http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: PATNEEDI RUDRAYYA

       Vs.

RESPONDENT: VELUGUBANTLA VENKAYYA AND OTHERS

DATE OF JUDGMENT: 10/04/1961

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1961 AIR 1821            1962 SCR  (1) 836

ACT: 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, II.

HEADNOTE: 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

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 perodically. 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.

JUDGMENT: 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 the appellant. 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 below. 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  be   1580. 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 defen- dants  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

land including flood water on the basis of immemorial user. 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 time immemorial.               (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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

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 follows:               "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 beyond". 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

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  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 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 subjected periodically. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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 thereunder  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. 2591:               "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.                               Appeal allowed. (1)  (1874) L.R. 70 Ex- 4. (2)  Menzies  v. Breadalbane, (1828) 3 Bhgh (N.  S.) 414;  4 E.R.I. 387. 845

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7