SEN, J.

(1) THE present second appeal arises out of a suit for declaration of title to the land in dispute, locally known as pagar and for possession. The principal defendant is the appellant before us. The appeal is directed against the judgment and decree dated 23, 1957, passed by the Subordinate Judge, Birbhum, in Title Appeal No. 195 of 1955 affirming, subject to modification, the judgment and decree dated May 14, 1955, passed by the Munsif, First Court, Bolpur, in Title Suit No. 28 of 1955.

(2) THE suit out of which the present appeal arises was instituted by three sebaits of certain deities on March 25, 1953. The suit was one for declaration of the plaintiffs' title to the land measuring 5 cottas described in sch. kha to the plaint and to the land measuring 1 cotta described in sch. ga to the plaint, for confirmation of their possession of kha schedule land, for permanent injunction restraining the Defendant Nos. 1 to 4 from dispossessing the plaintiffs from the kha schedule land, for recovery of possession of the ga schedule land by evicting Defendant Nos. 1 to 4, for an order directing Defendant Nos. 1 to 4 to fill up the ga schedule land or to pay Rs. 75 to the plaintiffs for that purpose and also for a permanent injunction restraining Defendant Nos. 1 to 4 from making any cut or from discharging the water on C. S. Plot No. 750 towards the north. Schedule ka to the plaint comprises C. S. Plot Nos. 683 and 684 together with the lands mentioned in kha and ga schedules to the plaint. The dispute relates to the lands mentioned in schs. kha and ga.

(3) TO the contiguous south of the C. S. Plot Nos. 683 and 684 is the C. S. Plot No. 750. The principal Defendant Nos. 1 to 4 are in occupation of the northern portion of plot No. 750 and the proforma defendants are in occupation of the southern portion of the plot. To the west of C. S. Plot Nos. 750 and 683 there is a sort of a streamlet locally known as kandar. The lands of schs. kha and ga are locally known as pagar. Besides the question of title to the pagar another important question involved in the suit was the defendants' right to discharge surplus water of plot No. 750 towards the north over the pagar on to the lands of the plaintiffs. The suit was decreed in part and the learned Munsif passed the following order: ordered that the suit be decreed on contest in part against the Defendant Nos. 1 to 4 and ex parte against the rest. Plaintiffs' title to the suit land, as shown by the Commissioner to be appertaining to C. S. Plot Nos. 683, 684, is declared. They do got possession of the ga schedule land, appertaining to C. S. Plot Nos. 683 and 684. Their possession in respect of the rest of the disputed land is confirmed. Plaintiffs' prayer for a direction upon the defendants to fill up ga schedule land is refused. The prayer for injunction is refused. Plaintiffs' title is found to be subject to defendant's right to draining out surplus water through the disputed pagar. Commissioner's map and report shall from part of the decree.

(4) THE plaintiffs preferred an appeal to the lower appellate Court. They contended before the lower appellate Court that the defendants failed to establish their natural right of discharging water from C. S. plot No. 750 on to the lands of the plaintiffs, that even if there was any such right that right had been abandoned and that the learned Munsif was not justified in refusing the plaintiffs' prayer for direction on the defendants to fill up the ga schedule land and the prayer for injunction. The Defendant No. 1 filed a cross-objection mainly on the question of title. He also contended that the suit was not maintainable at the instance of the plaintiffs.

(5) THE lower appellate Court considered three points, namely, (i) whether the plaintiffs were competent to sue, (ii) whether the disputed lands appertained to the C. S. plot Nos. 683 and 684 and (iii) whether the defendants had the natural right of discharging the surplus surface water of C. S. Plot No. 750 by making a cut in the pagar.

(6) THE lower appellate Court affirmed thejd and decree of the learned Munsif subject to modification. The appeal and the cross-objection were dismissed subject to such modification. The judgment of the learned Munsif was modified by saying that the defendants have the natural right of discharging surplus surface water on to C. S. Plot No. 750 to the C. S. Plot Nos. 683 and 684, but that they have no right to make an opening or cut across the pagar in question.

(7) THE present appeal has been preferred by the Defendant No. 1 who filed the cross-objection before the lower appellate Court. He is primarily aggrieved by the declaration of the lower appellate Court tht the defendants have no right to make an opening or cut on the pagar in question for discharging water from Plot No. 750 to plot Nos. 683 and 684. No cross-objection has been filed on behalf of the plaintiffs. Therefore, the plaintiffs cannot dispute the natural right of the defendants to discharge the surplus water from plot No. 750 to plot Nos. 683 and 684.

