J. M. SHETH, J. ( 1 ) THIS appeal is directed against the judgment and decree passed by the learned Joint Civil Judge Senior Division Baroda dated 3rd July 1965 in Special Suit No. 35 of 1964 filed by the respondent against the appellant-State (original defendant No. 1) and defendant No. 2 Superintending Engineer Irrigation Department Baroda. The aforesaid suit was filed by the respondent for recovery of damages to the tune of Rs. 15 0 with six per cent interest and for a permanent injunction restraining the original defendant from flowing any water in the canal so as to damage the well of the respondent. ( 2 ) THE material facts shortly stated are as under : There are survey Nos. 353 354 351 430 435 and 462 in village Vasna Taluka Sankheda District Baroda owned by Joint undivided Hindu Family of the respondent and his son. Respondent is its Manager. Out of these survey numbers in survey No. 353 there is respondents well and water pump is installed in the well. There is also a flour mill run with the help of that pump. They are there from a long time. Heran Canal work was started in year 1956-57 and certain lands out of survey Nos. 353 354 and 362 were acquired. When the digging operations of the canal were going on respondent apprehended damage being done to his well on the opening of the canal. He thereupon filed Suit No. 676 of 1956. That suit came to be ultimately withdrawn on the assurance given on behalf of the State by the Engineer of the State Mr. Joshi. ( 3 ) AFTER the opening of the canal during the relevant year the respondent found that the canal water seeped (percolated) into his well and collected in it and the pump got immersed under that water and the pump could not be consequently worked and as a result of it plantation crops in the aforesaid fields could not be watered and they withered away. He was supplying water through the pipe-lines in the adjoining lands also. Immediately he had informed the authorities concerned on 11th February 1964 about the aforesaid damage but they paid no heed. He had even sent a telegram. All his requests were not listened to. He was supplying water through the pipe-lines in the adjoining lands also. Immediately he had informed the authorities concerned on 11th February 1964 about the aforesaid damage but they paid no heed. He had even sent a telegram. All his requests were not listened to. About 11 350 plants of Bananas dried up as he could not work his pump on account of the aforesaid wrongful act of the State and he suffered a loss of Rs. 15, 000. 00 In spite of the authorities being called upon to stop water percolating in the well no steps whatsoever were taken. He had therefore to give notice and had to file the present suit. According to his estimate he would have got a yield of about 1 1/2 maunds of Bananas per each plant. The rate was Rs. 3. 00 per maund and deducting Rs. 10,000. 00 as expenses he would have earned Rs. 24, 000. 00 as profits. But he had restricted his claim to the sum of Rs. 15,000. 00 ( 4 ) THE appellant-State by its written statement Ex. 17 has contended inter alia that no such assurance was given. It was not true that any damage was suffered by the respondent. It was not true that the canal water seeped into the well and caused any damage. It was not true that for want of supply of water crop withered away. Respondent could have taken the advantage of the facility of supply of water from the canal itself. . . . . . . . . . . . . . . . . . . . . . . . . [ His Lordship after analysing the facts of the case further observed. ] ( 5 ) MR. Vidyarthi has broadly urged before us that there cannot be any action at law in a case of this type. . . . . . . . . . . . . . . . . . . . . . . . [ His Lordship after analysing the facts of the case further observed. ] ( 5 ) MR. Vidyarthi has broadly urged before us that there cannot be any action at law in a case of this type. In support of his argument he has urged that it was a natural right of the State to construct a canal in its own land if such a canal is constructed by the State in exercise of its own right as an owner and water from the canal percolates in some neighbours property it is the natural act of flowing of water from one property to another and consequently even if that owner suffers any damage there is no obligation cast upon the State to prevent such damage and consequently no action for recovery of such damages can lie at law. In support of his submission he has invited our attention to a few English decision and a few Indian decisions. ( 6 ) THE first decision to which Mr. Vidyarthi has invited our attention is the decision in Wilson et al v. Waddell 1876 Volume II; Appeal Cases 95. The observations made are:"the right to work mines is a right of property which when duly exercised begets no responsibility: The owner of minerals has a right to take away the whole of them in his land according to the natural course of user. Where mineral workings have caused a subsidence of the surface and a consequent flow of rainfall into an adjacent lower coal-field the injuries being entirely from gravitation and