A landowner is liable for any damage caused to a neighbor's property as a result of alterations made to the land.

1. This is defendant's second appeal against a decree of the Additional District Judge, Nimar, Mandleshwar, dated 12-7-1951, reversing the decree of the Civil Judge, First Class, Khargone, by which the latter dismissed the plaintiffs' suit. The defendant has now come in second appeal.

2. The plaintiffs filed a suit for mandatory and permanent injunction alleging that the plaintiffs owned and possessed two sets of lands- Nos. 139, 141 and 142 on the west and Nos. 192 and 193 to the east near a Nala- in the village Pipri, Tehsil Khargone. The defendant also possessed a piece of land (Survey No. 187) lying near Nos. 192 and 193 of the plaintiffs'. Now the slope of the rain water was from plaintiffs' western lands, that is, Nos. 139, 141 and 142 towards the east over the defendant's fields- Survey No. 187- and then the water would go to join the Nala on the east side.

Near the Nala are the plaintiffs' land (Survey Nos. 192 and 193). The rain water, as stated above, would not touch these fields but from defendant's No. 187 it would pass on to the Nala. It was alleged by the plaintiff in his plaint that on the west side of the Khata of the defendant, the defendant dug the path and removed the elevated barrier and erected a new Pala (a miniature dam) thus changing the course of the flow of the rain water so that the water would flow from this Pala to the plaintiffs' eastern fields- Survey Nos. 192 and 193, and would cause damage to these fields.

The plaintiffs, therefore, prayed that the Pala should be removed, the original condition of the path and the flow of water be restored and the pits dug by the defendant on the path should also be removed. The trial Court thought that it was a suit only for restoring the original condition of the path and as it did not belong to the plaintiff's, the trial Court took the view that the suit was not maintainable, and so dismissed it.

The appellate Court reversed this finding and took the view that the erection of the Pala had caused water to flow down the plaintiff's' fields causing damage to the crops and to the fields; and, therefore, it reversed the decree and decreed the suit.

3. Now it has been found by the two Courts below that before the construction of this Pala water used to flow from the plaintiffs' fields to the defendant's No. 187 and would pass on to the Nala on the east side. The land on the path was on a higher level and by the erection of the Pala, level has been altered by the defendant and by the construction of a bund on the western boundary of his field No. 187, the natural flow of water has been diverted on to the plaintiffs' fields Nos. 192 and 193. This diversion caused damage to the plaintiffs crops sown in fields Nos. 192 and 193.

4. Mr. Pande, learned counsel for the appellant, urges that there was no cause of action to the plaintiffs as the defendant protected his own field No. 187 by erecting a Pala. In this connection, he invites my attention to para 347 at p. 223 of Clerk and Lindsell on Torts (1954 Edition) where it is observed that a landowner may lawfully erect a barrier to prevent flood water from coming on his land, although the natural consequence of his doing so is to cause more water to flow on to his neighbour's land. It makes no difference that he erects the barrier inside his boundary, leaving part of his land unprotected from the floods. If the flood waters collect on that area and subsequently discharge themselves on to his neighbour's land, he will not he liable so long us he does not actively assist their discharge nor obstruct a regular channel. Mr. Pande emphasizes the words :

"so long as he does not actively assist their discharge nor obstruct a regular channel."

In the present cane, it is obvious that a regular flow of rain water and not flood water was obstructed by the defendant for protecting his own field. And therefore, the principle enunciated in the beginning does not fully apply to the case. On the other hand, even according to this prin