Sellappa Goundan and Others vs Subramania Goundan and Others

Natesan, J.—The Defendants, in a suit where the scope and extent of their right to store water in a pond, on their land were questioned are

the Appellants in this second appeal. The parties own lands contiguously the land standing in the names of the first Defendant and Defendants 5 to

7 being the southernmost one. It is an extent of 1*13 acres roughly, and it is an admitted fact that from time immemorial this area has been used as

a kuttai or a pond for storing water to irrigate the Defendants land further south through two sluices in the southern bund. This pond has a surplus

escape about 26 feet long and 10 feet broad at the left flank of the eastern bund. Contiguous to and north of this kuttai of the Defendants is the

land of the second Plaintiff, an extent of about 2� acres, and co-terminus with the northern boundary of the second Plaintiff''s land is the land of

the first Plaintiff. The dip is from north to south and the first Plaintiff has houses in the north-eastern corner of his land. Till about 1956, there had

been no difficulty in the enjoyment by the Defendants of their own land contiguous to that of the Plaintiffs by storing water in the pond for their own

irrigation purposes. Troubles arose after the advent of the Mettur canal, irrigation system in the area. Large areas were fed with water by the

Mettur canal system. The locality in question which was dry and always wanting in water previously, began to get plenty of water, and the pond in

question got filled up easily and was at full level for longer periods. As deposed to by the revenue inspector (P.W.1), after the introduction of

Mettur canal system in 1956, there has been considerable springs in the pond. Added to it, there were heavy rains in 1956, and, according to the

Plaintiffs, the Defendants had taken advantage of the availability of copious water supply to increase the capacity of their pond by raising the level

of the stone revetments at the surplus escape by one cubit. The Plaintiffs found that the entirety of the second Plaintiff''s land was practically for

months under water and a good portion of the first Plaintiff''s land also got submerged, with the result the regular normal cultivation of the lands had

to be given up. Challenging the rights of the Defendants to increase the height of their surplus escape, the Plaintiffs filed the suit for a declaration

that the Defendants are not entitled to submerge the lands of the Plaintiffs by storing water in their pond and for a mandatory injunction for lowering

the height of the surplus escape and for consequential permanent injunction.

The Defendants, on their part, did not claim any right as such to stagnate water on the Plaintiffs land and they made endorsement on the plaint

that they had no objection to the Plaintiffs putting up any masonry construction within the limits of their land to prevent the spread of water over

their land. Finding that there was no increase in the height of the surplus escape, the suit was dismissed by the trial Court. On appeal, the learned

Subordinate Judge, on the evidence and report of the Commissioner, has come to the conclusion that the Defendants had increased the height of

their surplus escape to increase the storage of water in the suit pond, as greater supply of water is available from 1950. The learned Subordinate

Judge found that the Defendants had impounded the increased supply of water by putting up a southern ridge to the detriment of the Plaintiffs.

As noticed by the learned. Subordinate Judge, two independent witnesses had spoken, to the fact that the Defendants had increased the height

of the natural, escape by putting up a third layer of stone revetment. According to the Commissioner (P.W.5), a retired minor irrigation overseer,

the original height of the escape, that is, the top of the second layer of stone was 48-61. Even if the surplus escape level is maintained at that height,

there would be about 4 inches of water stagnating in the middle of the southern boundary of the second Plaintiff''s land, when the pond in question

is at full tank level. When the witness inspected the land in December 1959, the entirety of the second Plaintiff''s land was under water and about

72 cents of the first Plaintiff''s land was also submerged by the water spreading from the kuttai of the Defendants. The Advocate-Commissioner

had noticed that the water level on the second Plaintiff''s land varied from a depth of 2 to 3/4 feet. The finding that there has been an increase in the

height of the surplus escape, is one of fact based on substantial evidence and has to stand and the rights of the parties have to be considered in the

light of that finding.

Learned Counsel appearing for the Appellants contends that the Plaintiffs have no right to complain, as it is open to them to put up any

construction on their property and thus avert disaster. He also contends that the Defendants are entitled to do what they please on their property

and their neighbours have to take care of their own property, particularly as the Defendants did not claim any right to flood the Plaintiff''s land. A

further contention is raised that the Defendants by themselves are not responsible for the situation, and that the water that has gathered on the

Plaintiff''s land should be held to be foreign water which, the Defendant are not bound to receive. The first Defendant, in his deposition as D.W. 1

states:

After the advent of Mettur Canal all the lands in the village have been converted into nanja lands. The water from the north runs along a channel

bordering our lands on the west and drain into suit pond. It has been so since the date of Mutter Canal. Prior to that the suit pond was only rain

fed. Only if it rains heavily the suit pond will be full and irrigate for about two months. Mettur Canal feeds for about 6 months in a year. Even after

the stopping of this canal we have water for about 4 months from the suit pond.

