MOLVI MOHAMMAD SAMI ULLAH Vs. MUKUND LAL

JUDGEMENT

(1.) In the village Lahurapur there is a pond called Bir Bundh situated in plot No. 4810. On the north of this pond's some land belonging to the village Lahurapur. On the south of this pond are some plots belonging to the village Kondari Makund Lal and Mathura Das are the owners of the village Lahurapur. Samiullah is the owner of the village Kondari. In the rainy season when the pond is over flooded a portion of the surplus water flows through a drain round the north and west of Mauza Lahurapur, and the remaining surplus water flows towards the east through an old drain situated in the village Pipnar, In order to protest their land from damage, the former owners of the village Lahurapur constructed an embankment on the north of this pond sometime prior to the last Settlement. The allegation of Samiullah was that in the mon February, 1916 the owners of the village Lahurapur raised this embankment in order to prevent the water of the pond over flowing towards their land, that the said act was wrongful and caused serious loss to a considerable area of land appertaining to the villages of Kondari and Nasirpur, which consequently became submerged of account of the flow of Water being obstructed. He accordingly sued for an injunction requiring the owners of the village Lahurapur to remove within a certain time the raised portion of the embankment and to refrain from thereafter doing anything to atop the flow of the water of Bir Bundh pond towards the north. The owners of the village Lahurapur filed a cross-claim, alleging that daring the flood of 1916 Samiullah and his tenants had wrongfully out a portion of the old embankment, situated on the north of the pond, and by so doing directed the current of the water of that pond to flow towards the culturable land lying on the north and east of Mauza Lahurapur thereby destroying the paddy crops that stood there. They consequently asked for an order directing the owner of the village Kondari to repair the embankment at his own cost and to restore it to its original condition. They further prayed for an injunction restraining him from thereafter cutting the embankment or from making any interference with it. They also claimed Rs. 1,200 as damages.

(2.) The Court of first instance found that Samiullah and his tenants had wrongfully out the embankment in order to divert the water towards the lands situated on the north of the embankment, but it was not satisfied that any damage had been caused to the crops growing on the lands situated on that side. It further found that the owners of the village Lahurapur had not raised the embankment or done anything to disturb the flow of the water in any manner, It accordingly dismissed the claim of Samiullah and decreed the claim of the owners of the village Lahurapur for an injunction requiring the owner and tenants of the village Kondari to repair the breath made by them and restraining them from thereafter cutting the embankment or interfering with it in any manner. On appeal the learned District Judge upheld the findings of the trial Court except in regard to the claim for damages, which, he found, was established to the extent of Rs. 1,050; but he gave a decree to the owners of the village Lahurapur for damages to the extent of Rs. 400 only.

(3.) The question for consideration in these appeals is whether on the facts found the owner and tenants of the village Kondari had any right to out the embankment in order to protest their own lands from the extraordinary flood which took place in the year 1916. It is admitted that the pond in question is an old one and that the embankment has been in existence from the time of the last Settlement, that is to say, from more than 40 years. It was found by the Court below that the owners of Lahurapur had done nothing to raise the height of the embankment and that if the owner of the village Kondari had not made a breach in the embankment, the damage to the paddy crops standing on the north of the embankment might possibly have been avoided. It is well established that where there is a natural outlet for a natural stream, no one has power, for the safety of his own property, to divert or to interfere with its flow, and if he does so, he is ordinarily liable to pay damages to any one who is injured by his act, no matter how the water before the mischief same into the water-course.