# K. Bhimasankaram and T v. R. Tatachari, for the

- **Citation:** [1962] 1 S.C.R. 836
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. venkayy• 2 of 1958
- **Bench:** K. SuBBA. RAo, RAoHUBAR DAYAL, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-bhimasankaram-and-t-v-r-tatachari-for-the-2097
- **Pages:** 9

## Headnote

Easements-Natural right of drainage-Rights of riparian
owner -
If could impede natural flow of wat<r -
Phenomenon
happening from time immemorial-Meaning of-Indian EaS<ment
Act, I882 (5 of I882), SS. 7, II.
The respondents r and z constructed a bnnd 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 falling 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. r 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 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.
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1 S.C.R. SUPREME COURT REPORTS
837
In the present case the bund erected and the trenches dug
z96z
up by the respondents r and 2 causing stagnation of flood water
constituted a wrongful act.
Rudrayy•
v.

## Text

-<l,pril IO.
•
836
SUPREME COURT REPORTS
PATNEEDIRUDRAYYA
v.
[1962)
VELUGUBANTLA VENKAYYA AND OTHERS
(K. SuBBA. RAo, RAoHUBAR DAYAL and
J. R. MUDHOLKAR, JJ.)
Easements-Natural right of drainage-Rights of riparian
owner -
If could impede natural flow of wat<r -
Phenomenon
happening from time immemorial-Meaning of-Indian EaS<ment
Act, I882 (5 of I882), SS. 7, II.
The respondents r and z constructed a bnnd 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 falling 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. r 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 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.
' ' '
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1 S.C.R. SUPREME COURT REPORTS
837
In the present case the bund erected and the trenches dug
z96z
up by the respondents r and 2 causing stagnation of flood water
constituted a wrongful act.
Rudrayy•
v.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
venkayy•
2 of 1958.
Appeal by special leave from the jugment 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
Mudholkar ].
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 ends
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.
/
Rudrayya
v.
Venkayya
Mudholkar J.
838
SUPREME COURT REPORTS
[1962]
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 out-'
let 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 claim~ the right
of drainage of all water falling on or invading his
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
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l S.C.R. SUPREME COURT REPORTS
839
in his field and thus keep back the flood. waters of the
Vakada drain.
Bbth 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 Tnlyabhaga
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. 153to160.
(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
Rudrayya
v.
Venkayya
AI udholkar ] .
Rudrayya
v.
Venkayya
Mudholkar ].
840
SUPREME COURT REPORTS
[1962)
their rights in constructing the bunds and digging
trenches. 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 fl.ow 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 plain.tiff 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 fl.ow northwards through the cradle ·
or basin in which the suit lands are situate, when
the level of the water in Tulyabhaga is such as not
to admit the fl.ow of such water into it. It has been
customary from time immemorial for the said water,
under such circumstances, to go north wards 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 loca.l drain
Exhibit P-4, I would find that the Vakada. drain
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1 S.C.R. SUPREME COURT REPORTS
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 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
Rudrayya
v.
Venkayya
M udholkar J.
Rudrayya
v.
Venkayya
l\1udholkar .f.
842
SUPREME COURT REPORTS
[1962]
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 (i) 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 neighbour's property. Here, the dam erected
by the defendants 1 and 2 stems flood waters going
from plaintiff's 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(') 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
an 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
(I) 6th Ed., p. 191.
("2/ (1874) L.R. 10 Ex. 4.
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1 S.C.R. SUPREME COURT REPORTS
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 the common law rule appears to be the same a.s 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(').
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
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 Jaw
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.LR. 1915 P.C. 165.
(2) (1910) IO C.L.R. 560.
Rudrayya
v.
Venkayya
JI udholkar J.
z96z
Rudrayya
v.
Venkayya
Mudholkar j.
844,
SUPREME COURT REPORTS
[1962)
American faate 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 Nielu ·s case(') the only right which a
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('). We may repeat that the finding
here is that the floods from which the defendants 1
and 2 are seeking to protect th~mselves are not of an
extraordinary type. In the c';-cumstances, 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. Jo Ex. 4·
(2) M 1n1ies v. Br~adalbt1ne 1 (1828) 3 Bligh (N. S.) 414; 4 E.H .. 138].
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