JUDGMENT
K.A. Swami, J.
1. This appeal is preferred against the Judgment and decree dated 31-3-1977 passed by the learned Civil Judge, Mangalore, South Kanara, in R.A.No. 62/1976 confirming the Judgment and decree dated 12-7-1976 passed by the learned I Additional Munsiff, Mangalore, in O.S.No. 599/1974. Thus, the appellant in this appeal is the plaintiff and the respondents are the defendants.
2. In this Judgment, the appellant and the respondents will be referred to as the ‘plaintiff’ and ‘defendants’ respectively.
3. The suit was filed on 24-9-1974 for a permanent injunction restraining the defendants, their men, servants, agents, representatives and assigns from in any way interfering with or preventing the flow of water from the plaintiff’s property to the defendant’s property and its outlets through the eastern compound wall of the defendant’s property to the poramboke Municipal channel by the side of Kavoor cross road.
4. On the basis of the pleadings, the trial Court framed the following issues:
1) Is the plaintiff the Mulgeni tenant in respect of plaint ‘A’ Schedule Property?
2) Whether the water from the hillock was flowing to cement channel ‘xxx’ in the plaintiff’s plot and then passed through the sluice ‘A’ into the 1st defendant’s plot and flowed in channel ‘yyy’ and then to the drain through the sluice ‘B’ as shown in the plaint plan?
3) Whether the plaintiff has a right to allow the said water to flow as set out in issue No. 2 from his plot to that of the 1st defendant as an easement of necessity?
4) Whether the plaint plan is correct?
5) Whether the plaintiff’s compound wall collapsed due to the torts committed by defendants and if so, whether the plaintiff is entitled for damages and what is the quantum of damages the plaintiff is entitled to?
6) Whether the plaintiff is entitled for a permanent injunction as prayed for?
7) What reliefs?
5. The trial Court held that the plaintiff was a Mulgeni tenant of plaint ‘A’ schedule property. It answered issues 2 to 6 in the negative and accordingly dismissed the suit. The trial Court was of the view that it was not proved that the channel ‘xxx’ was in existence in plaint ‘A’ schedule property since more than 20 years; that the plaintiff admitted that he had dug up a man-hole at the end of channel ‘xxx’ and he had also dug up a man-hole in front of his house on the northern side and the two manholes were connected through pipes; that water from the channel ‘xxx’ flowed through the manholes and from there through the pathway to the Municipal drainage; therefore, there was alternative course for the discharge of the water from the plaint ‘A’ schedule property; hence the easement of necessity was not proved. It also further held that the plaintiff failed to establish his right to natural flow of water; that he had constructed a building by extending it upto 20′ x 45′ towards the west whereas originally there was a small house containing 4 rooms in plaint ‘A’ schedule property; that the plaintiff has made various changes in the property after he purchased the same in the year 1S64 that the construction of 18′ wall at the extreme west of plaintiff’s property prevented the natural flow of water from the hillock and water so prevented was turned at the edge of 18′ wall and was then diverted into the channel ‘xxx’. Thus the rain water, by natural flow which was originally coming In channel ‘xxx’ was substantially increased; that the right as to natural flow of water from the land at the higher level to the land at the lower level exists only so long as the water naturally flows; that it is most essential for the plaintiff to allow the water to flow in a natural course; that it is not open to him to change or add to natural flow and then claim a right to discharge the water from the plot at the higher level to the plot at the lower level; that the plaintiff failed to establish existence of channel ‘YYY’ in the defendants’ property and he also failed to prove that the water from the channel “xxx” passed through the sluice ‘A’, then into the channel ‘YYY’, then into the sluice ‘B’ and then to the Municipal channel. On issue Nos. 4 and 5, it held that the plan furnished along with the plaint was not correct and that the plaintiff failed to prove that he sustained any damage due to collapse of the compound wall by the tortious acts committed by the defendants. As a result of these findings, the trial Court dismissed the suit.
6. In the appeal, the learned Appellate Judge considered the very same issues which were framed by the trial Court as the points for determination. He held that no easement of necessity or prescription was proved; that there was a natural right of easement to allow the water falling on the land of the plaintiff to flow into the land of defendant-1 having regard to the lay of the land; that such flow of water on the land of the 1st defendant from that of the plaintiff was prevented by the 1st defendant for over a period of 20 years and 2 years next before the institution of the suit, and as such, such a right was not enjoyed by the plaintiff and his predecessor-in-title for over a period of 20 years. As such the natural right of the plaintiff to drain water into the plot of land of the defendants had extinguished. Hence the plaintiff was not entitled to a decree as sought for. The learned Appellate Judge placed reliance on a decision of the High Court of Calcutta in NATABAR SASMAL v. KRISHNA CHANDRA AIR 1942 Calcutta 261. Thus even though the learned Appellate Judge reached the conclusion that the lay of the plaint ‘A’ Schedule property was such that it gave rise to the natural right to discharge water fallen on it into the land of the 1st defendant, but such a right had been lost by non-use as stated above. As such it held that the plaintiff was not entitled to the decree as sought for. Accordingly, he confirmed the decree of the trial Court and dismissed the appeal.
