JUDGMENT

Zafar Ali, J. - The plaintiffs case was that the surplus rain-water used to drain away from their fields through the adjoining fields of the defendants, which were on a lower level, but that the defendants had recently by constructing a dam at the common boundary obstructed the flow of water through their land with the result that the water accumulated in their (plaintiffs') fields and caused damage thereto. They prayed for an injunction directing the defendants to remove the dam and restraining them from obstructing the flow of water in future.

2. The trial Court decreed the suit, but on appeal the learned District Judge dismissed it on the authority of Mahamahopadyaya Rungachiriar v. Municipal Council of Kumbakonam [1906] 29 Mad. 539 where it was held that

the right of the owner of higher laud that the water naturally rising in, or falling on, such laud, shall be allowed by the owner of adjacent lower land to run naturally thereto is not a right in the nature of an easement and is subject to the right of the owner of such lower land to build thereon.

3. But Mahamahopadyaya Rungachariar v. Municipal Council of Kumbakonam (1) was expressly overruled by a Full Bench of the Madras High Court in Hussain Sahib v. P. Subbayya A.I.R. 1926 Mad.449. The general proposition of law laid down in that case is stated thus:

An owner of land on a lower level to which surface water from adjacent land on a higher level naturally flows is not entitled to deal with his land so as to obstruct the flow of water from the higher land.

4. Mr. Bhalla, who appears for the defendants-respondents, contends that in the present case no obstruction has been proved, nor is it proved that the defendants' fields are on a lower level. This contention is not well founded. The commissary, who made a local enquiry in accordance with the order of the trial Court, found that the defendants had raised the boundary ridge so high that it obstructed the flow of water from the plaintiffs' fields into theirs. This boundary ridge should, therefore, be removed so that the water may flow on to the defendants fields as before.

5. I, therefore, accept the appeal, set aside the order of the lower appellate Court and restore that of the trial Court, granting the plaintiffs the relief that they seek. The defendants will pay the plaintiffs' costs throughout.