Mahabir Sahu and Others vs Ram Saran Sahu and Others

Ali Imam, J.—The appellants are aggrieved by an order of the learned Subordinate Judge of Ranchi, who has reversed the order of the Munsif of Daltongunge. The plaintiffs'' suit was for declaration that they have acquired by right of easement an absolute right to the entire water of a certain rivulet, that the principal defendants in the case have no right to take any water from this rivulet to irrigate their lands and that the plaintiffs should be awarded Rs. 200 as damages and that there should be a perpetual injunction against the defendants prohibiting them from putting up a bund across the said rivulet.

It appears that a small stream rises from the Ulgarah hills and falls into the river Amanat. The defendants'' village Taliderih and the plaintiffs'' village Nuru are contiguous standing on the right bank of this rivulet. Taliderih is the higher village and Nuru is the lower one. The learned Subordinate Judge has come to the distinct finding that the plaintiffs who are the proprietors of Nuru have for more than forty years erected a pucca dam across this rivulet and that thereby they have been irrigating about 100 bighas of their lands situated in Nuru. It has also been held that this use that they have made of the water by putting up a bund has been an uninterrupted one. The learned Subordinate Judge has also come to the distinct finding that the defendants who were the proprietors of Taliderih have failed to prove that they have any right whatsoever to put a bund across this rivulet.

The principal point taken up in argument by the learned Vakil appearing on behalf of the appellants is that even if these findings are against the defendants, the judgment of the learned Subordinate Judge contains one declaration which is in excess of these findings and that he ought not to have allowed this additional burden to be placed upon the shoulders of the defendants. The passage in question in the judgment of the learned Subordinate Judge runs as follows: "It is further declared that defendants have no right to use the water of this streamlet for the purpose of irrigation." It is contended on behalf of the appellants that this order brenches upon their rights as riparian owners to make use of the water of this rivulet for the purpose of irrigation so long as that use is reasonable and natural. My attention is drawn to various authorities on the point and it may be conceded that so far as the proposition goes in relation to the rights of one riparian owner with reference to the rights of another riparian owner it is a sound one, but the case before me stands on a different footing altogether. The proprietors of Nuru are the plaintiff in this case. Their right is not only of riparian owners, but as a matter of fact they have got a higher right in respect of the water of this rivulet by their having constructed the pucca dam across the stream so long as forty years ago and by their making use of the water all these years without any interruption. The learned Subordinate Judge has also come to the distinct finding that this streamlet as a matter of fact has a small supply of water and this is so little that the water of this streamlet is barely sufficient for the purposes of irrigating the plaintiffs'' lands. It is evident, therefore that there is no such abundance of water coming through this streamlet as to irrigate the lands of the defendants without the lands of the plaintiffs suffering from want of water and as the right of the plaintiffs is established by prescription to the exclusive use of this water for the purpose of irrigating their 100 bighas of land, the ordinary incidents of riparian rights cannot be applied to their case.

In the circumstances the appeal is dismissed with costs.