7. In this appeal, it is contended by Sri G.K. Shevgoor, learned Counsel for the appellant-plaintiff that even according to the findings recorded by the Appellate Court as to the lay of the land of the plaintiff and the 1st defendant, the natural right to discharge the water that falls on the land of the plaintiff into the land of the 1st defendant arises and it still subsists, as such the natural right cannot be held to have been given up; that the ultimate conclusion reached by the lower Appellate Court is not consistent with the findings it has recorded in the earlier portion of its Judgment; that the right has been in use until recently; that the sluice was removed by the 1st defendant and this aspect of the matter is very well borne out from the report of the Commissioner and this aspect of the matter has been overlooked by the lower Appellate Court. Thus the sum and substance of the submissions made on behalf of the plaintiff is that the natural right to discharge the water falling on the land of the plaintiff through the land of the 1st defendant has not been either lost or given up and as such the decree passed by the lower Appellate Court confirming the decree of the trial Court is unwarranted in lav.
8. On the contrary, it is contended by Sri V. Tarakaram, learned Counsel appearing for the 1st respondent (1st defendant) that there is no evidence to show that the so-called natural right to discharge the water falling on the land of the plaintiff into the land of the 1st defendant was exercised at any point of time; that at ary rate such a right is not mentioned in the document Ex.D.1 of the year 1932 under which the 1st defendant purchased the mulgeni right from the mulgar; that in addition to this, there is no other record or evidence to show that such a natural right was exercised at any point of time; that admittedly the water falling on the land of the plaintiff is not allowed to flow in the natural manner in as much as the plaintiff by constructing the drain has been discharging the water falling on the southern side of the plaint ‘A’ Schedule property by artificial means i.e., through the drainage into the Municipal drain existing on the northern side of the plaintiff’s land; that such a drain has been in existence since a long time, therefore the plaintiff cannot claim either the natural right or an easement of necessity; that at any rate, in order to claim natural right to discharge the water falling on the land at the higher level to the adjoining land at the lower level, the flow of water must be natural and the flow of water should not be conducted through a channel by artificial means or through any act of human agency. Therefore, it is submitted that the decree passed by the 1st Appellate Court is in accordance with law and there is no reason whatsoever to interfere with the same,
9. Having regard to the aforesaid contentions, the points that arise for consideration are as follows:
1) Whether the lay of the land of the plaintiff i.e., plaint ‘A’ Schedule property and that of the 1st defendant is such as to give rise to the plaintiff a natural right to discharge the water falling on his land through the land of the 1st defendant?
2) If the answer to point No. 1 is yes, whether such natural right on the facts and circumstances of the case, can be held to have been given up or abandoned or lost?
3) What ecree?
POINT No. 1
10. Before the lower Appellate Court, It was conceded by both the sides that the plaintiff had based his relief in the suit on a natural right arising out of the lay of the lands of the plaintiff and the 1st defendant. In this regard, the lower Appellate Court has specifically stated thus:
“It is now fairly conceded before me by the learned Counsel appearing for the respondents (defendants) as well as Sri M.B. Muliya, the learned Counsel appearing for the appellant (plaintiff) and respondents (defendants) and it is neither an easement of necessity nor an easement acquired by prescription. Though it is stated in paragraph 2(c) of the plaint that, the right to drain water is ancient, mamool and an easement of necessity, the averments made in the plaint will clearly show that what has been claimed by the appellant (plaintiff) is a natural right arising out of the location of the lands of the appellant (plaintiff) and respondents (defendants). It is a riparian right referred to in Section 7 of the Easement Act and pointedly illustrated by illustration (i) to that Section.”
