S.K. Datta, J. - (1.) This is an appeal by the plaintiffs against the judgment and decree of affirmance, dismissing the suit for a permanent injunction and compensation. The case of the plaintiffs is that they are the owners of Plots Nos. 586 and 58611305 of Mouja Purba Gopinathpur Police Station Haripal in the district of Hooghly described in 'ka' schedule of the plaint. The defendants are the owners of Plots Nos. 592, 591, 588, 589 and 583 described in 'kha' schedule of the plaint, situate on the contiguous north of the plaintiffs' lands. The rain water from the defendants' lands, being on higher level, is discharged on the plaintiffs' lands and thereafter passes out towards the east through the channel 1 cubit wide (described in schedule 'ga' to the plaint) made by the plaintiffs lying throughout the northern boundary of Plot No. 1305, within their lands, running from west to east and on the remaining land the plaintiffs cultivated potatoes. On Pous 26, 1363 B.S. corresponding to January 10, 1957, there was heavy rain in the hours of night and the defendants, taking opportunity to feed their old grudge, illegally and wrongfully cut the southern wall or bund of the channel at various places, and as a result the rain water rushed and spread over the lands of the 'ka' schedule through the said cuttings thereby destroying the crop thus submerged by the water. The plaintiffs suffered loss of Rs. 400/ - as a result of such illegal acts. The plaintiffs in the circumstances filed on February 4, 1957, the Title Suit No. 31 of 1957 in the Court of First Munsiff of Chander -nagore praying for an injunction restraining the defendants from cutting the southern bund of the channel on a declaration that the defendants had no such right. The plaintiffs also prayed for a decree for Rs. 400/ - as compensation for loss of the crops.
(2.) The defendants contested the suit by filing a joint written statement. Their case is that the level of the land in the locality gradually slopes down from the north to the south and whenever water of northern Plots Nos. 576, 578, 579, 587, 591, 592 and of other lands including Plot No. 577 belonging to the plaintiff, accumulates, the owners of such plots cut their respective ails on the southern side of their plots at places and the water thereby passes off to the lands on the south till it reaches the plaintiffs' lands and then the water proceeds towards the east along the downward slope and ultimately to river Kana. The water has been flowing in this course since time immemorial and the defendants have the easement of necessity and custom for such flow of water. The defendants denied that there was any channel or bund as alleged by the plaintiffs and accordingly there was no occasion for their cutting the bund of the channel. It was further stated that the plaintiffs had constructed a temporary channel for taking water for irrigation to their lands and no water from the defendants' land ever passed through the channel. During the heavy rains mentioned by the plaintiffs, the defendants cut the common ails on the southern side between their lands and the plaintiffs' lands and the water after entering the plaintiffs' lands rapidly passed off to the eastern side. The defendants also denied that there was any potato cultivation on the 'ka' schedule lands.
(3.) The suit was tried on evidence and both parties adduced evidence in support of their respective cases. The trial court dismissed the suit on the following findings: (1) the water channel was made by the plaintiffs for taking irrigation water and the water of the defendants' lands never flowed through the channel in Plots Nos 1305 and 586, (ii) the water channel because of its narrowness was insufficient for flow of the water of the defendants' lands, (iii) there is no system in the village for passing of water through water channel (iv) there was no bund to the south of the water channel and accordingly there was no cutting of bunds by the defendants (v) the plaintiffs were raising the level of 'ka' schedule lands and their motive being to confine the flow of the water from the defendants' lands through the channel. Accordingly the trial court by its judgment and decree dated May 23, 1959, dismissed the suit.;