- (1.) 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.
(2.) 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 ends abruptly at the eastern end of survey No. 150 (sic) at a distance of about two furlongs or so to the east of survey No. 160.
(3.) 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. 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 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 immemorial user.;