JAGAT NARAYAN, J—This is an appeal by the defendants against an order of the appellate court passed under Order 41 Rule 23 C.P.C. remanding. The suit for disposal on merits. The suit was dismissed by the trial court on a preliminary point

2. Ramji Lal is a tenant of Khasra No. 10 situated in village Sanwlod. Chandgi Ram defendant No. 1 is a tenant of Khasra No. 25 and Sukha and Baldeo defendants Nos. 2 and 3 are tenants of Khasra No. 12. The plaintiff claims that he has a right of access to his field through Khasra No. 25 and along the mendh of Khasra No. 12. He has brought the present suit for a declaration of his right of passage and for a permanent injunction restraining the defendants from interfering with it. The suit was contested by the defendants inter alia on the ground that the plaintiff and they being tenants of a common landlord namely the State, the plaintiff could not acquire any right of easement over their tenancy lands for the beneficial enjoyment of his land in view of the provisions of Sec. 12 Elements Act (hereinafter referred to as the Act). This contention was accepted by the trial court which dismissed the suit on this preliminary ground. On appeal the learned District Judge set aside the decision of the trial court following the decision of a learned Single Judge of the Madras High Court in Nagarentha Mudaliar V. Sami Pillai(1). That suit was brought for a declaration that the plaintiff was entitled to discharge not only the rain water but also the water utilised for irrigation purposes brought on to his land from adjoining channel into the land of defendant No. 1 and for an injunction restraining defendant No. 1 from causing obstruction to the flow. The geographical configuration of the lands of plaintiff and of the surrounding lands was such that the lands of the plaintiff could not drain themselves in any other manner. The plaintiff and defendant No.1 were however tenants of the same landlord. The learned Judge upheld the right of the plaintiff. So far as the right to discharge rain water was concerned it was a natural right inherent in property as shown by Illustration (1) to Sec. 7 of the Act. The question of discharging water received from the irrigation channel presented some difficulty. The learned Judge referred to the decision in Ramasami Vs. Rasi (2) in which the following passage from Kerr on Injunctions was cited to show the extent of the right as understood in English Law:

"The owner of land lying on a lower level is subject to the burden of receiving water which drains naturally or in the course of ordinary agricultural operations, such as by deep ploughing, from land on a higher level."

3. Then the learned Judge referred to decision in Doraiswami Muttirion Vs. Mattachi (3) in which Sadasiva Iyer J. who was inclined to extend the right even to water brought on to land for irrigation purposes observed :—

"I think also that even if the water that is brought according to the custom and usages of the country along irrigation channels upon the land, the right to pass it on to a land of a lower level may be spoken of as a natural right without much violence to language."

4. The learned Judge also referred to the decision in Kasia Pillai Vs. Kumaraswami Pillai (4) in which Madhavan Nair J. laid down:—

"It appears to us that in India, the right of an agriculturist to drain off into the lower lands the water brought into his land for ordinary agricultural operations is a customary tight. He is entitled to do so by custom; otherwise, it will be impossible to carry on agricultural operations successfully."

5. The learned Judge felt some difficulty in applying the above principle to the case before him as custom had not been pleaded and relying on some English decisions he held as follows:—

"In my opinion the principle applied by Bankes, L.J. to the case of a copyhold can legitimately be applied to the case of a ryotwari proprietor. Though copyhold is not a freehold Bankes, L.J. stated in Derry Vs. Sunders (

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