Patneedi Rudrayya Vs. Velugubantla
Venkayya & Ors  INSC 148 (10 April 1961)
10/04/1961 MUDHOLKAR, J.R.
CITATION: 1961 AIR 1821 1962 SCR (1) 836
Easements--Natural right of drainage--Rights
of riparian owner-If could impede natural flow of water--Phenomenon happening
from time immemorial--Meaning of--Indian Easement Act, 1882 (5 of 1882), ss. 7,
The respondents 1 and 2 constructed a bund on
their own land and dug trenches with a view to protect their lands from being
inundated by the flood waters of the Vakada drain; as a result of that, the
flood water flowing from appellant's field in the Northerly direction could not
find an outlet and stagnated on his land thus doing damage to his crops.
The appellant based the right of drainage in
the Northerly direction of all water falling on or invading his land including
flood water on immemorial user, and not on the natural right of the owner of
higher land to drain-off water failing on his land on to lower lands. The
Courts below found inter alia that the inundation of the appellant's land was
not unusual, abnormal or occasional but was. an event which occurred every year
in the usual course of nature, and was a happening from time immemorial. The
High Court came to the conclusion that the flooding of the fields was not an
event recurring periodically from time immemorial but something unusual and
that water being a common enemy of all, the defendants Nos. 1 and 2 were within
their rights in constructing the bunds and digging the trenches. The point was
whether a person had right to create an impediment in the flow of water along
its natural direction.
Held, that a 'phenomenon' can be said to have
been happening from time immemorial if the date when it first occurred was not
within the memory of a man or was shrouded in the mist of antiquity. Where the
court upon the evidence available was unable to fix the precise year of
commencement of the phenomenon, the proper inference would be that the
phenomenon had been known to occur from time immemorial.
Held, further, that the only right the
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. When 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 would make little difference that the water
happened to be not merely rain water, but flood water provided the flood water
was of a kind to which higher land was subjected periodically.
837 In the present case the bund erected and
the trenches dug up by the respondents 1 and 2 causing stagnation of flood
water constituted a wrongful act.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2 of 1958.
Appeal by special leave from the judgment and
decree dated December 18, 1953, of the Madras High Court in Second Appeal No.
24 of 1949.
K. Bhimasankaram and T. V. R. Tatachari, for
K. R. Choudhri, for respondents Nos. 1 and 2.
1961. April 10. The Judgment of the Court was
delivered by MUDHOLKAR, J.-This is an appeal by special leave from the judgment
of the Madras High Court in a second appeal reversing the decrees of the two courts
The plaintiff who is the appellant before us
is the owner of survey no. 159 of the village Vemulavada while defendants 1 and
2 are owners of survey no. 158 lying to the north of survey no. 159 and
adjoining. The defendant no. 3 is the owner of a field lying to the north of
survey no. 158. To the south. of survey no. 159 is survey no. 160 belonging to
the brother of the plaintiff. Immediately beyond this field and to the south
are a "parallel drain", into which flow the waters of the Vakada drain,
and Tulyabhaga drain both running west to east. It would appear that the
parallel drain is an artificial drain while the Tulyabhaga is a natural drain.
The parallel drain end,% abruptly at the eastern end of survey no. 150 at a
distance of about two furlongs or so to the east of survey no. 160.
According to the plaintiff rain water falling
on survey nos.
160 and 159 flows in the northern direction
over survey no.
158 and then enters into a drain shown in the
map and indicated by the letters EE. In normal times the water in this drain
flows towards the south and empties itself in the Tulyabhaga drain.