percolation are not a valid ground for any claim of damages. Certain observations made by Lord Blackburn at page 98 are material for our purposes. They are:"but the defender altered this state of things. He worked the Ell coal carrying away the whole of it and as a necessary result the surface sank. Certain observations made by Lord Blackburn at page 98 are material for our purposes. They are:"but the defender altered this state of things. He worked the Ell coal carrying away the whole of it and as a necessary result the surface sank. At the upper part where the seam cropped out to the surface the subsidence over a space of about five acres was so great that the surface sank into sits and cracked into open fissures through which the rainfall on these five acres flowed freely down into the Defenders workings and the coal in those workings having been removed it flowed down towards the Pursuers holding. There is evidence that part of this water was removed before reaching the Pursuers but there seems no doubt that a considerable quantity of water which whilst the roof remained in its original state a water-tight roof flowed away over the surface did descend to the Pursuers mines and put them to additional expense in pumping it out. My Lords the question in the case seems to me to be whether this was demnum Basque injuria which the pursuers must protect themselves from in such way as they can or whether the Defender when working the upper part of the mine was under any obligation to the Pursuers as owners of the mine on the dip to preserve or to restore the impervious roof which whilst it existed prevented a great part of the reinfall from descending. I think it right to observe that it is not shown that any water goes down these cracks except the natural rainfall on the surface. Your Lordships have not to consider what difference it might make if the bed of a natural stream had been tapped by the Defenders operations and you have no head to form or express any opinion on the points discussed in the recent cases of Smith v. Fletcher Law Rep. 7 Ex. 305 and Crompton v. Lea Law Rep. 19 Eq. 115. "the aforesaid observations underlined by us clearly indicate that no principle of law has been enunciated in this case which supports the submission made by Mr. Vidyarthi. ( 7 ) IN Ballard v. Tomlinson 29 Chancery Division (1885) page 115 on which reliance has been placed by Mr. 7 Ex. 305 and Crompton v. Lea Law Rep. 19 Eq. 115. "the aforesaid observations underlined by us clearly indicate that no principle of law has been enunciated in this case which supports the submission made by Mr. Vidyarthi. ( 7 ) IN Ballard v. Tomlinson 29 Chancery Division (1885) page 115 on which reliance has been placed by Mr. Vidyarthi in support of his submission it is observed:"no one has a right to use his own land in such a way as to be a nuisance to his neighbour and therefore if a man puts filth or poisonous matter on his land he must take care that it does not escape so as to poison water which his neighbour has a right to use although his neighbour may have no property in such water at the time it is fouled. "the facts in that case were as under:"the plaintiff and defendant were adjoining landowners and has each a deep well on his own land the plaintiffs land being at a lower level than the defendants. The Defendant turned sewage from his house into his well and thus polluted the water that percolated underground from the Defendants to the plaintiffs land and consequently the water which came into the plaintiffs well from such percolating water when he used his well by pumping became adulterated with the sewage from the defendants well: It was held reversing the decision of Mr. Justice Pearson that the plaintiff had a right of action against the defendant for so polluting the source of supply although until the plaintiff had appropriated it he had no property in the percolating water under his land and although he appropriated 1 such water by the artificial means of pumping. "at page 118 decision in Rylands v. Fletcher Law Rep. 3 H L. 330 was referred to by the Advocate for the plaintiff. It was urged therein:". . . . . THIS decision is wholly in plaintiffs favour showing that it is the Defendants duty to prevent anything escaping from their artificial construction which may injure the plaintiff. "at page 118 decision in Rylands v. Fletcher Law Rep. 3 H L. 330 was referred to by the Advocate for the plaintiff. It was urged therein:". . . . . THIS decision is wholly in plaintiffs favour showing that it is the Defendants duty to prevent anything escaping from their artificial construction which may injure the plaintiff. "at page 120 Brett M. R. has observed:"the Defendant Tomlinson was possessed of a well upon his own property which at one time he used merely as a well but afterwards in a manner inconsistent with its being merely a well as he allowed the sewage arising from the use of his buildings to go into the shaft of such well. Now it seems to me that the shaft of that well is an artificial thing; and that the Defendants therefore collected a quantity of