He admits that the present water in. the suit pond spreads over the whole of the second Plaintiff''s land and a portion of the first Plaintiff''s land.

From the above admissions of the first Defendant, it is apparent that, before the advent of Mettur canal, from time immemorial, the Defendants

were storing water in the pond only for a short period. Admittedly, the pond became full if there were heavy rains, and the irrigation therefrom was

for about two months. At the full tank level of the pond, as it originally was, no doubt a portion of the second Plaintiff''s land would get submerged.

The submersion would be to a depth of four inches only and normally it would be only for a short period, the pond water was being drawn for

irrigation by the Defendants. What transpires now is that the Defendants do not draw water from the pond for months evidently relying upon the

canal and after the canal irrigation is stopped, they are able to get water for four months from the suit pond. The damage to the Plaintiffs'' land is

obvious and clear. Even, without any increase in the storage capacity, the second Plaintiff''s lands would be kept submerged for considerably long

periods than prior to 1956.

The legal position as between contiguous land owners when the land of one is lower than that of the other has been defined in several cases. In

Coulson and Forbes on Waters and Land Drainage, (seventh edition) at page 161 it is observed:

The right of an. upper proprietor to throw natural water on the lower land is a natural right inherent in property. ""The law"" said. Lord Dunedin

Gibbons v. Lenfesty (1915) 113 L.T. (N.S.) 55 (P.C.) F.N. ""may be stated thus : when 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 the 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 ground, without hurting the

inferior tenement, should be collected in 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.

The right, however, of the superior proprietor is not quite absolute. The limit cannot be defined by definition, but each case must depend on its own

circumstances. It would not, for instance, be within his right to introduce water which was foreign to the land for example, by procuring pipe supply

or draining another watershed.

At page 162 it is observed:

Where the owner of land, without willfulness or negligence, uses his land in the ordinary manner of its use, though mischief thereby accrues to his

neighbour, he will not be liable for damages ; but where for his own convenience he diverts or interferes with the course of a stream, or where he

brings upon his land water which would not naturally have come upon it, even though in so doing he acts without willfulness or negligence, he will

be liable for all direct and proximate damages....

Counsel for the Appellants referred to the decision in John Young and Company v. Wanker Distellery Company (1893) A.C. 691 and drew my

attention to the passage occurring at page 696:

The right of the upper heritor to send down, and the corresponding obligation of the lower heritor to receive natural water, whether flowing in a

definite channel or not, and whether upon or below the surface, are incidents of property arising from the relative levels of their respective lands

and the strata below them. The lower heritor cannot object so long as the flow, whether above or below ground, is due to gravitation, unless it has

been unduly and unreasonably increased by operations which are in a emulationem vicini. But he is under no legal obligation to receive foreign

water brought to the surface of his neighbour''s property by artificial means ; and I can see no distinction in principle between water raised from a

mine below the level of the surface of either property, which is the case here, and water artificially conveyed from a distant stream.

But it is overlooked that the emphasis was that foreign water was brought by artificial means by the person against whom relief was sought.

There is no question of the Plaintiffs here seeking to pass on foreign water over the Defendants'' property and the Defendants stemming it back

over the Plaintiffs'' land. In fact, here the Defendants want to store more water and for longer periods than they had been storing from time

immemorial because of the availability of the Mettur canal water. At page 699 in the case cited above it is observed:

Then the Appellants urged that working coal was the natural and proper use of their mineral property. They said they could not continue to work

unless they were permitted to discharge the water which accumulates in their mine and they added that this water-course is the natural and proper

channel to carry off the surplus water of the district. All that may be very true ; but in this country at any rate it is not permissible in such case for a

man to use his own property so as to injure the property of his neighbour.

The following passage in the speech of Lord Shand at page 701 sets out the principle:

I am, however, clearly of opinion that while a lower proprietor must submit to the flow of water coming down upon his lands by the natural force of

gravitation, he is not bound to receive water brought up from a depth by artificial means, such as pumping. The Appellants would, no doubt, be

entitled in mining to excavate and remove the strata of minerals in the lands leased to them to any depth practicable to which they might choose to

go. If in doing so in the ordinary course of working they should happen to tap springs or a water waste from which the water by gravitation rose to

the surface and flowod down to a lower proprietor''s land, this must be submitted to; but the mino owner is not entitled by pumping to increase this

servitude or burden on one unwilling to submit to it by pumping up water which might never rise to the surface or which might only do so more

gradually and slowly and in such smaller volume.

