P (PLP)

MUHAMMAD SHARIF, J.‑This is a Letters Patent appeal by the plaintiffs arising out of their suit for a permanent injunction. The plaintiffs are known as Qazis and own land in the area of village Khushab, Ahirpur and Mangpur. To the north is a shamilat of village Khushab, in which, however, the Qazis have no share. It was alleged that the rain water of the shamilat land of the defendants, has been flowing to the plaintiffs' fields, from time immemorial and in order to irrigate their lands, the plaintiffs had constructed water channels in the shamilat. This right was also definitely mentioned in the wajib‑ul‑ars of the years 1891‑92 and 1913‑14. .It was further alleged that in 1922 and 1925, some of the proprietors of village Khushab, obstructed the flow of the shamilat water to the plaintiffs' land, which led to a suit by them. Their right was recognised and they were granted decrees. In the proceeding's for the partition of the shamilat of village Khushab, the land in question was left out of partition for the reason that it provided water for the plaintiffs' fields. Only recently the defendants Nos. 1 to 32 have brought under cultivation 193 kanals of shamilat land and thus violated the provisions of wajib‑ul‑arz. The defendants have no right to do this and the plaintiffs claimed that they be permanently restrained from cultivating their shamilat area, so as not to interfere with the supply of water to their own fields. The defendants denied the allegations made in the plaint. It was maintained that they were the owners of the shamilat land and had every right to use it and bring it under the plough. It was also denied that the provisions of wajib‑ul‑arz created any right in favour of the plaintiffs. They had not acquired any right of easement as to the flow through the shamilat land of rain water. The previous alleged litigation in which the right of the plaintiffs was said to have been enforced, was not within their knowledge. The trial Court granted the plaintiffs a decree for permanent injunction, restraining the defendants from obstructing the flow of water from the land which was still uncultivated. The prayer about restraining the defendants from 1cultivating their own land, was refused as also with respect to 193 kanals of land, which had already been brought under cultivation. On appeal, the learned Senior Subordinate judge agreed with the conclusions of the trial Court and dismissed the appeal. On second appeal to this Court, the (earned judge in Chambers affirmed the decrees of the Courts below and dismissed the appeal. The plaintiffs have now come up in Letters Patent appeal. The real question for decision is : whether the plaintiffs have acquired or could acquire an easement of the nature alleged by them, which would prevent the defendants from cultivating their own land, from which the rain water flowed down to the plaintiffs land and was utilised by them, for irrigation purposes. The defendants' land is situated on a higher level and by the mere force of gravitation, the rain water would be discharged on the plaintiffs' land lying below. Khushab lies at the foot of the Salt Range where the rainfall is very scanty. It appears that during the long course of years, the defendants had not brought under cultivation their shamilat area and the rain water easily flowed down to the plaintiffs' land and it also appears, that some well marked water channels have come to exist on the scene, might be through natural forces or might be, through the efforts of the plaintiffs or defendants. There is no reliable evidence that these water channels ‑were artificially constructed by the plaintiffs or their ancestors. Qazi Tufail Ahmad plaintiff appearing as P. W. 4, asserted that they, that is, the plaintiffs had done this. No further details were given. The record does not indicate the age of Qazi Tufail Ahmad himself or whether he could have any personal knowledge, as to the construction of the water channels which were said to have been constructed more than 60 years ago. This is surely insufficient to induce one to hold, that the channels through which the rain water was ‑carried to the plaintiff's fields, were dug by the plaintiffs or their ancestors. In all probability, it was the work of nature through erosion of soil and in course of time, the water found its way through a defined course. The law as to surface water is well settled. Surface water arising on a tenement in the form of springs or fountains, or coming to it from melting snows, or falling on it as rain water from the skies, is the exclusive property of the owner of the tenement. The owner has a natural right to collect, retain and enjoy such water within the boundaries of his land. He may, however, at his option let this surface water take, according to the force of gravitation,, its natural course and affect his neighbour. The neighbour is bound‑to receive without complaint this water coming to him in the ordinary course of nature, and even to suffer damage which may be done to him by them. This right of the upper heritor to send down, and the corresponding obligation of the lower heritor to receive natural water, as an incident of property, arises out of the natural configuration of lands and due to the natural difference in their relative levels. The above legal position would be found stated at page 344 of "Easements and Licences" K. N. Joshi and gathered from the various decided cases on the subject. The situation of the defendant's land on a higher level, made it a dominant tenement, which would