11. With regard to the lay of the land of the plaintiff and that of the 1st defendant, there is no dispute and the lower Appellate Court has recorded a categorical finding in this regard. It has also stated that such lay of the land of the plaintiff and the 1st defendant has not even been disputed. Therefore, it is necessary to reproduce that portion of the Judgment of the lower Appellate Court wherein the finding as to the lay of the land and natural flow of water from the land of the plaintiff into the land of the 1st defendant, is recorded. In paragraph 6 of its Judgment, the lower Appellate Court has held as follows:
“It is not in dispute that to the west of the plot of the appellant (plaintiff), there is Hat Hill and the top of the Hat Hill is about 10 to 20 ft. higher than the level of the western-most part of the plot of the appellant (plaintiff). Therefore, all the rain water that is falling on Hat Hill must naturally flow into the plot of the appellant (plaintiff). It is further not in dispute that the plot of the respondents (defendants) immediately adjoins the plot of the appellant (plaintiff) on the eastern side and the level of the plot of the appellant (plaintiff) is 8 to 10 ft, higher than the level of the plot of the respondents (defendants). It is further not in dispute that to the east of the plot of the respondents (defendants), there is a Municipal Road by the side of which there is a drain. It is an admitted fact that the Municipal road and drain are about 8 to 10 ft. lower than the level of the plot of the respondents (defendants). Thus, in view of these topographical location of the plots of the appellant (plaintiff) and respondents (defendants), Hat Hill and the road, the water has to flow as per law of gravitation from Hat Hill upto the plot of the appellant (plaintiff), then into the plot of the respondents (defendants) and then to the Municipal Drain, Hence, all that water flows into the land of the appellant (plaintiff) from Hat Hill and all that water which falls into the land of the appellant (plaintiff) has naturally to be drained out to the Municipal Drain and the servient owners, the respondents (defendants) are bound to receive that water and allow it to be drained into the Municipal drain.”
12. The aforesaid findings as to lay of the land of the plaintiff and defendant No. 1 and natural flow of water from the plaintiff’s land on the plot of land of defendant No. 1 and then on to the Municipal drain, recorded by the lower Appellate Court are findings of fact. These findings are based on the evidence on record. Thus in this case, it is established that the plaint ‘A’ Schedule Property adjoins the plot of land of the 1st defendant and it is situated on a higher level than that of the 1st defendant. Further water flows into the plaint ‘A’ schedule property of the plaintiff from the Hat Hill which is on a higher level than that of the plaint ‘A’ schedule property. The situation of the plaint ‘A’ schedule property is such that the water falling on it must pass through the adjoining plot of land of the 1st defendant. The plaintiff, as the Mulgenidar of the plaint ‘A’ schedule property has the right to enjoy without disturbance by another, the natural advantages arising from its situation. Of course, this right, subject to any law for the time being in force, is inherent in the land itself as it arises out of the very situation of the land. It is natural to. the very lay of the land. It is a natural right which is in confermity with law of gravitation because water flows from higher level to the lower level in the ordinary course of nature. Therefore, it is in the nature of easement imposed by the nature itself. This right of a proprietor of land situated on a higher level to discharge the water falling on his land through the land adjoining to it at a lower level is a natural right and it continues as long as the lay of the land continues. This natural right is specifically recognised by Clause (b) of Section 7 of the Indian Easements Act, 1882 (for short the ‘Act’), which specifically provides that it is the right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation. Illustrations (g) and (i) to Section 7 of the Act further clarify the position. Illustration (g) specifically provides that it is the right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel. In this case, we are concerned with the water falling on the land of the plaintiff corning under the latter portion of Illustration (g). Illustration (i) further clarifies that It is 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. There is no other law for the time being in force, which is relied upon by the defendants which restricts or takes away the right of the plaintiff to discharge the water naturally falling on his land in question, which is situated on the higher level than that of the first defendant into the plot of the land of the first defendant which is adjacent to and is atthe lower level.
13. In GIBBONS v. LENFESTEY AND ANR. AIR 1915 PC 165 the natural right of drainage of the superior proprietor was considered. As this decision has been referred to in the subsequent various decisions of the High Court in India, it is just and appropriate to refer to the relevant portion of the decision, which reads thus:
XXX XXX XXX
But the right of the superior proprietor to throw natural water on the lower land is not an ordinary servitude to which this rule can apply. It is a natural right inherent in property; it is a question of nomenclature whether it is or is not called a servitude."
XXX XXX XXX
It is true the Roman designated this right as servitude, but they explained the distinction by dividing servitude into three classes natural, legal and conventional and it is to the first class that this belongs. The law may be stated thus; 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 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 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.
xxx xxx xxx xxx xxx xxx
The right, however, of the superior proprietor is not quite absolute. The limits 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 a pipe supply, or draining another watershed and then insist that all the water so brought on the land should be received by the inferior proprietor to his detriment. At the same time exception No. 2, which has been sustained, betrays a wrong view of the law, and indeed, as expressed, is self-destructive. It speaks as if “changer” and “aggraver” were convertible terms, which they are not. Nor does the mere fact of building forfeit the right. No doubt a proprietor may not build on the extreme verge of his property and then throw water off his roof on to the neighbour’s land; that would require the constitution of a servitude which the Romans called stillicidium, and English law calls “eaves-drop”. But if the water from the roof of a building falls on the proprietor’s own grounds, it does not cease to be natural water, but must be received by the lower proprietor as the water was received before the building was there.”
