JUDGMENT V.S. Kokje, J. 1. This appeal arises out of a suit filed by the respondents against the appellants for a declaration and a mandatory permanent injunction. According to respondents/plaintiffs, they have a right to unobstructed flow of natural water from their own field which is at a higher level to that of the appellant's field, which is at a lower level situated just across a small way in between the two fields. The plaintiffs/respondents had complained that the defendants/appellant had obstructed free flow of water from the plaintiffs/respondents field to the defendants field by increasing the level of their field at the boundary by stacking debris removed from a well sunk by the appellant/defendants in their field. The defendants on the other hand took a stand that there was no right vested in plaintiffs to pass the water in his field on to the defendants field. Both the Courts below have decreed the plaintiffs' suit. This second appeal has now been filed against these concurrent Judgments and decrees. 2. The following substantial questions of law have been framed in this appeal on 2-1-1479 : "1) Whether the plaintiffs can exercise their right of drainage of rain water against the appellants even when their fields are not contiguous and are separated by a common path? 2) Whether the right of drainage of rain water can be exercised against the acts of appellants done under Section 171 of the M. P. Land Revenue Code,1959?" 3. Shri P.K. Saxena, learned counsel appeared for the appellant but none appeared on behalf of respondents at the time of final hearing of this case. Shri Saxena submitted that illustration (i) to Section 7 of the Easements Act would only apply in case of adjacent or contiguous fields and as there is a common path between the two fields of the plaintiffs and that of the defendants, it cannot be said that the two fields are adjacent or contiguous to each other. Shri Saxena submitted that illustration (i) to Section 7 of the Easements Act would only apply in case of adjacent or contiguous fields and as there is a common path between the two fields of the plaintiffs and that of the defendants, it cannot be said that the two fields are adjacent or contiguous to each other. He further submitted that in view of Section 171 of the M. P. Land Revenue Code (for short 'the Code') which declares a Bhoomiswami of the land held for the purpose of agriculture to be entitled to make any improvement thereon for the better cultivation of the land or its more convenient use for the purpose the defendants shall, be entitled to make such improvements on their land by seeing to it that their fields are not water-logged. Section 7 of the Easements Act, which forms the basis of the right claimed in the suit along with its illustration (i) is reproduced hereunder for ready reference : "7. Easements restrictive of certain rights. -- Esements are restrictions of one or other of the following rights (namely) : -- (a) Exclusive right to enjoy -- The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto. (b) Rights to advantages arising from situation -- The right of every owner of immovable property (subject to any law in force) to enjoy without disturbance by another the natural advantages arising from its situation. Illustration (i) -- The right of every owner of upper land that water naturally arising in, or falling on, such land, and not passing in defined channels, shall be allowed by the owner of adjecent lower land to run naturally thereto". 4. There should be no doubt that owner of a higher adjacent field has a right to uninterrupted flow of water to the lower field. In Gibbons v. Lenfestey and Anr.. AIR 1915 PC 165 it was observed as follows : "Where two contiguous fields belong to different proprietors one of which stands upon higher ground than the other, nature itself may be said to constitute a servitude on the inferior tenement, by which it is obliged to receive the water that falls from the superior. AIR 1915 PC 165 it was observed as follows : "Where two contiguous fields belong to different proprietors one of which stands upon higher ground than the other, nature itself may be said to constitute a servitude on the inferior tenement, by which it is obliged to receive the water that falls from the superior. If the water which would otherwise fall from the higher ground 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 reveive that body of water on his property." A Full Bench of Madras High Court in Sheik Hussain Sahab v. Pachipulusu Subbayya and Anr.. AIR 1926 Mad. 449 following and reproducing the above portion of the Privy Council Judgment further observed that the lower heritor cannot object so long as the flow whether above or below ground is due to gravitation or unless it has been unduly and unreasonably increased by operations which are in aemulationem vicini. In Kaosal Mohan Paw(sic) v. Kodu Dajiba Powar and Ors.. 1945 NLJ 452 -- AIR (33) 1946 Nag. 75 Bose, J. has observed as follows : "The rightful possessors of land on a higher level than the defendant's with a natural drainage in that direction have the right to discharge the surplus rain water which falls on their land on to the defendant's land, and the defendant is bound to accept this water. He cannot raise artificial barriers on his land which will cause the water to accumulate on another's property. He cannot do this even if it is necessary to protect his own property." 5. It is. therefore, clear from the aforesaid rulings that owner of an adjacent higher field has a right to free and uninterrupted passage of water from his field to the lower adjacent field. But the point raised by the learned counsel for the appellant is as to whether this right can be claimed even if the two fields are separated by a common path. In other words the point raised is whether the two fields could be said to be adjacent or contiguous even when a common path separates them from each other. But the point raised by the learned counsel for the appellant is as to whether this right can be claimed even if the two fields are separated by a common path. In other words the point raised is whether the two fields could be said to be adjacent or contiguous even when a common path separates them from each other. The illustration (i) to Section 7 of Easements Act uses the word adjacent and not contiguous. Prem's Judicial Dictionary Reprint 1992 states that adjacent is not a word to which a precise and uniform meaning is attached by ordinary usage. It is not confined to places adjoining, and it includes places close to, or near. What degree of proximity would justify the application of the word is entirely, a question of circumstances (see : Wellington v. Lower Hutt. 1904 A.C. 773 A ruling of the Allahabad High Court in Bhan Deo v. Emperor. AIR 1928 All. 696 has also been referred to in the dictionary for the proposition that when there is a wall separating a house from the public road, the building cannot be