JUDGMENT
Srinivasa Aiyangar, J.
1. This is a second appeal by defendant 1 in the action. The plaintiff’s suit was for the purpose of a declaration that he was entitled to pass, by cutting in the bund marked B, in the plan set out in the judgment of the learned District Munsif both the irrigation and the rain-water falling on his land, on to the land of the defendant adjacent to the plaintiff’s land. The Court of first instance held against the plaintiff so far as the right was claimed in respect of the irrigation water brought by the plaintiff on to his land, but gave a decree to the plaintiff in respect of the rainwater.
2. Both parties appealed from the decree. Defendant 1’s appeal from the original decree was dismissed by the lower appellate Court. The contention now put forward on behalf of the appellant, defendant 1, is that though the plaintiff may have the natural right of passing off. to the defendant’s land the rainwater as it falls it must be done naturally and not by adopting any artificial means for passing on that water. At first sight no doubt such a proposition may claim acceptance, but one must have regard to the fact that these lands are-agricultural lands and that the rights, such as they are claimed to be, must be allowed to be exercised consistently with the rights of the owners of both the lands to effect improvements in their own properties. Mr. Somayya contends that it is only the water that falls on the plaintiff’s land and overflows the ridges between the plaintiff’s land and the defendants’ land that can be allowed, that the defendant is under an obligation to allow to overflow in that land and that the plaintiff has no right whatever to accumulate this water on his land, make a cutting in the bund and claim to have the right of allowing all the water to flow on through that cutting. I find that in a recent case of Hussain Sahib v. Subbiah A.I.R. 1926 Mad. 449 a Full Bench of this Court had occasion to consider all the cases, English and Indian, bearing on this point. At p. 447 the learned Chief Justice has given two citations from the case of Gibbons v. Lemfesty [1916] 84 L.J. P.C. 158. One of these is to the following effect:
Where two contiguous fields belonging to ‘different proprietors, one of which stands upon a 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 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.
3. That is the statement of the learned Lord of the general law on the subject. Mr. Somayya, the learned vakil for the appellant, has not tried to canvass or criticize that position. No doubt the statement of the law is general and without any reference to possible exceptions. ‘The principle on which apparently the law is stated to be such appears to me to be that, if the owner of the higher, tenement has the right to pass on to the owner of the lower tenement all the rainwater that ‘ falls on his land the mere fact, that in the course of improving his tenement he carried out works of drain-age or other works, the result of which is that instead of the water being allowed to flow imperceptibly to the lower tenement gets collected and is passed by an artificial channel, is the result of a natural user by the owner of the superior tenement of his own land and the works of improving and the draining by him on his land, could not be regarded as any acts done on his part which would have the effect of either changing the right or increasing the burden of the obligation corresponding to the right. Conceivably, therefore, if it should be found in any case that by reason of such collecting of the water and passing it on through an artificial cutting in the bund the obligation on the servient tenement is increased in an appreciable degree or if it should be found that the damage done to the servient tenement by such” artificial drainage is appreciably in excess of the damage done when the water was passed merely naturally, it would follow that the owner of the lower tenement is entitled to object to the draining of the rainwater in that manner. It is on the assumption that the obligation of the owner of the servient tenement is not changed either in quality or increased in degree that any changes by the owner of the higher tenement of his own property are allowed and regarded as not justifying any adjustment on the part of the owner of the servient tenement.
4. In this case, therefore, what is found is that for, at any rate, seventeen or eighteen years all the rain-water falling on the land of the plaintiff has been let off through this artificial cutting in the bund on to the land of the defendant. No question has been raised by the defendant either in the trial Court or in the first appellate Court on any ground, assuming the plaintiff to have the right of passing on the rain-water on to the land of defendant 1, that the manner in which he has sought to do it has increased the obligation in any manner or to any extent. If such had been the case, if it had been alleged and proved, no doubt other considerations might arise. But I find no indication whatever in either of the lower Courts of any such position having been taken. There is also the further fact that during the 17 or 18 years, at any rate, the plaintiff has been allowing the rain-water to pass through the cutting to the land of defendant 1. If by reason of such passing on of the rain-water by an artificial cutting the obligation on the owner of the lower tenement had in fact increased, then I should certainly have expected a ground being taken and objection founded on that footing and the mere fact that no such ground ‘ has been taken or objection founded shows that this is not a case in which by reason of any such artificial passing on of the water the obligation can be regarded as increased. If, therefore, the plaintiff had the right to pass on the rain-water to defendant 1’s land and the manner in which he has been passing it for a considerable time past has not served to increase the burden or obligation on the servient tenement, there is no room for the contention put forward on behalf of the appellant. So far, therefore, as the appeal relates to this question it fails.