Before the decisions of the various High Courts are referred to, it is necessary to advert to a decision of the Supreme Court in PATNEEDI RUDRAYYA v. VELUGUBANTLA VENKAYYA AND ORS . The Supreme Court has considered the right of owner of upper land to pass flood water on to lower land based upon Section 7 Illustration (i) of the Act. It is held thus:
“The High Court seems to be of the opinion that the floods, as a result of which the plaintiff and the defendants suffer damage, are an unusual phenomenon. Here again, the High Court has gone wrong because the lower Appellate Court has found that these floods were a usual occurrence. Where a right is based upon the illustration (i) to Section 7 of the Indian Easements Act, 1882 (5 of 1882), the owner of higher land can pass even flood water received by him on to the lower land, at any rate where the flood is a usual or a periodic occurrence in the locality. The High Court has quoted a passage from Coulson and Forbes or Waters and Land Drainage, 6th Edition, p.191 and a passage from the Judgment in Nield v. London & North Western Railway, (1874) 10 Ex 4 in support of its conclusions. In the passage in Coulson & Forbes it is stated that the owner of land must not take active steps to turn the flood water on to his neighbour’s property. Here, the dam erected by the defendants 1 and 2 stems flood waters going from plaintiff’s land down to the defendant’s land and so the passage does not support the conclusion of the High Court. The decision in Nield’s case, (1874) 10 Ex 4 is further based on the “common enemy” doctrine. In that case also there are certain observations which would militate against the conclusion of the High Court. For instance:
“Where, indeed, there is a natural outlet for natural water, no one has a right for his own purposes to diminish it, and if he does so he is, with some qualification perhaps, liable to any one who is injured by his act, no matter where the water which does the mischief came into the water course.” Of course, the Court in that case was dealing with water flowing along a natural water course. 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.”
A Full Bench of the High Court of Madras in SHEIK HUSSAIN SAHIB v. PACHIPULUSU SUBBAYYA AND ANR. AIR 1926 Madras 449 considered the natural right of owner of upper land to discharge surface water falling on the lower land. The following question was referred to the Full Bench:
“Whether the owner of a plot of land on a lower level on to which water flows in the ordinary course of nature from adjacent land on a higher level is entitled in law so to deal with his land as to obstruct the escape of water from the higher land?
The decision of the Full Bench has been correctly summarised in the Head Note of the said decision as follows:
“Where two contiguous fields belong to different proprietors, one of which stands upon higher ground than the other, nature itself may be said to constitute a servitude on the inferior tenement by which it is obliged to receive the water that falls from the superior. If the water which would otherwise fall from the higher ground 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. The lower heritor cannot object so long as to flow whether above or below ground is due to gravitation unless it has been unduly and unreasonably increased by operations which are in aemulationem 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 there is no distinction in principle between water raised from a mine below the level of the surface of either property and water artificially conveyed from a distant stream. One land owner cannot by altering the condition of his land, deprive the owner of the adjoining land of the privilege of using his own as he might have done before. The distinction between rural and urban areas drawn in 29 Madras 539 arises from the accident that Illustration (a) to Section 7 of the Easements Act instances a case of land in an urban area because it wishes to safeguard the statutory rights of urban authorities to restrict unapproved methods of dealing with land and buildings. Really there is no such distinction.”
Thus, this decision makes it clear that the water falling on the land of the superior proprietor can even be collected and discharged through a channel on the adjacent land. The owner of the adjacent land is under an obligation to receive that body of water on his property. However, he is under no obligation to receive foreign water brought to the surface of the superior proprietor by artificial means. This decision also further makes it clear that there is no distinction between rural and urban area.
Again, in KASIA PILLAI v. GANESAMUTHU-KUMARASAMIA PILLAI AIR 1929 Madras 337 a Division Bench held thus: "The owner of upper lands in entitled to discharge into the lower lands the surplus rain water as well as water brought into his lands by irrigation for ordinary agricultural operations, and he can exercise this right by opening vents in his bund so long as no damage is caused to the owner of the lower lands." This decision also followed the decisions in Gibbons and Sheik Hussain Sahib's cases. This decision also affirms the view that the owner of upper land is entitled in exercise of his right to discharge the water from his land by opening vents in his bund so long as no damage is caused to the owner of the lower land.