(8) MR. Lala appearing on behalf of the appellant contends that the natural right of the defendants to discharge surplus water from plot No. 750 to plot Nos. 683 and 684 carried with the right to cut a channel through the pagar to facilitate the passage of water.

(9) IT is necessary to state certain facts before deciding the point raised by Mr. Lala. The level of C. S. plot No. 750 belonging to the defendants, which is to the south, is higher than the level of C. S. plot No. 683 and 684 belonging to the plaintiffs, which are to the north. It appears from the report of the Commissioner for local inspection that generally speaking the level of plot No. 750 is higher than the level of plot Nos. 683 and 684, but that the surface of the disputed pagar, that is to say, the lands comprised in schs. kha and ga to the plaint, is higher than the surface of C. S. Plot No. 750 about 2 ft. and higher than the surface of the three kittas (sup-plots) appertaining to C. S. plot Nos. 683 and 684 by about 45 ins. , 27 ins, and 15 ins. Respectively. The configuration of the land comprised of plot No. 750 to the south and plot Nos. 683 and 684 to the north is such that the excess water from C. S. plot No. 750 tends to flow towards C. S. plot Nos. 683 and 684 in spite of the pagar intervening between plot No. 750 on the one hand and plot Nos. 683 and 684 on the other. The pagar is not so high as to obstruct the flow of surplus water from plot No. 750 to plot Nos. 683 and 684. It is not the case of the defendants that the level of the pagar has been artificially raised by throwing earth on it. As the pagar is situated to the immediate north of plot No. 750, excess water cannot flow out from plot No. 750 until the level of the accumulated water surpasses the level of the pagar. Consequently, the excess water cannot pass out from plot No. 750 as soon as it enters that plot. It will accumulate for some time before it can pass out, because the surface of the pagar is at a higher level than the surface of plot No. 750 and the process of accumulation may go on for sometimes before the water can overflow the pagar. Mr. Lala suggests that if the excess water is allowed to accumulate for sometime before it can pass out, the standing crop is sure to be destroyed and the cultivation of the field may suffer. He contends that the defendants will not derive any benefit from their natural right of discharging water from their land on to the land of the plaintiffs if they are to wait till the water level rises above the surface of the pagar, and hence that will be a negation of their natural right. He, therefore, suggests that the natural right of discharging water in the present case implies the right to make a cut across the pagar so that water may pass out as soon as it enters plot No. 750.

(10) MR. Banerjee appearing on behalf of the plaintiffs-respondents contends that the natural right of discharging water is something different from similar right based on prescription or grant. The right to discharge water along a defined channel, says he, may be acquired either by prescription or by grant, but that is never an incident of the natural right.

(11) LET us consider the respective merits of these rival contentions Mr. Lala referred us to the case of (1) Ramadhin Singh v. Jadunandan Singh, (1914) 19 CWN 54, decided by a Division Bench of our High Court. There the plaintiffs brought a suit for declaration that the surplus rain water of the plaintiff's takta (land) passed through the defendants' takta and for removal of the bund raised to stop the flow of water and for damage. The Munsif decreed the plaintiff's suit in the following terms: that the plaintiffs' right to drain off surplus rain water of their takta through the defendants' patti is declared. . . . . . That the defendants do remove within one month. . . . the bounds at the points marked 'd' and 's' in the Amin's map to the extent of 2 cubits in each point. The decision was affirmed on appeal by the Subordinate Judge. On second appeal the High Court modified the decree of the Courts below in the following terms: the lower Courts have ordered the defendants to remove the bund which they have created. It is not necessary in order to satisfy the plaintiffs' claim that this should done, but it will be sufficient if the defendants make some arrangement by which the water coming on to their land from the plaintiffs' land may pass over their land in such a way as not to remain on the plaintiffs' land. So far the appeal is allowed. In discussing the nature of the right claimed by the plaintiffs their Lordships observed as follows: the plaintiffs allege that they are entitled to have the water on their land discharged through the defendants' land, but they do not claim it as an easement. They claim it as a right ancillary to their property which they have not parted with. This raises a question in a very simple form, namely, whether there is any such right. On the authorities placed before us, we are of opinion that there is, although the plaintiffs do not claim the right to discharge their water and do not in fact discharge their water on to the defendants' land by any definite channel, the duty of the defendants is to allow the water from the plaintiffs' land to pass on through their land. It is then open to them to dispose of it in the way they think best.