Considerable reliance was placed on Melepat Madhathil M.R. Venkitaraya Aiyar and Another Vs. Neelamane Sankaran Embrandiri and

Another, by learned Counsel for the Appellants who argued that the water spreading on the Plaintiffs'' land was due to only the Mettur canal

system, that it was foreign water, and that, therefore, the Defendants were not liable. I am unable to see how the question of foreign water arises

for consideration in this case. The complaint is that the Defendants are stemming and throwing back the water which would naturally flow over their

land. Water has not been brought to the Plaintiffs'' land by any act of the Plaintiffs. It comes there naturally due to causes beyond the control of the

Plaintiffs. In fact, what evidently happens is : the Defendants, by reason of the pond getting full earlier on account of springs have raised its

capacity, and the extra water of the rains which the pond is not able to receive is thrown back and spread on the Plaintiffs'' land.

That apart, it cannot be said that these spring waters are being artificially thrown into the Defendants'' pond by the Plaintiffs. Water seeping

from or drained by irrigation canals and reservoirs cannot, in this country, at least be considered to be foreign water, when the irrigation system is

not a private venture but that of the Government. The Mettur reservoir and canal system is part of the system of irrigation undertaken by the State

as essential to the welfare and needs of the locality. As noticed by the Privy Council in Madras Railway Co. v. Zemindar of Carvatenagarum

(1874) 1 I.A. 364 maintenance of existing tanks and of construction of new ones in many places is a public duty. In Gajapathi Krishna Chandra

Deo v. Rajah of Vizianagaram (1930) 60 M.L.J. 662, while observing that the principles in Rylands v. Fletcher (1868) 3 Eng. : Ir. A.C. 330 were

inapplicable, Kumaraswami Sastri J., laid down at page 669:

Fifth Report shows that when Permanent Settlements were made instructions were given by the East India Company as to tanks in existence and

also new tanks that may be constructed (page 184, para 59) and there is no reason to draw any distinction between tanks in existence at the time

of the Permanent Settlement and that constructed afterwards.

Reference in this connection may also be made to the following passage in Coulson and Forbes On Waters and Land Drainage (sixth edition),

at page 178:

Where the diversion or bringing or storing up of water is authorized by Act of Parliament there is no liability on the persons so authorized for

damage done in the due and reasonable exercise of their statutory powers in the absence of negligence ; but an action will lie for doing that what

the Legislature has authorized, if it be done negligently.

It is not the case of the Defendants that either the authorities or the Plaintiffs are negligently allowing water to fall on the Defendants'' land, and

the Defendants are protecting themselves from unauthorized drainage of water In Melepat Madhathil M.R. Venkitaraya Aiyar and Another Vs.

Neelamane Sankaran Embrandiri and Another, relied upon by the Appellants the Plaintiff owned the plot A comprising also plot D. His land was

lower in level than the Defendants'' plot and he put up an embankment in the plot D, the effect of which was to prevent the escape of overflow of

water from the land of the Defendants over his land. The Defendants were owners of plots B, B-l and E. Plot C was owned by a third party.

Originally the water in question dispersed over the surface of C. By reason of the action of the owner of C, the water was turned into plot B-1. In

the normal course the water, after it had entered into B-1, would have diffused itself over B, B-1 and E, that is the Defendants'' plots, and possibly

some water might have also escaped on to the Plaintiff''s plot. But the Defendants began to drain the water in such manner as to divert it to the

Plaintiff''s plot. This was the finding and the Defendants further strengthened a bund to prevent injury to the plot E, with the result, as is found in that

case, the water that descended on the Plaintiff''s land was not water which drained naturally. The contention of the Plaintiff in that case to maintain

his right to put up embankment was that the Defendants were not within their rights to introduce water which was foreign to the land and that there

was no obligation upon the owner of the lower land to submit to artificial discharge of water from his neighbouring land. The following observations

at page 110 in Melepat Madhathil M.R. Venkitaraya Aiyar and Another Vs. Neelamane Sankaran Embrandiri and Another, show the real

position:

First, the water would not have entered the Defendant''s land, as must be evident from what has been stated above, but for the bund put up by the

owner of C on his own plot to defend from injury. The water on the upper land is not thus, what in the ordinary course of nature rises in or falls

upon it ; in other words, it is foreign water so far as plot B-1 is concerned 2 the act of the owner of C and not in the natural course, did the water

discharge itself upon B-1. Having entered that land, it stopped there and it was by a further act of the Defendants as will be shown that it

overflowed the Plaintiff''s plot. The natural right of the upper owner does not pertain to what may be termed foreign water and the finding therefore

that the water in question is foreign to the Defendant''s land, is fatal to their claim question is foreign to the Defendant''s land, is fatal to their claim.

