Satyanarayan vs Bhagwan

M.W. Deo, J.—This second appeal is directed against the concurrent finding of fact of both courts below resulting in a permanent injunction against the appellant and damages of Rs. 500/ - per year.

It is not in dispute that the field of the appellant is situated to the east of the fields of plaintiff-respondent. There are also more fields to the West of the field of plaintiff-respondent.

There was some controversy in the trial court as to the flow of rain water which falls on the fields of the plaintiff as well as the fields situated to the west of the plaintiff-respondent. One theory put forth was that the water coming from the west flows down to the northern side.

However, the finding of the trial court has been affirmed by the first appellate court after discussing the entire evidence on record in para 16 of the judgment that the flow of water is from the west to the east, that the water collected on the field of the plaintiff together with the water coming from the west gets down into the field of the defendant and then flows down. It is also the finding of both courts that the field of the defendant is situated at lower level than the field of the plaintiff. These findings of the fact where rightly not challenged seriously, as indeed they are based on proper appreciation of evidence made by both courts below and are binding on this Court. The question of law raised by the learned Counsel for the appellant is that even according to the plaintiff-respondent and defendant had obstructed this flow of water from the field of the plaintiff for more than 12 years and the evidence indicated that this obstruction was caused by creating a sort of barricade from the earth dug from the well sunk 15 years ago by the defendant in this field. It was, therefore, contended that there was a brake of more than 2 years immediately previous to the filing of the suit and consequently the claim of the plaintiff-respondent was barred by time.

It is surprising that in the first appellate court no reference was made to Section 7 Illustration (i) of the Indian Easements Act, 1882 which in fact is the appropriate provision relied upon by the learned Counsel for the respondents. The learned first appellate court got involved in Sections 5 and 47 of the Indian Easements Act which are not really material. It is to be borne in mind that there was no question of extinction raised in the case. For nobody alleged non-enjoyment of more than 20 years. Again the claim of the plaintiff was wrongly understood to be based on the right of Easements Act by prescription. It was rightly said on behalf of the respondent by the learned Counsel that the right of the plaintiff-respondent is in fact a natural right in view of Section 7, Illustration (i), which runs as under:

(i) 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.

As observed earlier, the findings firmly established are that the field No. 39 belonging to the defendant is situated to the east and at a lower level of the field No. 38 of the respondent situated adjacently to the west and at a higher level. Consequently it was nobody''s case that the respondent has acquired right of flow of water falling over his field down to the field of lower level of the appellant by prescription. The plaint only described the aforesaid situation of the two fields and that in terms is covered by Section 7, Illustration, (i) ibid The lower Court, therefore, for arriving at a right conclusion, to took re-course to wrong reasoning. The reasoning of the lower court cannot be sustained.

However, the result of the case will not differ. Because the respondent will have a right of natural easement of flow of water coming from other fields and also water falling over his field to flow to the field of the appellant by virtue of two factors, viz., (i) the field of the appellant is situated at a lower level compared to the field of the respondent; and (ii) the two fields are adjacent to each other. The aforesaid principle of Section 7 Illustration (it has been recognized in the case of Kaosal Mohan Power v. Kodu Dajiba Powar and Ors. AIR 1946 Nag 75 , as also in the case of Patneedi Rudrayya Vs. Velugubantla Venkayya and Others, In fact in the Supreme Court case the principle was not restricted only to flow of rain water but was extended even the flood water. Consequently as observed in the Nagpur case by Bose, J., (as he then was) the defendant cannot raise artificial barriers on his land which will cause the water to accumulate on another''s property and he cannot do this even if it is necessary to protect his own property. Reliance was placed on Hussain Sahib v. Subbayya AIR 1925 Mad 449 : 49 Mad 441.

In view of the law laid down in the aforesaid Nagpur case, it has to be held in our case also that the appellant cannot obstruct the rain water falling on the field of the plaintiff and coming to his field from the western side because of the fact that the field of the appellant is lower in level and is adjacent to that of the respondent.

The case of Jiwa s/o Onkar and Anr. v. Laxman s/o Ganesh Kulmi Second Appeal No. 187 of 1969 decided on 27.6.1980 of this Court referred to by appellant is not applicable to the facts in hand as in that case the question was of easement of flow of rain water not on the basis of level of adjacent land but that case depended upon a right of prescription acquired by flow of water through a defined channel.

The decree, as regards of payment of damages was not debated at all and no question about it was raised in second appeal.

In the result, the judgment of the appellate court is modified being on wrong reasoning; but the result is confirmed and consequently the decree of both courts below is also confirmed. The respondent will have costs of this appeal from the appellant who bear his own. Counsel''s fee, as per schedule, if certified.