(12) THE plaintiffs in that case did not claim the right to discharge their water on to the defendants' land by any definite channel. They merely asked for the removal of the bund artificially raised by the defendants to obstruct the flow of water. The Courts below gave direction for removal of the bund at two points, but that direction was set aside by the High Court. The direction given by the Courts below had the effect of giving the plaintiffs the right to discharge their surplus water along two definite channels. It is for this reason that the High Court set aside this direction of the Courts below, as in the opinion of the High Court, the plaintiffs did not claim the right to discharge their water by any definite channel. Their Lordships in substance held that the natural right of discharging water does not involve the right to discharge through any definite channel. This case is really against the appellant. Mr. Lala lays stress on the direction given by the High Court to the defendants to make some arrangement by which the water coming on to their lands from the plaintiffs' land might pass over the defendants' land in such a way as not to remain on the plaintiffs land. That direction was given because the defendants obstructed the natural flow of water from the plaintiffs' land to the defendants' land by raising an artificial bund. But for this bund the High Court would not have given any such direction. In the instant case, the plaintiffs have not done anything to obstruct the passage of water from the defendants' land to the plaintiffs' land. The natural contour of the area is such that the pagar is at a higher level than plot No. 750. The plaintiffs have not done anything to raise the level of the pagar. Hence, we cannot accept the suggestion of Mr. Lala that a direction should be given to the plaintiffs to make some arrangement, preferably by making a cut through the pagar so that the water order the defendants' land may pass out without remaining on the defendants' land. If the configuration of the area is such that the excess water is bound to remain on the defendant's land for sometime before it can overflow the pagar to reach the northern side of plot Nos. 683 and 684 sloping downwards, the plaintiffs cannot be asked to make arrangement for the prevention of such accumulation of water on plot No. 750.

(13) MR. Lala next referred us to the case of (2) Sinnana v. Veerappa, AIR 1930 Madras 676 decided by Division Bench of the Madras High Court. There the question involved was this: Is the right which the upper owner has to allow rain water on his land to flow out to the adjacent tenement at a lower level limited to allowing the water to flow out naturally and spread itself on the land of the lower owner or, can the upper owner send it out through an opening provided for that purpose Their Lordships held that the owner of the upper plot has a natural right to allow rain water on his land to flow on the adjacent land through the opening.

(14) THE plots of land, with two houses one in each plot belonging to a common ancestor proprietor, were partitioned, one plot being on a higher level. Subsequent to the partition a wall was built between the two plots jointly by the two owners. In that wall an aperture was left for carrying away water from the plot and house on the higher level. The owner of the upper land brought the suit to establish his right to discharge rain water through the aperture. Their Lordships held that the plaintiff had a natural right to drain off the rain water on his land into the adjoining lower land of the defendant through the aperture in the boundary wall. In the instant case, Mr. Lala claims the right of making a cut across the pagar belonging to the plaintiffs to drain off excess water from their plot No. 750 into plot Nos. 683 and 684 belonging to the plaintiffs. No such question was involved in the Madras case, therefore, the principle laid down in the Madras case has no application to the facts of the present case.

(15) THE defendants claim the right to discharge surplus surface water on plot No. 750 by making a cut across the pagar belonging to the plaintiffs. In other words, the defendants claim the right of discharging surplus water through an artificial water course across the land of the plaintiff. Such a right claimed by the defendant's cannot be a natural right or one of the incidents of property, but a right which the defendants might acquire either by express grant or by long and continuous user submitted to by the plaintiffs. In the instant case, the question of grant or prescription cannot arise, because the defendants are claiming the right to make an opening through the plaintiffs' land as a matter of right, and they say that, the right is part and parcel of their natural right to discharge water over the land of the plaintiffs. We, therefore, hold that the defendants are not entitled to make any cut across the plaintiffs' pagar to facilitate the flow of water from plot No. 750 to plot Nos. 683 and 684 to which appertains the pagar. Consequently we find no reason to interfere with the decision of the lower appellate Court on this point. In the result, the appeal is liable to be dismissed and we hereby dismiss the appeal and affirm the judgment and decree of the lower appellate Court. The parties will bear their respective costs in this Court. Sinha, J. : I agree appeal allowed.