Secondly, as already observed, there is no obligation upon the inferior tenement to submit to an artificial discharge of water from the higher ground.

When land is so located that water naturally or in the course of ordinary agricultural operations, descends from the estate of the superior proprietor

to the inferior estate, the owner of the latter cannot do anything to prevent the course of such water. The upper proprietor may drain his land, and

the proprietor below must receive the water so drained ; but the upper proprietor may not by adopting a particular system of drainage or by

introducing alterations in the mode of drainage cause the drainage water to flow on his neighbour''s land in an injurious manner (Kerr on Injunction

6th Edition page 231). Further, the upper owner is not entitled to do anything that will throw on the inferior tenement any water which would not

naturally come there Ramaswami v. rasi ILR (1913) mad. 149.

In this case the Plaintiffs are not asking the Defendants to take any water which does not naturally come on their lands. All that they are asking

is that the Defendants should not, by their bund, stem back water which would otherwise naturally flow down. The Plaintiffs have not brought any

water artificially on their own land. It is not any act of the Plaintiffs that throw, water on the Defendants'' land. It is the flood and rain water that

runs over their lands which the Defendants pen and throw back and it is nobody''s case that Mettur canal water flows over the Plaintiff''s land to

that of the Defendants Here, it is, by act of the Defendants, that water is made to overflow over the Plaintiffs'' land. In my opinion, the decision in

Melepat Madhathil M.R. Venkitaraya Aiyar and Another Vs. Neelamane Sankaran Embrandiri and Another, cannot help the Defendants in the

present case.

In Gajapathi Krishna Chandra Deo v. Rajah of Vizianagaram (1930) 670 M.L.J. 662 referred to above, where the question was whether the

Plaintiff''s land could be inundated by the spread of water from an irrigation tank, the right to flood water by storing water in an irrigation tank was

treated as easementary in character. The case of the Plaintiff that the bund was raised to a higher level than it was before was abandoned. In fact it

was found that the bund was not raised but that it was lower than the original level. It was also found that the tank which had been built in 1830

was inundating the land in question till its breach in 1878. It was not repaired till 1940. Their Lordships observed that the mere fact that the bund

was not repaired till 1910 would not amount to an abandonment of any easements or right as mere non-user was not sufficient. In Sheik Hussain

Sahib v. Subbayya (1925) ILR mad. 441 (F.B.) the question for consideration by the Full Bench was whether an owner of land on a lower level to

which surface water from adjacent land on a higher level naturally flowed was not entitled to deal with his lands so as to obstruct the flow of water

from the higher land. Coutts Trotter C.J., observed at page 446:

It is said that any right which the owner of the higher land has is not in the nature of an easement and that terms such as dominant and servient

tenements are inapplicable. That may be true in the abstract but it seems to me that the Privy Council and the House of Lords have clearly

recognized a very close analogy between the two classes of cases and that if the owner of the land at the lower level raises an obstruction to the

natural flow to the water he will be restrained if it causes or tends to cause damage to the owner of that on the higher.

Reference was made to Ramasawmy v. Rasi (1913) ILR mad. 149 where it was held that an owner of upper agricultural land was entitled to

let his water flow in its natural course without any obstruction by the owner of the lower land and that the lower owner was not entitled to raise any

bund on his land which would have the effect of seriously interfering with the upper owner''s cultivation.

The decision in Kaosal v. Kodu ILR (1945) Nag. 750 deals with a case similar to the present one. The Plaintiffs and Defendant in that case

owned adjoining plots Nos. 417 and 421. Plot No. 421 was embanked on the side furtherest from the Plaintiffs'' plot so as to form a tank. The

tank appears to be there from time immemorial. When the tank filled up and reached its maximum level, it used to overflow and spread over the

Plaintiffs'' field and they had not taken objection to that. The water used to be drained off regularly from the main tank so that by dashera every

year the Plaintiffs'' plot was left clear for cultivation. The case of the Plaintiffs was that in the year in question the Defendant failed to drain off the

water with the result they were not able to cultivate the land. The suit was for mandatory injunction to compel the Defendant to drain the tank as

usual, so that the Plaintiffs'' field might be free for cultivation by dashera every year. The other questions that arose for consideration in that case

need not be referred to. Referring to the cases relied on by the Defendant in that case, Bose J., observed at page 77:

