[This appeal came on for hearing before their Lordships Phillips and Ramesam, JJ.]

The plaintiff (appellant) is the owner of a piece of land which lies on a higher level than the land of the defendant and he seeks to prevent the defendant from erecting a bund on his land, which has the effect of preventing the flow of surface water over the plaintiffs land on to the defendants land which is its natural outlet. The lower appellate Court following the ruling in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam (I.L.R., 29 Mad., 539) [LQ/MadHC/1906/79] , has held that the defendant is entitled to prevent water flowing over his land by erecting a bund. It is now argued for the appellant that this decision in Mahamahopadyaya Rangachariar v . The Municipal Council of Kumbakonam (I.L.R., 29 Mad., 539) [LQ/MadHC/1906/79] is only applicable to cases where the lands are situated within a town and he relies on subsequent cases of this Court Ramasawmy v. Rasi (I.L.R., 38 Mad., 148) and Gopalakrishna Yachendra v. Secretary of State (2 L.W., 45), In Ramasawmy v. Rasi (I.L.R., 38 Mad., 148) the prior decision in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam (I.L.R., 39 Mad., 539) was distinguished on the ground that it referred to land in a town and was, therefore; not applicable to agricultural land outside a town. The decision in Gopalakrishna Yachendra v. Secretary of State (2 L.W., 45) was with reference to the right to bund a natural stream and Seshagiri Aiyar, J., prefers to base his decision on Illustration ( h ) of Sect. 7 of the Easements Act (V of 1882) rather than Illustration ( i ) which deals with surface water, Illustration ( h ) dealing with natural streams. He, however, adds that if the learned Judge in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam (I.L.R., 39 Mad., 539) intended to lay down that the principle regarding the conflict of rights should be extended to agricultural areas in rural parts, he dissents from the proposition and Wallis Officiating C.J., takes the same view. Subramania Aiyar, J., in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam (I.L.R., 39 Mad., 539) laid down the proposition that the natural right mentioned in illustration ( i ), namely,

the right of every owner of upper land that water naturally rising in or falling on such land and not passing in defined channels, shall be allowed by the owner of adjacent lower land, to run naturally thereto,

was not an absolute right but was the right to pass such water without incurring any liability for damages caused thereby and held that when that right came in conflict with the right mentioned in illustration (a) namely;

the exclusive right of every owner of land in a town to build on such land, subject to any Municipal law for the time being in force

the latter must prevail. If this proposition is correct it would be illogical to hold that the natural right to pass water over a lower land cannot prevail in a town whereas it must prevail in the country.

