The right to drain off rainwater according to the lie of the land in a natural way is a natural right and is not restricted by any limitation under Section 26 of the Indian Limitation Act.

( 1 ) THE respondent-plaintiff filed a suit for declaration of the easementary right of the plaintiff to let off rain water discharged from the western plots A and A-1 towards east across the plots B and B-1 belonging to the defendants and for the issue of a mandatory injunction directing the defendants to remove the elevated portion CD as per plaint plan. It was contended that water used to flow in the natural way since a very long time from A, A-1 plots to B, B-1 plots towards east into the poramboke land. The lie of the land is from west to east and south to north. It was alleged that the defendants dug up two wells and dug channels also. The earth so removed was placed along the ridge CD thereby preventing the water from A, A-1 plots to flow into B, B-1 plots with the result that the water was stagnating and causing damage to the lands of the plaintiff.

( 2 ) THE contention of the 1st defendant, who is the appellant before me, was that the lie of the land is not from west to east, that the water never flowed in the way in which it is alleged by the plaintiff and that the plaintiff never exercised any easementary right. The CD ridge is an old ridge. The rainwater according to the 1st defendant flows from south-north upto the point of J and takes a turn towards east and flows into the 2nd defendants land. The said defendant admits that he dug a well about three years back and irrigated his lands, He also said that the plaintiff has not exercised the right within two years prior to the suit and as such the suit would be time-barred.

( 3 ) I am not concerned with the defence set up by the 2nd defendant as nothing turns upon that. The trial Court after recording the evidence of the parties upheld the contention of the plaintiff and decreed his suit. The matter was then carried in appeal but the 1st defendant was not successful.

( 4 ) THE principal contention of the learned counsel for the appellant is that the ridge was in existence even according to the plaintiffs deposition, in 1950 and since the plaintiff stood by and never objected to it till the date of the suit, the defendant would be deemed to have acquired a right of resisting the flow of water and thus the plaintiffs right, if there be any, would be deemed to have extinguished. Reliance is placed in this connection on S. 44 of the Indian Easements Act and on the following two cases: -- Natabar Sasmal v. Krishna Chandra, AIR 1942 Cal 261 and U Po Thet v. A. L. S. P. P. L. Chettyar Firm, AIR Rang 282. I do not find any force in this contention. Section 44 of the Easements Act has no application to the facts of the present case. That section relates to the extinction of easementary right because of permanent alteration of servant heritage by superior force. It is not the defendants case that the ridge channel and the wells were brought into existence by any superior force. The 1st defendant, in any case, who raised the bund and channel cannot be a superior force. Section 44 of the Act, therefore, has no relevance.

( 5 ) FAR from helping the defendant, the 2nd case of the Rangoon High Court relied upon by the learned counsel for the appellant distinctly does him dis-service. In that case, in order to destroy a natural right of the plaintiff to throw off the water in the natural way, the defendant most successfully set up a counter easementary right to resist and throw back the water coming from the plaintiffs land. It is plain that such a counter easementary right can be acquired only in the manner in which other easementary rights are acquired; that is to say, by its continuous unobstructed exercise of 20 years and two more years prior to the suit. That was not the case of the defendant. The defendant cannot acquire that right within 8 years. Since the defendant has not acquired any easementary right to resist the natural flow of water and throw it back, I do not find any substance in that contention.

( 6 ) THE other case of the Calcutta High Court is not