The judgment establishes the principle of an agriculturist's customary right to drain off water into lower lands for agricultural operations and emphasizes the appellant's natural right to discharge water into the respondent's lands by opening vents in the bund, as long as no damage is caused to the respondent.

Madhavan Nair, J.

1. Defendant 1 is the appellant. The plaintiff and defendant L are owners of adjoining lands. The plaintiffs lands lie on the north and defendant 1s lands which are on a higher level lie on the south. Along the boundary between their respective lands defendant 1 put up a bund three feet high and in two particular places in this bund ho cut openings for allowing the surplus water collecting on his lands to flow into the plaintiffs lands and thence into the Palayam channel, which lies to the north of the plaintiffs lands. It is the common case of both parties that the plaintiffs land was part of the Palayam channel until it was granted to the plaintiff in about 1905 by the Government. It has been found by the Courts below that the bund stands on defendant 1s lands and was put up by him, though the plaintiff alleged that it belonged jointly to defendant 1 and himself. The case of the plaintiff is that defendant 1 is not entitled to drain off the surplus waters of his lands into the plaintiffs lands on the north and that, in any event, he is not entitled to let them off through particular openings in the bund. He therefore instituted the suit out of which this second appeal arises for a declaration that defendant 1 is not entitled to let off the waters of his lands into the plaintiffs lands and for necessary injunctions for giving effect to that declaration. He also claimed damages of Rs 200 alleged to have been sustained by him on account of defendant 1 allowing water to flow through his lands. It may be stated here that the waters which collected on defendant 1s lands consisted not only of the rain-water but also of the water which ho was entitled to bring into his lands for cultivation purposes from the Palayam channel.

2. The District Munsif dismissed the plaintiffs suit holding that defendant 1 has a natural right to drain off the waters of his fields into the plaintiffs fields lower down under Section 7, Basements Act, and that he could do this by making openings in the bund as he had been doing so for over 60 years. On appeal the Subordinate Judge held that defendant 1 had a natural right to drain off into the lower lands of the plaintiff the rain-water as well as the water coming into his lands by ordinary agricultural operations, but he held that he had no right to let these waters into the plaintiffs lands through particular vents in the bund as according to his findings he had not established an easement right for doing so by 60 years user against the Government. He therefore gave a decree for the plaintiff to the following effect:

Defendant; 1 will be declared entitled, as a matter of natural right to drain the surplus waters collecting on his land into plaintiffs lands as they would be according to the natural situation of the fields without any bunds and not by putting up any bund or opening vents into it and an injunction will issue restraining defendants, etc. from letting the waters of the southern fields into plaintiffs land on the north through the vents.

3. The plaintiffs- claim as regards damages was dismissed by both the lower Courts.

4. In second appeal Mr. Sitarama Rao contends that the Subordinate Judge declaring defendant 1s right to drain off into the plaintiffs fields both the surplus and the artificial waters brought by agricultural operations, should have held, that he is entitled to do so by opening vents in the bunds so long as no damage is caused to the plaintiff by his procedure. The respondent argues that the appellant is entitled to let off only the natural water and not the artificial water and that this right which he has cannot be exercised by letting the water by opening vents in the bund. Section 7, 111. (1), Basements Act, states clearly that every owner of upper land has got a natural right that the water rising in or falling on such land and not passing in defined channels shall be allowed by the owner of the lower land to run naturally thereto. There can, therefore,