In SINNANA GOWNDEN AND ORS. v. VEERAPPA GOWNDEN AND ORS. AIR 1930 Madras 676, the view expressed, in the decisions in Gibbons’, Sheik Hussain Sahib and Kasia Pillai’s cases, was reiterated and it was held that the water which would otherwise fall from the higher ground insensibly without hurting the inferior tenement, could be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it and the owner of the inferior land would be bound to receive that body of water on his property without the positive constitution of any servitude.
In NAGARENTHA MUDALIAR v. SAMI PILLAI AND ANR. AIR 1936 Madras 682 it was held that the right of a owner of a land on a higher level to send down water is a natural right inherent to the property or water flowing in a natural stream over the land. It is extenced to spring water on the land or to water which the proprietor might by operations on the land such as sinking a well or opening a fountain might cause the water to flow. However, in the instant case, we are not concerned with any such water, but we are concerned only with the rain water that falls directly on the land of the plaintiff from the Hat hill.
Again in MELEPAT MADHATHIL M.R. VENKITARAYA AYYAR AND ANR. v. NEELAMANE SANKARAN EMBRANDIRI AND ANR. AIR 1938 Madras 649 following the decision in Sinnana Gownden's case a Division Bench held thus: "The law governing the point is thus stated in Peacock on Easements: 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 (Edn.3, p. 293).
This principle is embodied in Illustration (i) to Section 7, Easements Act. The plaintiff does not dispute that his land is on a lower level than the defendants’ plots. The right, however, of the superior proprietor is not quite absolute. It would not, for instance, be within his right to introduce water which was foreign to the lands (Coulson and Forbes on Waters, Edition 5, pp. 142 and 143). Further, there is no obligation upon the owner of the lower land to submit to an artificial discharge of water from his neighbouring lands (Peacock on Easements, Ed.3, pp. 293 and 294).
XXX XXX XXX 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 Injunctions, Edn.6, p.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." In SITARAM MOTIRAM v. KESHAV RAMACHANDRA ATR 1947 Bombay 4 a Division Bench of the High Court of Bombay, after referring to the decisions in Gibbons' case, RAMASWAMI v. RASI AIR 1913 Madras 852 Sheik Hussain Sahib's case, 4 Nagarentha Mudaliar's case and Venkitaraya Ayyar's case held thus:
“We are therefore of opinion that the current of authorities both in England and India is to the effect that although the upper proprietor has in the course of the draining operations a right to collect surface water and discharge it in a body on the land on the lower level and although the plaintiff (owner of such land) is bound to receive this water, the upper proprietor cannot by adopting a particular system of drainage affect the land on a lower level in an injurious manner. The owner of the land on a lower level being subject to a disadvantage enjoined by nature has got to submit to all the consequences resulting from the owner of the upper land using that land in a natural way for the purpose of draining it or for the purpose of agricultural operations. But if the owner of the land on a higher level uses the land in an unnatural way or in the course of draining operations collects the water in one body and discharges it on the plaintiff’s land, then although the plaintiff is bound to receive that body of water he has a cause of action if, as a result, the plaintiff’s land is subjected to a damage greater than what it would have received as a result of the disadvantage imposed upon it by nature. This conclusion is, in our opinion, nothing more than the application of the principle in Section 23, Easements Act, to the natural rights which are closely akin to easements, as has been pointed out by the Full Bench of the Madras High Court in 40 Mad. 441 at pp. 446-447.”
In KAOSAL MOHAN POWAR v. KODU DAJIBA POWAR AND ORS. AIR 1946 Nagpur 75, it is held that the plaintiffs, who are the rightful possessors of land, on a higher level than the defendant’s have a natural drainage in that direction and a right to discharge the surplus rain water which falls on their land to the defendant’s land and the defendant is bound to accept the water. The defendant cannot raise artificial barriers on his land which cause the water to accumulate on the plaintiffs’ property. He cannot do this even if it is necessary to protect his own property. Similar view is expressed in GANESH PANIGRAHI v. JURA SAHU .