sewage into an artificial reservoir. The; plaintiff at a considerable distance from this well (the distance to my mind is wholly immaterial) has a well on his own property of considerable depth which is lower than the bottom of this artificial shaft or well of the Defendants. The collected sewage in the artificial shaft on the Defendants property has gone through the sides or bottom of this well into what in called the percolating water below the Defendants land. "significant observations are made at page 121. There are :". . . . I think under those circumstances he could not maintain an action because he had not appropriated the water and therefore no injury was done to him at that time. But it does not seem to me to follow from that that he cannot maintain an action when water which he has appropriated has been contaminated by something which another persons has done to that common source. In other words it seems to me that although nobody has any property in the common source yet everybody has a right to appropriate it and to appropriate it in its natural state and no one of those who have a right to appropriate it has a right to contaminate that source so as to prevent his neighbour form having the full value of his right of appropriation. "at page 123 it is observed :"let us consider what the underground water here is. "at page 123 it is observed :"let us consider what the underground water here is. Such water whether in the chalk or other state is a natural incident of the land which the man has who owns the surface unless he has parted with the minerals below. According to the decision in Chase more v. Richards 7 H. L. C. 349 the owner of the land has as a natural incident to his ownership a right to avail himself of that incident to what ever extent he chooses even though the consequence may be that he takes not only the water which at first was under his property but all the adjoining water which by natural force comes under his land when he has taken that which was there in the first instance. But here what is it the defendants are doing ? They are not using that natural right; they are not taking the water but they are putting upon their land filth which gets down into the underground water in the water-bearing stratum which is partly under their land and partly under that of their neighbour. They are therefore in no way exercising that right which a person who draws the water under his own land is exercising. All that the House of Lords decided was that if a plaintiff could not complain of a defendant exercising that natural right in taking the water which for the time being was under his own soil. But here the defendants are not doing that but are simply putting filth on their own land in such a way as that it gets into the underground water in the stratum common to themselves and other persons. In my opinion therefore it is no necessary consequence of Chase more v. Richards (Supra) to say that here the plaintiff cannot complain of the act of the Defendants. "at page 124 it is observed :". . . . . NO one can say that putting filth on your land in such a position and with such little care that it gets down to the stratum where the water is common to you and to your neighbour or to any other owner of land is a natural use of the land. In my opinion therefore subject to the other point on which Mr. In my opinion therefore subject to the other point on which Mr. Justice Person relief if the Defendants have as on the evidence they must be taken to have down by their filth interfered with the Plaintiffs natural right of taking this water they are liable to an action. . . "in the judgment of Lindley L. J. at page 126 it is observed :"if a man chooses to put filth on his own land he must take care not to let it escape on to his neighbours land. "the aforesaid observations quoted by us lend support to the conclusion that we have reached at and do not support the submission made by Mr. Vidyarthi. In the instant case we are not concerned with the States natural right about the flow of water naturally from its own land to the neighbours land. It is not a case regarding flow of water by gravitation. In the instant case we are concerned with a canal which has been constructed by the State. It is an artificial construction. It is case of artificial diverting of water. In the canal water is being brought and it is from that construction according to the plaintiff water seeps and percolates in his well and as a result of it his pump came to be immersed and consequently it could not be worked which resulted in withering away of his banana plants for want of supplying water to them for nurturing them. In such a case in our opinion the observations made in the aforesaid English decision Ballard v. Tomlinson (Supra) will have application and the plaintiff will in our opinion the entitled to bring such an action for recovery of the damages for the loss that is suffered by him on account of the wrongful act of the State. ( 8 ) MR. Vidyarthi has invited our attention to the decision of the Privy Council in Gibbons v. Leniently A. I. R. 1915 