In Sect. 7 we have the definition of what an easement is, namely, restriction of one or other of the following rights which are mentioned. Because illustration (a) mentions the right of an owner of land in a town to build on such land, it does not necessarily exclude the right of an owner of land in the country to build on such land. In fact Sect. 7 itself deals with the exclusive right of every owner of immoveable property, subject to any law for the time being in force, to enjoy and dispose of the same and also the right of every owner of immoveable property, subject to any law for the time being in forces to enjoy without disturbance by another the natural ad-vantages arising from its situation. Prima facie the owner of immoveable property is entitled to do what he pleasea with his land and can only be restrained by law or by the superior right of some other person. There can be no distinction between such a right in a town and the same right in the country, unless it is subject to any law for the time being in force. We find it difficult to realise the distinction drawn between such rights in Ramasawmy v. Rasi (I.L.R., 38 Mad., 149) [LQ/MadHC/1913/41] and Gopalakrishna Yachendra v. Secretary of State (2 L.W., 45), unless there is some law or custom having the force of law which restricts the right in rural areas, but not in urban areas. The difficulties of cultivating land are referred to and it is suggested that owing to these difficulties the natural right of an owner of land to do on it what he pleases is subject to restrictions, but this can only be if the restrictions are imposed by law or custom having the force of law. If the right of an owner to pass his surface water on to the lower land is an absolute right which the owner of the lower tenement cannot resist, it is undoubtedly an easement right enjoyed by him over the lower tenement but we find in the that the right is given as an illustration of a right against which an easement may be acquired and is not described as being in itself an easement right. It is doubtful whether the legislature would have given a right which is in itself an easement right as an illustration of a natural right in restriction of which an easement right can be acquired. We may mention that the observations in Gopalakrishna Yachendra v. Secretary of State (2 L.W., 45) with reference to illustration ( i ) of Sect. 7 are obiter inasmuch as it was found in that case that the water which was interfered with was the water of natural stream. The decision, however, in Ramasawmy v. Rasi (I.L.R., 38 Mad., 149) [LQ/MadHC/1913/41] distinctly limits the proposition put forward in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam (I.L.R., 39 Mad., 539) to urban areas although in the earlier judgment there is no language to lead one to suppose that the learned Judges meant to confine the decision to urban areas. They no doubt refer to illustration ( a ) which deals with land in a town but the right mentioned is only an illustration of the rights referred to in Sect. 7 and does not exclude other rights ex jure naturae appertaining to an owner of land. An owner of agricultural land is undoubtedly entitled to raise the level of his land if he so wishes, provided there exists no legal restriction of such act. It might thus happen that a lower land when raised would become higher in level than the adjacent land which had formerly been on a higher level. The right to pass water would thereby be reversed and the owner of the originally lower land would be entitled to pass water on to what was originally the higher land. If the owner of the lower land has such a right to raise his land over the whole of it, it is strange that he cannot raise the level over only a part, such raising having the effect of stopping the flow of water through the adjacent land but whether he has such right must depend on the extent of the right of the owner of the land which was originally higher. Three other authorities have been cited before us from other parts of India, the first being Ambica Saran Singh v. Debi Saran Singh (24 I. C., 91) in which it was decided that the owner of higher land had the right to pass his surface water over lower land so long as it continued to be on a lower level, apparently dissenting from the decision in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam (I.L.R., 39 Mad., 539) although in terms it does not purport to do so. In the other two cases of Calcutta and Patna respectively the Easements Act does not apply Ramadhin Singh v. Jadunandan Singh (27 I. C., 268) and Sarban v. Phudo Sahu (69 I.C., 947). The former case is of no assistance here, for it merely deals with the right of a party to abstain from passing water falling on his land to the lower land and to collect it on his own land. The Patna case does not refer to any authorities and the Court came to a conclusion differing from that taken in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam (I.L.R., 39 Mad., 539).

Inasmuch as the authority of Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam (I.L.R., 39 Mad., 539) which was followed in Sangana Reddiar v. Perumal Reddiar ((1910) M.W.N., 545) has been questioned in Ramasawmy v. Rasi 6 and Gopalakrishna Yachendra v. Secretary of State (2 L.W., 45) we think that it is advisable that the whole question should be considered by a Full Bench of this Court, and accordingly we refer the case to a Full Bench for decision.

[This case came on for hearing before a Full Bench as constituted above.]

Murray Court Trotter, C.J.

[1] This appeal raises certain questions of fact with which we are not concerned. The question of law to which our attention has been directed is whether the owner of a plot of land on a lower level on to which water flows in the ordinary course of nature from adjacent land on a higher level is entitled in law so to deal with his land as to obstruct the escape of water from the higher land. It is said that any right which the owner of the higher land has is not in the nature of an easement and that terms such as dominent and servient tenements are inapplicable. That may be true in the abstract but it seems to me that the Privy Council and the House of Lords have clearly recognised a very close analogy between the two classes of cases and that if the owner of the land at the lower level raises an obstruction to the natural flow of the water he will be restrained if it causes or tends to cause damage to the owner of that on the higher. Gibbons v. Lenfestey 113 LT (NS) 55 is a direct authority of the Privy Council binding upon us. In the judgment of the Committee which was delivered by Lord Dunedin we have at page 57.

The right of the superior proprietor to throw natural water on the lower land is not an ordinary servitude to which this rule can apply. It is a natural right inherent in property; it is a question of nomenclature whether it is or is not called a servitude.

[2] Later on we have

Where two contiguous fields belong to different proprietors one of which stands upon higher ground than the other, nature itself may be said to constitute a servitude on the inferior tenement, by which it is obliged to receive the water that falls from: the superior. If the water which would otherwise fall from the higher ground insensibly without hurting the inferior tenement should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is, without the positive constitution of any servitude, bound to receive that body of water on his property.

[3] In John Young and Co. v. Bankeir Distillery Company (1993) AC 691 Lord Watson says at page 696

The right of the upper heritor to send down, and the corresponding obligation of the lower heritor to receive, natural water, whether flowing in a definite channel or not, and whether upon or below the surface, are incidents of property arising from the relative levels of their respective lands and the strata below them. The lower heritor cannot object so long as the flow, whether above or below ground, is due to gravitation, unless it has been unduly and unreasonably increased by operations which are in aemulalionem vicini. But he is under no legal obligation to receive foreign water brought to the surface of his neighbour s property by artificial means; and I can see no distinction in principle between water raised from a mine below the level of the surface of either property, which is the case, here and water artificially conveyed from a distant stream.