14. However, it is contended by Sri. Tarakaram, learned Counsel for the first defendant that the natural right to discharge water falling on the land due to gravitation is available only in respect of agricultural lands and not in respect of urban properties and that it is also not open to the owner of upper land to collect the water falling on such land through artificial channel. The water falling on the upper land should according to learned Counsel be allowed to go in the natural way as it falls. It is not possible to accept both the contentions. The contention that the rain water falling on the upper land should be allowed to flow insensibly is it falls has no reason or logic. If the rain water falling on the upper land is allowed to flow into tne lower land in an unregulated manner as it falls it would even prove to be injurious to the owner of the lower land. The criterion is that the regulation of such water should not hurt the owner of the inferior land and should not cause additional burden. This contention has to be negatived having regard to the various decisions in Sheik Hussain Sahib’s case, Kasia Pillai’s cases and Sinnanna Gownden’s case. In addition to these decisions, in SAMPURAN SINGH s/o KAHLA SINGH v. ARJAN SINGH s/o MANGAL SINGH AND ORS. on considering the scope of Section 7 read with Illustration (i) of the Act it is held thus:
“It only connotes that if there is a defined channel and the water can get through that channel, it must not be allowed to sprawal on the adjoining land. But if there is no de.fined channel from which the water can flow, then the land which is naturally situate at a lower level has to take the burden of the flow of that water. This provision has merely recognized the law of nature for otherwise if the natural flow of water is obstructed, it can cause havoc to the lands from which it naturally must drain out. In the present case there is a defined channel and therefore the water could flow through it but for the fact that it has been blocked by the defendant,
That being so, we are constrained to hold that the learned single Judge was in error in holding that on the facts found by the Courts below the plaintiff’s case did not fall within the ambit of Section 7 and that he was not entitled to relief thereunder.”
Similarly, it is also not possible to accept the contention that the natural right recognized by Section 7 of the Act is not available in respect of urban properties. In my view it is available both in respect of urban properties as well as agricultural lands.
15. As the natural right to discharge water falling on the land at a higher level to the adjacent land at a lower level is based on the natural situation of the land, and it is the law of gravitation that the water flows from the higher level to the lower level, the fact that the land is ‘urbanised land’ or ‘agricultural land’ does not make any difference because the law of gravitation does not know and cannot make any such distinction. Section 7 of the Act which relates to natural right and Section 4 of the Act which defines ‘easement’ do not make any distinction between ‘urban land’ and ‘agricultural land’. Section 7(b) of the Act specifically ensures that there is a right in every owner of immoveable property subject to any law for the time being in force, to enjoy without disturbance by another, the natural advantages arising from its situation. Therefore every owner or possessor of a building site including a building built thereon or an agricultural land is entitled to enjoy all the natural advantages that arise from its situation without disturbance by another, of course, ubject to any other law for the time being in force. The right claimed by the plaintiff in the instant case is one such right entitling him to discharge the rain water falling on his site into the site of the 1st defendant. As already pointed out, it arises out of the lay of both the sites because the site of the plaintiff is situated on the h igher level than that of the 1st defendant. Therefore, naturally, the water that falls on the site of the plaintiff has to flow into the site of the 1st defendant in the natural course. Section 7 of the Act and the illustrations (g) and (i) thereto do not lend support to the contention of Sri Tarakaram, learned Counsel for the 1st respondent (1st defendant) that such a right is confined to agricultural lands only. At this stage, the decision in KUMARA PILLAI VELAYUDHAN PILLAI v. RAYAPPAN NADAR ASIRVADOM NADAR 14. AIR 1955 Travancore Cochin, 112. After referring to Gibbon’s case, it is held thus:
“4. Plaintiff has canalised the draining of the rain water through the sluice marked CE in the plan Ex.B, and the complaint of the defendants is not that such canalising will affect them adversely but that the plaintiff has no right to do so.
5. The natural right of drainage to discharge surface water possessed by the upper heritor cannot be limited merely to the natural regulation of the water, according to the law of gravitation which allows it to find its way down to the lower tenements in changing channels or promiscuous spills. It includes a right to collect in a body all the natural surface water which may be found on a tenement, and to discharge it down, without causing more injury than it would have caused by its natural unregulated flow. The lower owner has no cause for complaint if he ‘receives without additional injury’ the upper water in a body instead of receiving it in its diffused natural state. (Joshi-Easements and Licenses, page 346).”
Thus from the aforesaid decision, it is clear that the right is not confined to agricultural lands only but It is available in respect of urban lands also. In Gibbon’s case? the relevant portion of it has already been extracted, the Privy Council has specifically observed that the mere fact that a building is built on the land, the right is not forfeited and if the water from the roof of the building falls on the proprietor’s own ground, it does not cease to be natural water and it must be received by the lower proprietor as the water was received before the building was constructed. Therefore, the contention is liable to be rejected and it is accordingly rejected. For the reasons stated above, point No. 1 is answered in the affirmative.
