370 of 1877 does not debar the present Defendant from resisting the claim of the Plaintiffs, I agree that the decree in that suit conferred a right upon Defendant No. 2 but none upon Defendant No. 1.

The next question is, whether the Plaintiff''s suit must fail on the ground of the non-joinder of Mr. Dip Narain Singh. Now, it seems clear that if a plaintiff claims an easement over the lands of several proprietors, one of whom obstructs the easement while another adjacent to his land does not do so, then there is no reason why he should seek any relief against the latter. The learned Subordinate Judge''s view that an adjudication cannot be made in this suit without the presence of Mr. Dip Narain Singh does not seem well founded.

I do not also agree with the learned Subordinate Judge''s view that this is a ease in which the owner of a servient tenement is seeking to compel the owner of the dominant tenement to continue the easement for his benefit. There is no finding that the Defendant as proprietor of plot No. 196 has a right to discharge his surface water on to the Plaintiffs'' land, and the Plaintiffs have not been shown to be the owners of a servient tenement in respect of an easement enjoyed by the Defendant.

But in my opinion the ground on which the Plaintiffs must fail seems to be this. The water is surface water the Defendant has a perfect right to do what she pleases with it; the Plaintiffs can have no right to the water accumulated within her land unless they can establish a grant or contract. The Defendant may be liable in damages to Mr. Grant for making an opening in the middle of the southern embankment but that does not give the Plaintiffs any right to relief. In my opinion there is no satisfactory evidence of the existence of a grant or contract between the predecessors of the parties by which the Plaintiffs are entitled to have the water accumulated in the southern part of the Defendant''s land so that it might overflow the western ridge. The learned Subordinate Judge appears to have considered this matter and to have found that the Plaintiffs had not made out any case for the application of the rule in Rameswar Pershad Narain Singh v. Koonj Behary Pattuk [1878] 6 I.A. 33: 4 Cal. 633: 3 Sar. 856. It is contended on their behalf that the embankment at plot No. 197 was put up over a hundred years ago for the benefit of all the neighbouring owners and that some arrangement must have been then made by which the Plaintiffs were entitled to fill their tank with the surface water from plot No. 198. No doubt the finding of the District Judge in Suit No. 370 of 1877 that the predecessor of the Plaintiffs was then claiming such a right is some evidence in favour of the Plaintiffs, but there was no finding by the District Judge on this point and the learned Subordinate Judge in, the present case was apparently unable to find inspite of the length of the Plaintiffs'' enjoyment that any grant or arrangement was ever made. Before him the Plaintiffs appear to have directed their efforts at establishing two points firstly, that they had an exclusive and unrestricted right to the whole of the surface water, and, secondly, that they had a right to the water before it entered plot No. 196. As to the former right the Subordinate Judge found that it was not claimed in the Munsif''s Court and as to the latter right that it was not claimed in the plaint. The opening in the northern embankment (plot No. 195) by which the Defendant lets the surface water into her plot No. 196 cannot be called an artificial channel, nor is there any finding that the latter plot formed an artificial reservoir which was maintained by the Defendant for the benefit of the Plaintiffs. The claim of the Plaintiffs to any easement in the water cannot be accepted.

The appeal, therefore, must succeed.