838 Sometime before the institution of the
suit the defendants 1 and 2 constructed a bund running approximately east-west
on their own land. Its height, according to the Commissioner, varies between 3
and 8 and its width is about 16'. Its length is reported by the Commissioner to
Apparently the bund is not a continuous one
and there are a few gaps in it. About 5 to the south of the bund the defendants
had dug several trenches 15' in width and between 2' and 4' in depth. These
trenches run along a foot-path which separates the fields of the parties. The
plaintiff's grievance is that as a result of what the defendants 1 and 2 have
done flood water flowing from his field in the northerly direction cannot find
an outlet and stagnates on his land thus doing damage to his crops. Further,
according to him as a result of the digging of the pits the level of his land
adjoining the footpath is gradually decreasing with the result that the top
soil of his field is being washed away. He, therefore, sought a mandatory
injunction directing the defendants to fill up the trenches and demolish the
bunds raised by them. The plaintiff claims the right of drainage of all water
falling on or invading his land including flood water on the basis of
The defence of the first two defendants was
that the land actually slopes from north to south, that rain water and flood
water naturally flow from the north to the south and that the plaintiff's
grievance is wholly imaginary. They deny the existence of immemorial user upon
which the plaintiff rested his case. They admitted that flood waters do
stagnate on the plaintiff's land. This, according to them, was a result of the
closing of some vents in the Vakada drain by the ryots of that village as a
result of which the water collected in that drain during heavy rains cannot
find its natural outlet and floods the lands of a number of people including
the plaintiff's. The bund erected by the defendants was, according to them to
protect their lands from being inundated by the flood waters of the Vakada
drain and that it was open to the plaintiff to do likewise by constructing dams
at appropriate places 839 in his field and thus keep back the flood waters of
the Vakada drain.
Both the courts below arrived at the
following findings of fact:
(1) The land dips in the northerly direction.
(2) That a number of fields including fields
nos. 158, 159 and 160 lie in a sort of a basin with elevations along the
eastern and western boundaries into which drainage and rain water from all
sides tends to accumulate.
(3) Ordinarily the surplus water from lands
adjacent to the basin as well as rain-water falling on the land in the basin is
drained off from north and then finds its way in the drainage channel EE which
runs north-south and drains it into the Tulyabhaga drain.
(4) Whenever due to heavy rain Tulyabhaga
drain is in spate the flood water which collects in the basin cannot flow
through the channel EE and flows in the northerly direction towards another
channel called Kongodu channel and that this is what has been happening from
(5) Whenever there is heavy rain the Vakada
drain swells up and water therefrom floods survey Nos. 153 to 160.
(6) That this has, been happening since time
immemorial and that the defendant's contention that this is because of
something done in recent times is not correct.
(7) That the inundation of the appellant's
land in the further flow of water northwards is not unusual, abnormal or
occasional due to extraordinary floods but is an event which occurs every year
in the usual course of nature.
The High Court, however, came to the
conclusion that the flooding of fields Nos. 153 to 160 because of the swelling
of the Vakada drain is not something which has been happening from time
immemorial but only subsequent to the year 1924, that the flooding of these
lands was not a usual and natural phenomenon but something unusual and that
water being a common enemy of all, the defendants 1 and 2 were within 840 their
rights in constructing the bunds and digging trenches.
According to the High Court the plaintiff had
no right to prevent the defendants from taking the steps that they are taking
and that a custom to allow flood water to flow over the neighbour's land has
not been so far established.
We may mention here that the High Court had
actually called for certain additional findings from the appellate court and
one of the questions raised was whether there was an immemorial user as
contended by the plaintiff to let out Vakada drainage water beyond certain
points. In coming to the conclusion that the plaintiff has not been able to
establish immemorial user in respect of the right claimed by him of draining of
flood waters from his field on to the defendants the High Court has ignored the
clear finding of the lower appellate court on this point. We find that there is
no justification for the course adopted by the High Court.
In para 17 of its judgment it has observed as
"It is well established on the evidence
that from time immemorial flood water, as well as the surplus water, and the
water from Vakada and Vemulavada, all collect and flow northwards through the
cradle or basin in which the suit lands are situate, when the level of the
water in Tulyabbaga is such as not to admit the flow of such water into it.
It has been customary from time immemorial
for the said water, under such circumstances, to go northwards from the
plaintiff's fields onwards over the defendants' fields, and the further fields
After remand the lower appellate court
reiterated its conclusion and observed as follows in para 14 of its findings:
"On the evidence on record and for the
reasons I have given above I am of opinion that the oral evidence either way is
inadequate, but on such little, evidence as available and on the probabilities
of the case and relying upon the evidence of P. W. 4 and the clear indication
of the existence of local drain Exhibit P-4, I would find that the Vakada drain
841 water should have been getting into parallel drain and through EE and F
into Tulyabhaga drain for a considerably long period of time, at least from
somewhere about the year 1920".