POINT NO.2
16. The learned Appellate Judge after recording the findings as to the lay of land and other aspects as noticed in para 11 supra, on the basis of the decision in Natabar Sasmal v. Krishna Chandra Bera has held that the natural right to drain out water falling on the plain. ‘A’ Schedule property into the adjoining plot of land of the 1st defendant has been prescribed against by reason of the fact that the water falling on the southern portion of the land of plaint ‘A’ schedule property is being discharged through the drain leading upto the Municipal Gutter situated on the northern side of the plaint ‘A’ schedule property for over a period of 20 years, therefore, it is lost. On the basis of this conclusion reached by him, the learned Appellate Judge has confirmed the decree of the trial Court and dismissed the suit.
17. There is no doubt that the lower Appellate Judge has not correctly understood and applied the decision of the High Court of Calcutta in Natabar Sasmal’s case, Before this aspect of the matter is examined, it is relevant to notice the report of the Commissioner which is at Exhibit P-2, the correctness of which is not disputed by either side.
18.1. After noticing the natural flow of water from Hat Hill into the plaint ‘A’ schedule property of the plaintiff and then flowing into the building site of the 1st defendant through the Municipal drain, the Commissioner has observed that the water falling on the land of the plaintiff flows into the channel on the southern side of the site of the plaintiff and through the channel it flows towards the east into the property of the 1st defendant. He has also further observed that in the property of the 1st defendant there are signs of water flowing from the plaint ‘A’ schedule property of the plaintiff and the stones fixed there are very old. The Commissioner has further observed that just near the pathway leading to the plaint ‘A’ schedule property of the plaintiff situated to the north of the plot of the 1st defendant, there is a manhole similar to the one noticed by him at the end of the channel. The Commissioner has further opined that the water falling on the plot of land of the plaintiff from the Hat Hill, flows through the channel and goes into the land of the 1st defendant and then flows into the Municipal drain. The Municipal Drain referred to in this connection by the Commissioner is the one situated on the eastern side of the 1st defendant’s plot of land, The plaint ‘A’ schedule property of the plaintiff as noticed by the Commissioner, consists of two levels. The northern side is higher than t.he southern side. The northern side slopes towards the north and the southern side slopes towards the south. The water falling on the plaint ‘A’ schedule property on the northern side flows towards the north from the pathway and then it flows into the Municipal drain situated on the northern side which is intended for discharging water not only from the house of the plaintiff but also from the other 9 houses. As far as the water falling on the southern portion of plaint ‘A’ schedule property is concerned, It flows in a body through channel running along the southern compound of the plaint ‘A’ schedule property as noticed by the Commissioner in his report. The report of the Commissioner further makes it clear that the 1st defendant has caused an obstruction to the free flow of water from the plaint ‘A’ schedule property into his property. The report also further notices the water mark left on the compound waii existing in between the two sites towards the site of the plaintiff was due to stagnation of water. The stagnation of water was due to the obstruction caused by the 1st defendant to the free flow of water from the plaint ‘A’ schedule property into the property of the 1st defendant.
13.2. Tills being the position, the learned Appellate Judge is not justified in holding thai there has been abandonment of the right to discharge the water falling on the southern side of the plaint ‘A’ schedule property of the plaintiff, into the plot of land of the 1st defendant. It is not the case of the defendants that there was an alternative arrangement made by the plaintiff and due to that alternative arrangement, a change was brought about either in the level of plaint ‘A’ Schedule property or in the topography of it in such a manner so as to make it impossible or unnecessary to discharge the water falling on the southern side cf plaint ‘A’ schedule property of the plaintiff into the plot of land of the 1st defendant. It is also not the case of the defendants that there was a bifurcation of both sites by creating a permanent channel in between the two sites in question thereby diverting the flow of water falling on the plaint ‘A’ schedule property into that channel instead of flowing into the plot of land of the 1st defendant. In the absence of any such arrangement made by the plaintiff himself, the 1st defendant (owner of the servient tenement) by causing an obstruction to the free flow of water from the plaint ‘A’ schedule property cannot be permitted to contend that there is an abandonment of the right by the plaintiff. The 1st defendant is under a legal obligation to receive the water falling on plaint ‘A’ schedule property. He cannot cause obstruction to free flow of water from plaint ‘A’ schedule property. Learned Appellate Judge has not correctly read and construed the report of the Commissioner.
