Radhe Mander and Others vs Fakir Mander and Others

Sultan Ahmed, J.—These two appeals arise out of one suit instituted by the plaintiffs for a declaration of right of easement in two narrow strips called Mcohas, and for removal of an obstruction placed by the defendants in them and for injunction and damages. The plaintiffs'' case is that these Mcohas were needed for draining off rain water and the natural slope was from north to south and west to east, that these Mochas had been in existence for 24 or 25 years and during all these years the rain water had been flowing through the said Mocha?. The defendants'' case was that the suit was not maintainable, that the landlord was a necessary party, that the Mcohas were not passages for water but were parti lands used as foot paths only, that the plaintiffs had not acquired prescriptive right to the passage of water through the two Mochas and that the story of the obstruction was false and that the plaintiffs had incurred no loss and as such the suit was liable to be dismissed. The trial Court held that the plaintiffs had established their right to the Mochas in the southern block and that the defendants had restrained the flow by obstructing the passage of the water and so gave a special decree to the plaintiffs. In appeal the learned Judge held, and in my opinion very rightly, that the claim based upon easement completely failed, inasmuch as apart from the fact that they had not established their exercise of the right for the statutory period, they had not made the landlord a party and, therefore, he held that the plaintiffs could not get a declaration of the right based on easement. But by a curious process of reasoning and misconception of law he has made out a new case for the plaintiffs and given a decree to them. He has held that the plaintiffs are entitled to the natural flow of water through the Mochas and that the defendants have got no right to put any obstruction in them. A reference to paragraph 4 of the plaint will show that the plaintiffs'' case was that they dug cut earth and constructed these Mochas for the outlet of rain water from the Barethas, and this they did over 24 or 25 years ago. His whole case was based upon the right to take water through these two artificial Mochas and he based his claim entirely on the exercise of this right for a period of 24 or 25 years. How on this case in the plaint the learned Judge could change it into a claim for the flow of natural water it is impossible for me to understand. There is no doubt that cot only has every landowner a natural right to collect and retain within the limits of his own land surface water not flowing in a definite channel but he has also the right to drain it off on his neigh-hour''s lower land or put it to whatever use he pleases, but as was held in Arkwright v. Gell (1839) 5 M. & W. 203 : 2 H.& H.17 : 8 L.J. Ex 201 : 151 E.R. 87 : 52 R.R. 671 and Young & Co, v. Bankier Distillery Co. (1893) A.C. 691 : 69 L.T. 838 : 58 J.P. 100 "though there is a natural right of drainage from higher lands to lower lands of water flowing in the usual course of nature and in undefined channels, there is no obligation upon an adjoining landowner to submit to an artificial discharge from his neighbour''s lands unless he is bound by an easement to do so." The case of easement asserted by the plaintiff has failed, so the plaintiff cannot succeed upon his natural right to drain off water from higher lands to lower lands unless it is established that tie water flows in the usual course of nature and in undefined channels. On the case set up in the plaint itself it is perfectly clear that this claim, though raised for the plaintiffs by the learned Subordinate Judge in appeal, cannot be raised by the plaintiffs themselves. It is an elementary principle that if the plaintiff bases his claim upon the natural right, he must specifically plead it. This, however, as I have shown, far from having been specifically pleaded, was not pleaded at all. It has, however, been suggested by the learned Subordinate Judge that as the plaintiffs asserted that the defendants had committed a nuisance, the plaintiff''s were entitled to the abatement of that nuisance. This can only be possible if the plaintiffs can succeed in showing that they were entitled to dig earth from the Mochas which they have done. This on the findings of the Subordinate Judge the plaintiffs have failed to prove. In my opinion it is impossible to uphold the decree of the lower Appellate Court on the ground on which it is based. The result is that this appeal is decreed and the appellants are entitled to costs in this Court as well as in the Courts below.