Bhave, J.

1. In the Letters Patent Appeal there was difference of opinion be- tween Justice Shiv Dayal and Justice Singh who heard the apoeal. The case has, therefore, been referred to me.

2. In the village in question Khasra No. 165 is a village tank, bounded on all sides by embankments. Immediately to the southern side of this tank is situate Khasra No. 164, belonging to the defendant. In an area of 3.32 acres which is sort of a depression rain water used to collect. This portion has no embankment. The excess rain water in this area used to flow in the tank Khasra No. 165. This area of Khasra No. 164 is known as "Munda tank", not having embankments on all its sides. In the village papers it is recorded that the cultivators having their fields towards the eastern side of the tank Khasra No. 165 and the Munda tank in Khasra No. 164 have a right to use the water collected in those tanks for irrigating their fields. The natural slope in the village is from west to east, As a result of this geograhpical condition, excess rain, water from the hills, the abadi and the lands towards the western portion of Khasra Nos. 165 and 164 has a tendency to flow towards Khasra No. 164 and t