18.3. Learned Appellate Judge has committed an error of law in holding that the right to discharge the water falling on the southern side of the plaint ‘A’ schedule property has been prescribed against in as much as it has not been in use for over a period of 20 years. The natural right to discharge water falling on a higher level into an adjacent land at a lower level is inherent in the very nature of the situation of the land. This right Is not acquired by prescription. It is imposed by the nature itself. This right is neither lost nor can it be prescribed against by the proprietor of inferior tenement or agricultural land by interfering with the free flow of water in the ordinary course of nature from a higher level to a lower level.
19. As long as there is no alternative permanent arrangement made by the proprietor of the higher tenement for discharging the water fallen on it in a different direction than the natural flow of water, the right to discharge the water fallen on the higher land into the lower land situated adjoining to it cannot be prescribed against. In such a situation, there is no question of abandonment because the right arises out of the very lay of the land and not by any grant or prescription. As already pointed out, the right is inherent in the very situation of the land.
20. Natabar Sasmal’s easel arose out of a representative suit filed on behalf of the inhabitants of a group of four contiguous villages lying on the eastern side of khal flowing north to south to restrain the discharge of surplus rain water from the defendant’s mouza on the other side of the khal on and to the plaintiff’s lands in the aforesaid villages which were admittedly at a lower level. On the other side of the khal, the plaintiffs had constructed a bund or embankment to protect their lands from over-flooding. The khal tilted up and thus caused an obstruction to the defendant’s drainage. The defendants caused an opening to be made in the plaintiff’s bund in order to provide an outlet for their surplus water. The plaintiffs closed up the opening and then instituted the suit asking for a declaration of their title and for a permanent injunction against the defendants. On the facts of the case, it was held that the upper and lower lands were divided by a khal or water course which expressly served as a defined channel for carrying of the surface water from the higher level; that the existence of such a channel must imply in law a separation between the lands on either side and so long as the channel remained, there could be no question of lower land owner receiving or being obliged to receive any water from the upper area; that so long as the channel remained, it was immaterial whether any pre-existing natural right was deemed to be extinguished or merely to be held in abeyance. It was further held that a right of an upper land owner to throw his surface water on to land at a lower level was a natural right and not in the strict sense of the word an easement. It was right which was not acquired but was an incident of property owning its origin to the disposition and arrangements of nature. It was incapable of being lost by non-user or extinguished permanently and the maxim TANUM PRESCRIPTION QUANTUM POSSESSION has no application.
20.2. In Natbat Sasmal’s case, the lower Appellate Court recorded a finding on the evidence on record that it was not known how and when and in what manner and under what circumstances the khal between the plaintiff’s and defendants’ villages carne into existence. It also further held that from the local features and other circumstances it appeared that it was excavated for the purpose of serving and did serve as a defined channel for the drainage of water from the defendants’ village on the higher level. It was also further found that with the excavation of this artificial channel, there resulted an abandonment of a natural right which the owners of the higher lands might have it to discharge their waters over the plaintiffs’ mouzas. Such abandonment, according to the lower Appellate Court, was the result of an agreement between the owners of lands on either side. At any rate, it was also found that the khal did operate as an interruption to the exercise of the natural right which the defendants claimed and the interruption was so long and continuous that an abandonment could be inferred.
21. Thus it is clear that the decision in Natbar Sasmal’s case turned upon the existence of a khal of a defined channel in between the lands of the plaintiffs and the defendants which bifurcated their lands and thereby there was no question of exercising the natural right to discharge water falling on the lands of the defendants into the lands of the plaintiffs which were at a lower level. Therefore, the lower Appellate Court reversed the Judgment of the trial Court and decreed the suit. The High Court affirmed it.
22. In view of what is stated above, it is clear that in the instant case, the lower Appellate Judge has not correctly read, the decision. He has wrongly applied the decision in Natbar Sasmal’s case to the case on hand. In the instant case, as a! ready poi nted out, the plaintiff has not abandoned the natural right to discharge the rain water falling on his plot of land into the plot of land of the 1st defendant. Accordingly, point No. 2 is answered in the negative.
23. For the reasons stated above, the appeal is allowed. The Judgment and decree of both the Courts below are set aside. There shall be a decree for permanent injunction restraining the defendants or their men, servants, agents, representatives and assigns from interfering with or preventing the free flow of water collected in the channel existing on the southern side of the plaint ‘A’ schedule property of the plaintiffs into the plot of land of the 1st defendant through the outlets in the eastern compound wail existing in between the plaint ‘A’ schedule property of the plaintiff and the plot of land of the 1st defendant and thereafter into the poramboke Municipal Channel situated by the side of Kavoor cross road. The relief regarding damages is refused as not pressed. However, in the circumstances, of the case, there will be no order as to costs throughout.