LODHA, J. - (1.) THIS is a plaintiff's second appeal arising out of a suit for issuance of a perpetual injunction against the respondents directing them not to obstruct the flow of the natural and artificial water falling from the plaintiff's spouts 'ka' and 'kha' through the land marked ECD in the plan Ex. 1 annexed with the plaint. It was also prayed that the defendants Nos. 1 to 3 may be directed to remove the obstruction to the flow of the water created at the place marked 'x' in the plan.
(2.) THE houses of the plaintiff and the defendants Nos. 1 to 3 are situated opposite to each other in village Dasod, Tehsil Behror. It was alleged by the plaintiff that he had been passing natural and artificial water through the spouts marked 'ka' and Kha' from his house through the land marked ECD in front of the house of the defendants Nos. 1 to 3, for more than 20 years, and that on 18-1-1957 the defendants Nos. 1 to 3 bad diverted the flow of water towards the opposite direction by raising the level of the lane at point 'x' which they had no right to do. On these allegations the plaintiff prayed for the relief mentioned above the Sarpanch, Gram Panchayat, Dasod was also impleaded as a defendant in the case on the objection of the defendants Nos. 1 to 3. After recording the evidence produced by the parties, the learned Munsiff, Behror decreed the plaintiff's suit as prayed. Aggrieved by the judgment and decree of the learned Munsiff the defendants filed appeal which was allowed by the Civil Judge, Alwar and the plaintiff's suit was dismissed. Consequently the plaintiff has come in second appeal to this Court. Learned counsel for the appellant has urged that after a thorough discussion of the evidence led by the parties the trial Court came to the conclusion that the plaintiff had succeeded in establishing that the water from the plaintiff's house through the spouts 'ka' and 'kha' had been passing since more than 20 years through the lane marked ECD and that the defendants Nos. 1 to 3 had obstructed the flow of water through that lane by raising the level of the lane at the point marked 'x' and further that the plaintiff had acquired a natural right to the flow of water through the lane in question, but the learned Civil Judge without referring to the evidence on the record came to the conclusion that the slope of the lane over which the water from the plaintiff's spouts flows is towards the south, i e. , by the lane marked FGH. It is contended that the finding of the learned Civil Judge is based on no evidence and deserves to be set aside, and the case should be sent back to him for turning out a proper judgment after consideration of the evidence on the record. On the other hand, learned counsel for the respondents has submitted that no cause of action has been disclosed in the plaint for granting any right for flow of water to the plaintiff except one of easement. It is urged that the plaintiff has miserably failed to establish a right of easement for flow of the natural and artificial water through the spouts 'ka' and 'kha' through the lane ECD in front of the defendants' house, and, therefore, the suit was rightly dismissed by the learned Civil Judge. I may state at the outset that the learned counsel for the appellant also did not rely on any right of easement with respect to the flow of water pleaded by the plaintiff. His contention is that under sec. 7 (b) of the Indian Easements Act the plaintiff is entitled to enjoy without disturbance by the defendants the natural advantages arising from the situation of his house and since it has been established that the plaintiff's house is at a higher level and the lane in. question marked ECD is at a lower level, the water coming through the spouts from 'ka' and 'kha' must be allowed by the defendants to run naturally towards the lower level of the lane marked ECD. It is, no doubt, correct that the plaintiff has nowhere pleaded in the plaint that he claims any right regarding the flow of water from his house on account of the situation of his house, but at the same time the question of natural right for flow of water from the plaintiff's house was dealt with by the trial court without any objection from the defendants' side. Not only that, both the parties led evidence on the point as to the situation of the house of the parties, and the level of the lane towards the north marked ECD and also towards the south marked FGH. Even at the stage of first appeal no such objection was taken on behalf of the defendants. In these circumstances I do not wish to dismiss the suit solely on the ground that no natural right for flow of water arising from the situation of the plaintiff's house has been pleaded in the plaint. The question, however, arises whether the plaintiff can claim a natural right for flow of water not only in respect of rain water or natural water but also in respect of artificial water or water used for domestic purposes, or filthy water discharged from the plaintiff's house? The plaintiff does not seem to have made any distinction between two kinds of water viz. natural water and artificial water and has claimed the same right in respect of both. I called upon the learned counsel for the appellant to point out to me any law by which a natural right for flow of water arising from the situation of an immovable property could be claimed in respect of artificial water also i. e. water used for domestic purposes or filthy water. In support of his argument he relied upon Bagga Singh v. Tirath Ram (1), Jagannath v. Angad (2), and Sheik Hussain Sahib v. Subbaya (3 ). But all these authorities deal with natural water i. e. rain water coming by an undefined channel. Illustration (i) to S. 7 of the Indian Easements Act is only to the effect that every owner of upper land has a right that water naturally arising in or falling on such land and passing in defined channels shall be allowed by the owner of adjacent lower land to run naturally thereto. This illustration, in my opinion, does not support the plaintiff's contention. Such a natural right cannot be claimed for the discharge of the drain water of a house which includes not only rain water but all kinds of water used for domestic purposes and may even include sewage water. The natural right for the flow of water from a higher ground to the lower one is confined to the flow of natural water and it cannot extend to the discharge of artificial water and specially to the discharge of all kinds of water from a house. No case was cited before me where such natural right under sec. 7 of the Indian Easements Act or any other law has been recognised for the flow of such water. In this view of the matter the contention of the learned counsel for the appellant for natural flow of water so far as it refers to artificial water, that is other than natural water has no force and must be over-ruled and I accordingly do so. This brings me to the question of the plaintiff's right to the flow of natural water. The plaintiff has led evidence to show that the defendants Nos. 1 to 3 raised the level of the lane ECD at the point marked 'x' so that the water flowing through the spouts 'ka' and 'kha' from the plaintiff's house which was formerly passing through the lane ECD was diverted in the opposite direction towards the south and began to pass through the lane FGH. The learned Munsiff held this allegation of the plaintiff proved and I must say that the learned Civil Judge did not properly scrutinise this finding. The question, however arises whether it is at all necessary to remand the case to the lower appellate court for that purpose? It may be observed that the lane EGD is a public lane in front of the defendants' house. The lane FGH is also a public lane towards the west of the plaintiff's house. The only right which the plaintiff can claim for flow of natural water is that his house being on an upper land he is entitled to pass natural water on the lower land, but he cannot claim that he is entitled to pass that water on lower land in a particular direction. For aught I know, the act of the defendants in raising the level of the lane at the point 'x' in the lane EGD may not be justified and the Municipal Board or the Panchayat in whomsoever the land may vest, may have a right to compel the defendants to restore the original level of the lane, but in absence of any allegation and proof of nuisance on account of diversion of the flow of natural water from the lane ECD in the north towards the lane FGH on the south, the plaintiff cannot get any relief as he has no right to discharge of the natural water in a particular direction. For instance there would have been some thing in the plaintiff's case, if he had come with an allegation that on account of the diversion of the flow of natural water some damage was caused to his house or was likely to be caused to his house. But there is neither any such allegation much less proof. In these circumstances I am constrained to come to the conclusion that the plaintiff has failed to make out any case, and I uphold the judgment and decree of the first appellate court dismissing the plaintiff's suit though on different grounds. The result is that this appeal fails, and is hereby dismissed, but the parties are left to bear their own costs. .;