Earlier in its order the lower appellate
court has observed:
"In my opinion the parallel drain should
have existed at least from the year 1924, if not many years before that".
It would thus be clear that even in the
revised finding the appellate court has not been able to fix the precise year
of commencement of the phenomenon. It would, therefore, follow that upon the
evidence available in this case the proper inference to be drawn would be that
this phenomenon has been known from time immemorial. A phenomenon is said to be
happening from time immemorial when the date of its commencement is not within
the memory of man or the date of its commencement is shrouded in the mists of
antiquity. No doubt the lower appellate court has referred to the years 1920
and 1924 in its finding but it has not said that the phenomenon was observed
for, the first time in 1924 or even in 1920 It has made it quite clear that the
phenomenon was known to be happening in these years and that it must have been
happening for many years prior to that.
The basis of the plaintiff's claim is not the
natural right of the owner of higher land to drain off water falling on his
land on to lower lands but the basis is that this right was being exercised
with respect to the land of the defendants 1 and 2 from time immemorial. The
finding of fact of the lower appellate court being in his favour on this point
his suit must succeed.
The High Court, following certain English
decisions, came to the conclusion that water being the common enemy, every
owner of land had a right to protect himself against it and in particular to
protect himself from the ravages of such unusual phenomenon as floods. Some of
the cases upon which the High Court. has relied deal with the rights of
riparian owners and are thus not strictly appropriate.
106 842 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 (1) to s. 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 on Waters and Land Drainage (1) and a
passage from the judgment in Nield v. London & North Western Railway (2) 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 neighbor's property. Here, the dam erected by the defendants 1 and 2 stems
flood waters going from plaintiffs 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 (2) 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 anyone 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 ail 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 (1) 6th Ed., p. 191.
(2) (1874) L.R. TO Ex 4.
843 happens to be not merely rain water but
flood water provided the flood is of the kind to which the higher land is
In England the early extension of the common
drains all over the country under the supervision of the Commissioners of
Sewers has rendered a discussion on the rights of flow of surface water
needless and, therefore, there are no modern decisions upon the question. But
old precedents show that the common law rule appears to be the same as that
under civil law. In a case arising in Guernsey (1) the Privy Council has
applied the rule of civil law to that island.
That this is adopted by the common law would
appear from the decision in Nelson v. Walker (2).
The rule of civil law according to Domat is
quoted thus at p. 2586 of Waters and Water Rights, Vol. III, by Farnham:
"If waters have their course regulated
from one ground to another, whether it be the nature of the place, or by some
regulation, or by a title, or by an in ancient possession, the proprietors of
the said grounds cannot innovate anything as to the ancient course of the
water. Thus, he who has the upper grounds cannot change the course of the
waters, either by turning it some other way, or rendering it more rapid, or
making any other change in it to the prejudice of the owner of the lower
grounds........... " The learned author, after a discussion of old English
cases on the point, has stated that the common law regarded the flow of rain
water along natural courses as one of its doctrines and that there is no
general right there under to fight surface water as a common enemy. The author
has then observed:
"All rightful acts with regard to it are
confined within very narrow limits which have not yet been fully defined. And
to state generally that such water is a common enemy, or that there is a right
to fight it at common law, cannot be otherwise than misleading". (p. 2590).
After discussing a number of precedents from
the (1) Gibbons v. Lenfestey A.K.I.R. 1915 P.C. 165.
(2) (1910) 10 C.L.R. 560.
844 American State Courts he has pointed out
that the common enemy doctrine is of very recent origin he has observed at p.
"That surface water is not a common
enemy, and that there is no right to fight it according to the pleasure of the
landowner, clearly appear from the principles which have already been
stated." We must, therefore, distinguish between cases pertaining to
riparian lands and cases like the present. But as pointed out in Niela's case
(1) the only right which a riparian owner may have is to protect himself
against extraordinary floods. But even then Jae would not be entitled to impede
the flow of the stream &long its natural course (2). 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. For these reasons we allow the appeal, set aside the judgment
of the High Court and restore that of the subordinate judge. The costs
throughout will be borne by the defendants respondents.
(1) (1874) L.R. 70 Ex4.
(2) Menzies v. Breadalbane, (1828) 3 Bhgh (N.
S.) 414; 4 E.R.I. 387.