called as adjacent to the road. "Adjacent" must mean joined at same point. In Aiyar's Judicial Dictionary XI Edn. the word is stated to mean lying near to, contiguous. The word contiguous and contiguously situated are defined as under : -- " "CONTIGUOUS" The word 'contiguous' should be construed as in the sense of 'touching in actual contact or next in space' in reference to its loose, inexact, secondary, improper and abnormal sense and it is usually employed in that sense. Sometimes, no doubt, the word is used loosely in the sense of 'neighbouring or situated or in close proximity (though not in actual contact). But this secondary meaning should be accepted unless there is something compelling in that behalf in the abject or context." ""CONTIGUOUSLY SITUATED" The expression is used in the sense 'neighbouring, situated in close proximity though not in contact.' The expression does not mean 'touching in the actual contact'. The expression conveys that there must be sufficient proximity between the fields to enable" irrigation, flood control or drainage for purpose of cultivation to be done advantageously in the normal course by joint labour of cultivators." In Black's Law Dictionary Fifth Edn. The expression conveys that there must be sufficient proximity between the fields to enable" irrigation, flood control or drainage for purpose of cultivation to be done advantageously in the normal course by joint labour of cultivators." In Black's Law Dictionary Fifth Edn. the word Adjacent is defined as lying near or close to; sometimes, contiguous; neighbouring; Adjacent implies that the two objects are not widely separated, though they may not actually touch. In Prem's Judicial Dictionary (supra) the word 'Contiguous' means touching, and is as nearly as possible the synonym of adjoining. Therefore, where a lease reserves power to the lessor to do certain acts on any premises adjoining or contiguous that means adjoining or near to so as to give contiguous a cognate, but not identical, meaning with adjoining. (Hynes v. King. (1893)3 Ch. 439) 6. I am inclined to follow the broader meaning given to the words 'adjacent' and 'contiguous' not confining them to the sense of actual contact. The Allahabad ruling (supra) is given in criminal case and runs counter to predominant view taken in other English and Indian cases. In the present case between the two fields there is a common path. In the context of right to free flow of water, the defendants field has to be taken as adjacent to or contiguous to the field of the plaintiffs. The common path in between naturally is being used by both the parties, the plaintiffs and the defendants. If somebody else's field, howsoever small, had been situated between the two fields of the plaintiffs and the defendants, it could be said that the defendants' field was not adjacent to or contiguous to the field of plaintiffs. But that is not the situation here. There is, therefore, no force in the contention that illustration (i) to Section 7 of the Easements Act does not apply to the case. 7. The next question is as regards applicability of Section 171 of the Code. A bare reading of this section would show that it is not in derogation of rights of other persons against the Bhoomiswami. A Bhoomiswami has boon declared by this section to be entitled to make any improvement on his field for the better cultivation on it or for its more convenient use. A bare reading of this section would show that it is not in derogation of rights of other persons against the Bhoomiswami. A Bhoomiswami has boon declared by this section to be entitled to make any improvement on his field for the better cultivation on it or for its more convenient use. This does not mean that rights against such a Bhoomiswami of third parties can be defeated under cover of making the improvements on the land to which a Bhoomiswami is entitled under Section 171 of the Code. The improvements have to be made in a manner not infringing rights of owners of adjoining fields. There is, therefore, no force in the contention that right drainage or rain water cannot be exercised by the plaintiffs as against the defendants in respect of whatever is done by the defendants for improvement of their field under Section 171 of the Code. 8. This brings us to the relief which can be granted in this appeal. Shri Saxena, learned counsel for appellant submitted that even if the declaration and permanent injunction in favour of respondent is upheld, there is no case for sustaining the mandatory injunction granted by the lower Courts, in the changed circumstances of the case. According to Shri Saxena, mandatory injunction granted by the trial Court and confirmed by the first appellate Court does not deserve to be continued. The trial Court had granted a declaration that rain water falling on plaintiffs' survey No. 1043 naturally goes on the defendants' land survey Nos. 1056 and 1052. It has also granted a permanent injuction against the defendants restraining them from obstructing the flow of water from plaintiffs' land to the defendants' land. A mandatory injunction had also been granted by the trial Court directing the defendants to construct a Nala for draining the water. The portion of the decree of the lower Courts so far as demolition of water channel was stayed by an order passed in this case on 17-11-1978. The stay order was confirmed on 5-3-1979 and has remained in force till this date. Fourteen years have elapsed and the mandatory injunction has not been carried out because of the stay order from this Court. The stay order was confirmed on 5-3-1979 and has remained in force till this date. Fourteen years have elapsed and the mandatory injunction has not been carried out because of the stay order from this Court. During all these years percentage of rain fall has depleted, and it is quite likely that the volume of rain water overflowing or collecting on the fields of the parties also has gone down. In any case the respondents could do without the compliance of mandatory injunction. It would be, therefore, be proper to maintain the decree so far as the declaration and permanent injunction is concerned and to modify it by deleting the relief of mandatory injunction granted by the lower Courts. 9. In the result, the appeal is dismissed. So far as the relief of declaration and permanent injunction is concerned. The appeal is partly allowed by setting aside the mandatory injunction granted by the lower Courts. It is, however, made clear that the relief of permanent injunction enjoins upon the respondents an obligation not to obstruct in any manner flowing of rain water over the fields of the defendants from the field of the plaintiffs and the defendant/appllant are under an obligation to do all that is necessary for ensuring this unobstructed flow of rain water from the field of the plaintiffs to the field of defendants. With these directions the appeal stands disposed of. There shall be no order as to costs.