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1911 DIGILAW 155 (ALL)

Baldeo Singh v. Jugal Kishore

1911-05-03

body1911
JUDGMENT Chamier, J. - This was a suit by the appellants to have a bandh removed which had been built by the respondents, for a perpetual injunction restraining the respondents from building a bandh at the place in question, and for damages. 2. South of the villages of the parties is some high ground, the drainage from which passes first by several natural channels through four of the appellants' villages. From a point north of the appellants' village Sarkohi, the drainage passes on in one natural channel to the appellants' village Dobri. Further north again this channel branches out into channels, one running cast to the place where the bandh in question has been erected at a point marked "T" in the map and the other running north and ultimately falling into the Garhai nadi. The latter channel for a part of its course is known as the Deosia channel or drain, and it seems that an arm runs out of it eastward and joins the other channels somewhere near the point "T" which is in the respondents' village. The appellants say that the respondents in Katik 1312 Fasli, built a new bandh at "T," which so blocked the natural drainage as to cause the appellants' village Dobri to be inundated. The respondents' case was that the bandh in question is an old bandh, that the drainage passes away from the appellants' villages through the Deosia channel; that the appellants have blocked up this channel, thereby interfering with the natural drainage, and that the respondents have caused no damage to the appellants. 3. The findings of the first court are clear enough. It finds that the bandh in question is an old one and caused no damage to the appellants' land; that the appellants blocked up the Deosia drain and have themselves to thank for the inundation of their fields. 4. On appeal the District Judge said:--"If any inundation of the Dobri lands did take place, it must have been due as much to the blocking up of the Deosia drain either by sitting up or artificial means. 4. On appeal the District Judge said:--"If any inundation of the Dobri lands did take place, it must have been due as much to the blocking up of the Deosia drain either by sitting up or artificial means. As to the existence of the bandh at 'T', I am of opinion, therefore, that it is not satisfactorily proved that the inundation of the plaintiffs' lands was caused solely by the bandh at 'T', and therefore the defendants are not responsible for any loss which may have been suffered by the plaintiffs, apart from the fact (sic) whether the bandh in dispute was old or new." 5. Later on he says:--"I am therefore of opinion that the bandh in dispute is not proved to be an entirely new construction, and supposing it to be new, it is not proved that the-inundation of the plaintiffs' lands was duo entirely to the existence of the bandh in dispute." 6. The words "either by silting up" in the first finding rob it of any value that it might otherwise have possessed. We asked counsel for the respondents whether he could produce any authority for the proposition that the appellants are bound to keep the Deosia channel clear. He was unable to do so. What is called the Deosia channel is a natural not an artificial channel and I know of no authority for the proposition that the owner of land through which a river or other natural channel flows is bound to clear it out from time to time so that the amount of water that can pass down it may not be diminished. Such an owner is bound within certain limits as between himself and other riparian owners not to do anything which shall obstruct the flow of the water or materially interfere with their rights. If from natural causes a river or channel passing through A's land silts up, with the result that more water is thrown into another river or channel running through B's land, and B blocks the river or channel on his land so as to throw the water back on to and flood A's land, A cannot be held to have contributed to this result, if all that can be said of him is that he has not kept the river or channel on his land clear. A is not responsible for the silting up of the channel on his land. If after the river or channel flowing through A's land has silted up, B blocks up the river or channel flowing through his land with the result that A's land is inundated, the result must be regarded as being duo to B's action alone and B is prima facie liable for the consequences, though he may show that he has acquired a right to block up the channel partly. In my opinion, therefore, the first finding of the District Judge does not enable us to dispose of this appeal. There should also be a fresh finding on the question whether the bandh is new or old. I would remit the case to the lower appellate court for fresh findings upon the second and third issues framed by the first court. Karamat Husain, J. I agree. 8. By the Court:--The order of the court is that the case be remitted to the lower appellate court for fresh findings upon the second and third issues framed by the first court. Ten days will be allowed for objections on return of the finding. 9. The lower appellate court will take such additional evidence as the parties may adduce.