acquire the right of easement of the discharge of their water on to the plaintiffs' land, if it had been done through well defined channels. The rain water could either spread itself out or could be sent down through clear cut water channels. In the case of the latter, a right of easement might be acquired by prescription by the defendants. An easement exists for the convenience or advantage of the owner of the dominant tenement and there is nothing to prevent hire from foregoing the easement. The owner of a servient tenement cannot compel that of the dominant tenement to continue to exercise the easement ; because it might give some extra facility or advantage to him. In the case reported as A. I. , R. 1919 Cal. 1062 the learned judges observed: "This is really a case of the owner of a servient tenement endeavouring to retaliate by claiming an easement against the owner of the dominant tenement. The defendants (Principal and pro forma) may have acquired a right by prescription to discharge surplus water from their land on to that of the plaintiff, but this would not give him the right to insist that they should continue to do so for all time". In this view of the case, the plaintiffs could not assert any right of easement on their part ; on the other hand they were themselves subject to the right of an easement in favour of the defendants. The wajib‑ul‑arz of 1913‑14 which is in the same terms as that of 1891‑92 recites : "Each proprietor has left out some banjar uncultivated land to serve as his catchment area and the water flowing therefrom irrigates his fields. Some water channels had also been constructed. The old ones cannot be obstructed or closed. The banjar land which supplies water to the lands of Qazi Ghulam Muhammad etc. (the plaintiffs), have some water channels made therein. So long as the land is lying uncultivated banjar, the Qazis shall be entitled to take water. They shall however, not be entitled to bring it (`the banjar land) under cultivation'. The owners of the other village could not take the water flowing from the banjar land of our village. Whatever flows away in a natural manner, there could be no objection to it". The provisions of the wajib‑ul‑arz cannot be made the foundation of the acquisition of any easement by the plaintiffs against the defendants. The water was allowed to go down to the plaintiffs' land, because there was no immediate need for the owners, that is, the defendants themselves. It was for this reason, that it was clearly mentioned in the wajib‑ul‑arz, that so long as the land was not cultivated, the rain water might be utilised by the plaintiffs for their own land. Taking the claim of the plaintiffs on its face value, they simply say that they have beer making use of the rain water coming down from the defendants fields on the higher level for the last 60 years. That would place it somewhere near 1880. It would follow, that by the time the wajib‑ul‑arz of 1891 was prepared, the plaintiffs had not acquired any right of easement by prescription by continuous user for 20 years. After the wajib‑u1‑arz the user was no more than permissive and could not ripen into an easement which must be as of right". There is yet another point of view, from which the case might be approached. The defendants have a natural right to utilise the rain water that falls upon their land and there is no law which would prevent them from doing so, even where they had not used it before. A right of casement is a fractional user of property, leaving the remaining user of the property with the owner. The entire property cannot be made subject to a right, which would preclude all use of it for which it was intended. This principle is embodied in section 17 of the Easements Act. The expression "total destruction" as explained in A. I. R. 1934 All. 868 has been explained as meaning not the physical destruction of the dominant heritage but such user of it would make it totally unfit for the owner's use. If the plaintiff's pleas were to be accepted, the land belonging to the defendants would become useless to them for all time to come and this is not what is contemplated by easement. Such an easement, therefore, is unknown to law and could not be acquired by prescription. The previous litigation need not cause much difficulty. The suit of 1922 was filed by Tufail Ahmad plaintiff etc. against Allah Din defendant and one other. The dispute then related to khasra No. 3408/3116. It was decreed. The plaintiffs were granted the right to receive water of khasra No. 3408/3116. Similarly in 1925, the plaintiffs obtained a decree regarding the flow of water of khasra Nos. 3071, 3408/3116 and 3070. This was against Allah Din and two others. All the co‑sharers in the shamilat, were not parties to the previous litigation. The shamilat land is still undivided and the other members of the proprietary body, would not at all be bound by the decrees obtained by the plaintiffs against two or three persons only. Allah Din and the other persons proceeded against, in the previous litigation, would by the rule of res judicata, be restrained from preventing flow of water from the kkasra numbers in dispute in the previous suits, to the land of the plaintiffs. That would not, however, entitle the plaintiffs to obtain the decree against the proprietary, body on the basis of their claims having been decreed against one or two individuals on a prior occasion. For the reasons given above, the judgment under appeal is correct. The appeal is consequently dismissed with costs. K. M. A. Appeal dismissed.