These cases do not help the Defendant. All they lay down is that the rule in Rylands v. Fletcher (1868) 3 Eng. Ir. A.C. 330 about the absolute

liability for damage, negligence or no negligence, when water which is stored on land escapes, does not apply in the case of irrigation tanks in India

which have been used from time immemorial as storing places for water for the convenience and benefit of surrounding areas of land. That,

however, does not entitle a person to enlarge his store of water by flooding land on a higher level belonging to somebody else, or if, as in this case,

he is permitted for one reason or another to do this during certain periods of the year, it does not entitle him to travel further and enlarge either the

period or the area of inundation beyond that which was originally permitted.

With respect I agree with this statement of law. Applying this principle to the present case, it will be seen that originally the Defendants were

able to store water in their pond only for a period of two months. Now they store for a much longer period drawing water from the canal as long

as possible and retaining water in the pond thereafter for a period of four months. The Commissioner has observed that the pond, if full, even at its

usual level would keep a portion of the second Plaintiff''s land submerged. This submersion for a longer duration than had been submitted through

decades, even by itself is actionable in the light of the above decision. But the Plaintiffs have not now asked for greater relief than to have the full

tank level reduced to its original height. Learned Counsel Mr. R. Ramamurthi Iyer, drew my attention to the decision of the Supreme Court in

Patneedi Rudrayya Vs. Velugubantla Venkayya and Others, in which it is observed at page 842:

But the point is whether a person has a right to create an impediment in the flow of water along its natural direction. Now the water on a higher

ground must by operation of the force of gravity flow on to lower ground. Where the owner of the lower ground by creating an embankment

impedes the natural flow of water he would be obstructing the natural outlet for that water. It makes little difference that the water happens to be

not merely rain water but flood water provided the flood is of the kind to which the higher land is subjected periodically.

At page 844 page it is further observed:

But as pointed out in Nield''s case (1874) L.R. 10 Ex 4 the only right which a riparian owner may have is to protect himself against extraordinary

floods. But even then he would not be entitled to impede the flow of the stream along its natural course. We may repeat that the finding here is that

the floods from which the Defendants 1 and 2 are seeking to protect themselves are not of an extraordinary type. In the circumstances, therefore,

the bund erected by them and the trenches dug up by them must be held to constitute a wrongful act entitling the Plaintiff to the reliefs claimed by

him.

In Ramasawmy v. Basi ILR (1913) Mad. 149 already referred to, the following passage from Kerr on Injunctions, fourth edition, page 195, is

quoted with approval at page 150:

When land is so located that water naturally or in the course of ordinary agricultural operations, such as by deep ploughing, descends from the

estate of the superior proprietor to the inferior estate, the owner of the latter cannot do anything to prevent the course of such water. If he builds a

wall at the upper part of his estate so as to prevent the water from descending, on it whereby the land above is damaged, there is an actionable

injury.

Dealing with the argument that the result of applying such principle would be to prevent the Defendant from ever improving his land, their

Lordships observed at page 151:

It has also to be remembered that though the principle is to be maintained it has to be prudently applied as pointed out in Kerr on Injunctions.

Whether in any case the owner of the upper land has exceeded his right must be determined upon the facts of each case.

By improving his own property, the owner must not injure that of another, that means, of course, an injury which the law will take notice of.

From the above discussion, it follows that, on the finding that the third layer of revetment on the natural escape was a recent innovation, it has

to be removed to restrict the water-spread within the limits of the Defendants'' land. The Defendants have no right to pen or stem back over the

Plaintiff''s land, water that would naturally drain and escape southwards. The Defendants'' appeal has, therefore, to fail. But the decree requires

some modification. Clause 1 of the decree of the lower appellate Court will stand. But for clauses 2 and 3 the following will be substituted:

That the Defendants are hereby directed by means of a mandatory injunction to remove the third layer of the stone revetment in the natural

escape on the south-eastern corner of the suit pond and to reduce the top level of the escape to 4861:

(a) That there be a permanent injunction directing the Defendants to maintain the surplus escape for its full length of 26 feet at the level 4861 and

(b) that it be open to the Defendants, provided they can and do retain water within the limits of their land and preventing its submerging the

Plaintiffs'' land, to resort to some other contrivance than reducing the level of the surplus escape.

In the result subject to the modification of the decree as stated above the second appeal fails and is dismissed. No costs. No leave.