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reference may be made to Raj Rup Koer v. Abul Hossein (1881) 6 Cal 394 where some 40 or 50 years before the suit the plaintiff's ancestors, after making compensation to the defendants, had constructed a pain or artificial watercourse on the defendants' land to take water from a natural stream to the plaintiff's land. Some years before the suit the defendants, without authority, had obstructed the flow of water along the pain by making dams and cuts in the channel and thus drew off continuously, from https://www.mhc.tn.gov.in/judis day to day, water from the plaintiff's channels and diverted it to their own fields. In a suit by the plaintiff for a declaration of his sole right to the pain and an injunction directing the defendants to close the openings and restraining them from draining off the water in future, it was held by their Lordships of the Privy Council that the dams, outs and other modes of obstructing or diverting the water from the watercourse were in the nature of a "continuing nuisance" as to which the cause of action was renewed de die in diem so long as the obstructions causing such interference were allowed to continue and the suit was held to fall within Section 24, Limitation Act 9 of 1871 (which corresponded to Section 23 of the present Act 9 of 1908).

AIR1935Cal405 ). All these decisions purport to be based on Raj Rup Koer v. Abul Hossein (1881) 6 Cal 394 above referred to and in some of them it has been broadly stated that there is no distinction between an obstruction to a water-course and one to a way, and wrongful interference with a right of way constitutes a continuing nuisance (Nazimulla v. Wazidulla AIR (1916) Cal 733). With great deference, it must be said that this proposition is too widely expressed and cannot be accepted as correct in all cases, regardless of the nature and extent of the encroachment or obstruction. There is, for instance, no analogy between the case decided by the Privy Council and a case in which a right of way has been obstructed by the construction of a wall or a building of a more or less permanent character, which has completely blocked the way of the plaintiff. As has been stated above, in Raj Rup Koer v. Abul Hossein (1881) 6 Cal 394 the defendants by making dams and https://www.mhc.tn.gov.in/judis cuts in the water channel, which had been constructed by the plaintiff on the defendants' land, were diverting, continuously and day by day the water from the water channel to their own lands. They were thus committing a fresh wrong every time that the water was so diverted. In Nazimulla v. Wazidulla AIR (1916) Cal 733, reference was made to two English cases. But the facts of those cases were materially different. Indeed, one of them, Thorpe v. Brumfitt (1873) 8 Ch A 650, brings out prominently the distinction between obstructions which are permanent and those which are not. There, the way to the yard of the owner of an inn was obstructed by the loading and unloading of heavy waggons, of the defendant who owned the adjoining property. The obstruction was not permanent; it was caused whenever the waggons were loaded and unloaded and each such obstruction gave a fresh cause of action to the plaintiff. In the other English case referred to, Lane v. Chapsey (1891) 3 Ch D 411 a mandatory injunction to remove the obstruction to a right of way had been refused, the defendant had then become insolvent, and the plaintiff applied to the Insolvency Court for leave to take proceedings for the abatement of the nuisance. Chitty J.

Tek Chand, J., who delivered the leading judgment in the case referred to the decision of the Calcutta High Court dealing with the applicability of Section 23 of the Limitation Act to a wrongful obstruction to a right of way and observed:

All these decisions purport to be based on ILR 6 Cal 394: LR 7 1A 240 (PC) (H), above referred to and in some of them it has been broadly stated that there is no distinction between an obstruction to a water course and one to a way, and wrongful interference with a right of way constitutes a continuous nuisance 21 Cal LJ 640 https://www.mhc.tn.gov.in/judis :AIR 1916 Cal 733 (2) (O).