[4] And then His Lordship quotes Lord Giffard in Blair v. Hunter Finlay and Co. 9 Court Sess. Cases, 3rd Series, Macpherson at p. 207 "Although there is a natural servitude on lower heritors to receive the natural or surface water from higher gounds, the flow must not be increased by artificial means, although reasonable drainage operations are permissible."

[5] The same principle clearly underlies the decision in Smith v. Kenrick (1849) 7 Common Bench 515: 137 ER 205 and in that case Mr. Justice Cresswell in delivering the judgment of the Court said:

There are many cases in which the principle has been recognised, that one land owner cannot, by altering the condition of his land, deprive the owner of the adjoining land of the privilege of using his own as he might have done before. Thus, he cannot by building a house near the margin of his land prevent his neighbour from excavating his own land, although it may endanger the house, nor from building on his own land, although it may obstruct windows, unless indeed by lapse of time the adjoining land has become subject to a right analogous to what in the Roman Law was called a servititude. So also in Acton v. Blundell (1843) 12 M&W 324 where the subject" was very much discussed, the Court held that one land owner having dug a well on his own lands could not maintain an action against a party who afterwards sunk a coal-pit in the neighbourhood which had the effect of drawing the water away from his well: the act not being done by the defendant negligently or maliciously, but in a proper manner for the purpose of winning his own coal. We think that the same principle is applicable to the present case. The water is a sort of common enemy as was said by Lord Tenterden, in Rex v. The Commission,ers of Sewers for Pagham (1828) 8B and C 355: 108 ER 1075 against which each man must defend himself. And this is in accordance with the Civil Law, by which it was considered that land on a lower level owed a natural servitude to that on a higher, in respect of receiving without claim to compensation, the water naturally flowing down to it.

[6] This last case also touched on the distinction between natural and artificial accumulations of water which was later in 1888 made the basis of the celebrated decision in Rylands v. Fletcher (1868) LR 3 HL 330 The reference seems to have been made on account of the conflict of views expressed in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbako-nam (1906) ILR 29 M 539: 16 MLJ 582 and Sangana Reddiar v. Perumal Reddiar (1910) MWN 545 [LQ/MadHC/1910/82] on the one hand and Ramaswami v. Rasi (1913) ILR 38 M 149: 25 MLJ 276 [LQ/MadHC/1913/41] on the other. The referring Bench in accepting the distinction drawn in Ramaszvami v. Rasi (1913) ILR 38 M 149: 25 MLJ 276 [LQ/MadHC/1913/41] held that the decision in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam (1906) ILR 29 M 539: 16 MLJ 582 only referred to urban areas and we agree that no such distinction arises. It doubtless came from the accident that illustration (a) to Section 7 of the Easements Act instances a case of land in an urban area because it wishes to safeguard the statutory rights of urban authorities to restrict unapproved methods of dealing with land and buildings. In our opinion Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam (1906) ILR 29 M 539: 16 MLJ 582 was wrongly decided and the reasoning on which it is based is clearly at variance with the decisions of the Privy Council and the House of Lords to which we have referred; and the same observations apply to Sangana Reddiar v. Perumal Reddiar (1910) MWN 545. [LQ/MadHC/1910/82] It cannot be that the law recognises two inconsistent rights in adjacent owners, the exercise of one of which would necessarily destroy the other.

[7] It was contended by the respondent that, if the argument of the appellant should be correct, the owners of the adjoining lands at a lower level would be prevented from improving their lands; but this is clearly not so as the adjoining owner can improve his lands to any extent he pleases even to the extent of raising the level of his lands provided that he makes suitable arrangements for carrying off the water from his neighbour s land. We are confirmed in our view by the fact that the decision in Ramaswami v. Rasi (1913) ILR 38 M 149: 25 MLJ 276 [LQ/MadHC/1913/41] was referred to by the Puivy Council in Maunga Bya v. Mating Kyi Nyo (195) LR 52 IA 385: 49 MLJ 282 [LQ/PC/1925/58] with approval as being consistent with the authorities.

[8] We refer the case back to the Division Bench for final disposal with this expression of opinion.