Privy Council 165. The observations made therein are:"where two contiguous fields one of which stands upon higher ground than the other belong to different proprietors nature itself may be said to constitute a servitude on an inferior tenement by which it is obliged to receive the water which falls from the superior. The observations made therein are:"where two contiguous fields one of which stands upon higher ground than the other belong to different proprietors nature itself may be said to constitute a servitude on an inferior tenement by which it is obliged to receive the water which falls from the superior. If the water which would otherwise fall from the higher grounds insensibly without hurting the inferior tenement should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it the owner of the inferior is without the positive constitution of any servitude bound to receive the body of water on his property. "it is significant to note that in terms it is further observed:"such right is not absolute but circumscribed within limits depending on circumstances of each case. For example the natural right does not extend to introducing water draining another watershed or flowing from another pipe or to caves-dropping but included water flowing to the lower proprietor after its fall from the roof of a building on the higher proprietors own ground. "at Page 167 it is observed:". . . . . NOR does the mere fact of building forfeit the right. No doubt a proprietor may not build on the extreme verge of his property and then throw water off his on to the neighbours land; that would require the constitution of a servitude which the Romans called stillicidium and English law calls eaves-drop. But if the water from the roof of a building falls on the proprietors own grounds it does no cease to be natural water but must be received by the lower proprietor as the water was received before the building was there. "this decision also has no application on the same grounds as stated in respect of other two cases earlier. ( 9 ) WE are therefore of the opinion that the learned trial Judge has rightly come to the conclusion that such an action at law was maintainable. ( 10 ) MR. Vidyarthi has submitted that this was a case of remote damage. There was no causal connection between the act of the appellant State and the withering away of respondents banana plants. He has urged that there were several intervening factors. ( 10 ) MR. Vidyarthi has submitted that this was a case of remote damage. There was no causal connection between the act of the appellant State and the withering away of respondents banana plants. He has urged that there were several intervening factors. He enumerated them in this manner: (I) immediate cause is flow of water i. e. over-flowing of water in the well; (ii) extent of pump immersed; (iii) operating of the pump thereupon stopped; and (iv) pump was to be worked for the supply of water and that water was to be supplied for nurturing of the plants. How could it be said that the defendant-State had stopped the respondent- plaintiff from watering the plants? Mr. Vidyarthi has submitted that the act of over-flowing of water i. e. percolation had nothing to do with the inability of the plaintiff to supply water to the plants. Human agency intervenes. In our opinion these arguments are not well-founded. The withering away of banana plants of the respondent was in our opinion the direct consequence of the wrongful act of the appellant-State. Causal connection is established. There was no intervening third party factor. Canal water according to the plaintiffs claim percolated into the plaintiffs well which was in the adjoining land at a short distance from the canal in question. As a result of it the plaintiffs pump which was installed there was immersed. Water was upto four feet as evidence reveals meaning thereby that the pump was immersed in a four feet deep water and consequently the pump could not be worked. There was no intervention of any human agency which was responsible for non-working of the pump. The result of the non-working of the pump was that banana plants of the respondent could not be watered and consequently they withered away. At no stage there is any intervention of any act of third party or any human agency. The learned trial judge was therefore in our opinion fully justified in reaching the conclusion that the causal connection was satisfactorily established on the evidence on record. It cannot be said that the withering away of the respondents banana plants was the remote consequence of the appellants wrongful act. It was the direct consequence and if the respondent has suffered any loss the appellant would be liable for it. ( 11 ) MR. It cannot be said that the withering away of the respondents banana plants was the remote consequence of the appellants wrongful act. It was the direct consequence and if the respondent has suffered any loss the appellant would be liable for it. ( 11 ) MR. Vidyarthi has invited our attention to the English decision in Performance Cars Ltd. v. Abraham All England Law Reports 1961 (3) page 413. That decision has absolutely no application. The facts in that case were as under:"the plaintiffs were the owners of a motor car which was damaged by a collision with a motor car driven by the defendant who admitted liability. The damage to the plaintiffs car was such as would necessitate respraying the whole of the lower part of the body of such a car. About two weeks earlier the plaintiffs car had been involved in another collision which had also made respraying of the lower part of the ear body necessary. The plaintiff obtained judgment in default against the driver responsible for the first collision but that judgment was not satisfied and at the date of the second collision the car had not been resprayed. The question for the Court was whether the plaintiffs were entitled to recover as damages from the defendant the cost of respraying the lower part of their car. It was held that the plaintiffs were not entitled to recover the cost of respray- from the defendant because that damage did not flow from his wrongful act. "it is significant to note that re-spraying of the lower part of the body of the car was the result of the first collision and that was why it was held that the plaintiffs were not entitled to recover the cost of respraying from the defendant as that damage did not flow from his wrongful act. In the instant case damage did flow from the wrongful act of the appellant State itself. In the instant case damage did flow from the wrongful act of the appellant State itself. ( 12 ) WE would like to refer to the decision of the Supreme Court is State of Punjab v. M/s. Modern Cultivators A. I. R. 1965 Supreme Court 17 wherein several English decisions have been referred to at pages 22 and 23 and the following observations have-been made in paras 16 and 17:"some special use bringing-with it increased danger to others and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community. They formed the basis of observations of Vicount Maugham in Sedleigh-Denfield v. St. Josephs Society for Foreign Mission 1940 AC 880 at p. 888. As was pointed out by Holmes in his Common Law (1963) at p. 93: it may even be very much for the public good that dangerous accumulations should be made. . . . . cases of breaks in canals resulting in danger to neighbouring lands are rare but some are to be found in law reports from the United States of America. I need not refer to them because the following passage from American Jurisprudence Vol. 9 page 340 para 38 gives an adequate summary of the principles on which they had been dealt with:"a canal company is also liable for flooding private property where it has not acquired the legal right to do so; it is answerable in damages for all loss occasioned by a neglect on its part to use reasonable care and precautions to prevent the waters of its canal from escaping there from to the injury and detriment of others. A canal proprietor is not however liable for damages to adjoining lands resulting from a mere accidental break in his canal which human foresight and vigilance could not have anticipated and against which proper prudence and judgment could not be expected to provide. Although it has been held that a canal company is not liable for damages occasioned by the precolation of waters through the bank of its canal in the absence of proof of negligence on its part in want of a skill or care in the construction and maintenance of its canal such holdings are opposed to the weight of reason and authority. "in our opinion these observations made by the Supreme Court after quoting them from the English decision render a considerable assistance to us for solving the question that has been posed before us. In the instant case we are concerned with percolation of water. It is therefore evident that ordinarily the State authorities could not have foreseen it and vigilance could not have anticipated. But in the instant case even when the digging operations were started for this canal respondent had apprehended such danger and he had to file a suit. That suit was withdrawn on the assurance given that there was no reason for keeping such apprehension and there would not be any such danger. When in February 1964 such danger was a matter of reality the plaintiff moved the authorities made an application made correspondence and even ultimately sent a telegram Ex. 40 to prevent this danger which was causing loss to him; It is therefore evident that the authorities were made aware of the danger damage which the plaintiff was suffering on account of this percolation of water. In spite of this all these requests fell on deef ears and ultimately the plaintiff-respondent suffered this damage. It is thus evident that the plaintiff has led evidence regarding the proof of negligence on the part of the State authorities. They did not take care which was expected of them and the result was that the plaintiff-respondent suffered this damage. In our opinion therefore the plaintiff-respondent is entitled to get the damages for the loss suffered by him on account of the act of the appellant-State. Orders accordingly .