Hari Singh and Others vs Kanchan Mahto

Mullick, J.—This application for revision arises out of a dispute regarding irrigation rights in a natural stream called the Bagra, which flows northwards from the Kharagpore hills and passes at one stage of its course through Perganna Sahroi, which belongs to the Raja of Banaili.

In this portion the villages both on the right and left bank of the river are in the possession either of the Bataili Raj itself or in that of the Mokararidars of the Banaili Raj, and those claiming under the Mokararidars.

The river then leaves Perganna Sahroi and enters Perganna Haveli Kharagpore, which is the property of the Maharaja of Darbhanga.

It has been found as a fact that as soon as it enters this Perganna, the bed of it lies wholly within the boundaries of that Perganna and that the villages on its east bank appertaining to Perganna Sahroi have no claim to any portion of the bed of the river.

In October last the Mokararidar and his tenants put up a band across the river at a place called Jamhat and by putting a channel from the eastern bank of the river irrigated certain villages belonging to the Mokararidar.

Thereupon a tenant of a village upon the bank of the river in that portion which flows through Perganna Haveli filed a complaint before the Magistrate charging the Mokararidar and his tenants with mischief u/s 430, Indian Penal Code.

The result was that the accused were convicted and sentenced to a fine of Rs. 25 each.

The learned Sub Deputy Magistrate who tried the case found that the Mokararidar had no right to use any of the water of the stream for irrigation purposes anywhere'' above the point at which the river entered Perganna Haveli Khanjapore and that the * construction of the bund was made with the intention of causing wrongful loss to the lower riparian proprietors.

On appeal the learned District Magistrate has affirmed that finding, but in the concluding portion of his judgment he says "that even if the version given by the accused is true they are guilty of mischief, because they have taken the bulk of the water in the stream."

The case for the accused in the trial Court was that the stream had two branches one of which alone they bad obstructed and that their user was, having regard to the nature and circumstances, reasonable and sanctioned both by Common Law and by prescription.

There is no finding by the trial Court on any of these points. But the conviction proceeds mainly upon the finding that the Banaili Raj had no right whatever to take water for irrigation purposes from the river at all.

The learned Sub-Deputy Magistrate and the learned District Magistrate have both based their decisions upon a judgment of the Assistant Settlement Officer given in 1907.

Now if this decision were correct, it would probably be easy to say that the accused could not have had any bona fide belief that they were entitled to use the water at Jamhat. But I am unable to see from the judgment of the Assistant Settlement Officer that there was any clear finding that the bed of the river above the point at which it enters Perganna Haveli was the property of the Maharaja of Darbhanga, or that the Raja of Banaili had no right to exercise his rights as a riparian proprietor over any portion of it.

The Assistant Settlement Officer was concerned to decide the boundary between certain villages lying on the west in Perganna Haveli, and on the east in Perganna Sahroi, and he came to the conclusion that as in the Revenue Survey Map the river was within the former Perganna, the Maharaja of Darbhanga had a better title than the Raja of Banaili to the whole of it.

In order to support his decision upon the question of title with regard to this. portion of the river, the Assistant Settlement Officer went into the question of irrigation rights, and he found that the tenants of the Banaili Raj were not entitled to exercise any of the rights of riparian proprietors in respect of this portion. But I cannot find any clear finding that in respect of every other portion of the river the Maharaja of Darbhanga and he alone was entitled to exercise irrigation rights to the exclusion of other riparian owners.

Therefore, in my opinion, in the absence of any authority for holding that in regard to that portion of the river which is now in dispute the riparian owners have lost their rights, it seems to me that the case must be judged upon the Common Law of this country.

The case as to prescription has not been established, but it certainly has to be shown that the accused are not entitled to exercise the ordinary rights which are enjoyed by riparian owners in this country in respect of, natural streams flowing past the lands occupied by them.

The law in this respect has been laid down in a number of rulings of which it is necessary only to cite Belbhadar Pershad Singh v. Sheikh Barkat Ali 11 C.W.N. 85 : 4 C.L.J. 370.

Their Lordships in this case approve of the general principle that a riparian proprietor can only take for the purpose of irrigation so much water as is necessary without materially diminishing what is to be allowed to descend and the quantify of water that can be abstracted and used without infringing that essential condition must in all cases be a question of circumstances, depending mainly upon the size of the stream and the proportion which the water taken bears to the entire volume. And Mookerjee, J., cites in support an American case, Harris v. Harrison 93 California 676 : 29 Pacific 325, in which occur the following observations:

A riparian owner is entitled only to the reasonable use of natural water for irrigating his land, although such use may appreciably diminish the flow down to the lower riparian proprietors; the larger the number of riparian proprietors whose rights are involved, the greater the difficulty of adjustment; the length of the stream, the volume of water in it, the extent of each ownership along the banks, the character of the soil owned by each contestant, the area sought to be irrigated by each--all these and many other considerations must enter into the solution of the problem, but one principle is surely established, namely, that no proprietor can absorb all the water of the stream so as to allow none to flow down to his neighbour.

In this case there is no finding by the trial Court that the accused have absorbed the whole of the water. The learned District Magistrate does find that the accused have absorbed the bulk of it, but in the absence of any consideration or discussion of the circumstances and the reasonableness or otherwise of the user made by the accused, it is impossible for us to say that they acted with that guilty knowledge which is essential to a conviction for the offence of mischief. Indeed the Courts below appear to have been mainly influenced by their decision that no part of the water could legally be used by the accused. In our opinion this finding is not based upon any legal evidence, and, therefore, the convictions and sentences must be set aside. The fines, if paid, will be refunded.

Jwala Prasad, J.

I agree.