5. The appeal also comprises the award of damages against the defendant appellant to the plaintiff. Damages were obviously due not only to the prevention by defendant 1 of the passing on to his land of the rain-water but also of the irrigation water. So far as the water brought on to the plaintiff’s land by irrigation is concerned, both the lower Courts have held that the plaintiff had no such right and it follows that the plaintiff had no right to require the defendant to allow the irrigation water brought on to his land to flow on to the defendant’s land. The defendant, therefore, had a right to obstruct the flow of such water. The position then is, the damages have been found to be caused by the acts of defendant 1, partly lawful and party unlawful. It is clear having regard to the circumstances that it is not possible to allocate and find out how much of the damage that was done was caused by the prevention of the flow of the rainwater and how much by the prevention of the flow of irrigation water. As it is not possible to arrive at any such finding it would serve no useful purpose to send the case back to the lower Court for the purpose of arriving at any such finding.
6. In fact the learned vakil for the respondent conceded that it would be difficult to make any such enquiry and arrive at any satisfactory finding. In those circumstances it would follow that the plaintiff would not be entitled to any damages. But it was argued by the learned vakil for the respondent that at any rate so far as rain-water was concerned, the defendant had no right to prevent its flow and as he is found to have done that, some damages at least are liable to be awarded to the plaintiff. That would, undoubtedly be so, if the act of the defendant, having regard to the findings, be held to. Be wrong. What the plaintiff claimed was a right to pass the mingled waters, namely, the irrigation and rain-water, to go on to the land of defendant 1. On the findings he had no such right. Because the plaintiff has no such right the defendant was entitled to resist it and that is what he is found to have done. Therefore his act did not amount to a wrong, and unless the act of the defendant amounted to a wrong, the plaintiff is not entitled to any damages. The appeal will therefore be dismissed except with reference to the damages awarded to the plaintiff. The portion of the decree awarding damages to the plaintiff will be deleted. But the appeal will otherwise stand dismissed with half taxed costs.
7. As regards the memorandum of objections; a preliminary objection has been taken by the learned vakil for the appellant that the memorandum of objections has not been filed in the appeal in the lower Court in which the order made against the plaintiff was against him and that in the appeal in which the order made was in his favour he has filed the memorandum of objections and that, therefore, the memorandum does not lie. A learned argument was addressed to me with respect to this by Mr. Alladi Krishnaswami Aiyar on behalf of the respondent. But it seems to me unnecessary in this case, having regard to the view that I took on the merits, to express any opinion with regard to the same. The memorandum of objections refers to the decree refusing relief to the plaintiff in respect of the irrigation water. It was argued on behalf of the plaintiff that even in respect of irrigation water he has, apart from prescriptive right, a natural right to pass on surplus irrigation water on to the land of the defendant. It seems to me that there are difficulties in the way of any such right being regarded as a natural right. There are no doubt some observations by Sadasiva Aiyar, J., in Doraiswami Muthiriyan v. Nambiappa Muthiriyan [1918] M.W.N. 167. But Phillips, J., took a contrary view in the same case. I for my part do not see how there can be any natural right at all with respect to water brought on artificially to the land. Irrigation water is water that is brought on to the plaintiff’s land by artificial means, by human effort. There may no doubt be a right to pass on such water also. But it seems to me that such a right can only be the subject of a grant or acquired by prescription. If it is neither and it is sought to found such a right as a natural right the contention, it seems to me, cannot be accepted. The natural right with regard to the question we are considering must be regarded as a right given to the owner of land having regard to the natural configuration and situation of the land. But when the right comes to relate to something that is brought on to the land artificially it will not be correct to describe it as a natural right. No other decision has been cited to me to show that any such right was ever recognized or acted on by Courts of law. The burden of showing that the plaintiff has apart from prescription any such natural right is on him and I am not satisfied that the judgment of both the lower Courts with respect to this point was wrong. The memorandum of objections is, therefore, dismissed with costs.
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