Mahabir Sahu vs Ram Saran Sahu

Sir Thomas Fredrick Dawson Miller, Kt., C.J.—This is an appeal from a decision of a single Judge of this Court affirming a decree of the Subordinate Judge of Ranchi. The questions in dispute relate to the right of the defendants to use the water of a small stream which passes alongside or through their lands and then flows on into the land of the plaintiffs. It appears that some 40 or 50 years ago the plaintiffs'' ancestors erected a dam across the bed of this stream which has at no time of the year a very great flow of water, and it appears that daring the dry weather it is either entirely dried up or there is only a very small trickle. The object of erecting this dam across the river was that the water might accumulate and so be diverted for purposes of irrigating the plaintiffs'' land, of which they have about 100 bighas under rice cultivation. A few years before the institution of the present suit it appears that the defendants, whose land adjoins this stream a little higher up, had been erecting, or endeavouring to erect, dams across the stream for the purpose of diverting the water on to their own tenement in order to irrigate their own rice fields. The plaintiffs were aggrieved by this on the ground that it did not allow sufficient water to flow down into their part of the stream, with the consequence that during the year immediately before the prosecution of the suit their fields were not properly irrigated and their crops suffered. They, therefore, instituted the present suit against the defendants claiming a declaration that they had acquired a right, which they called a right of easement, to irrigate their lands in Mauza Nuru, which is the Mauza in which their lands are situate, by diverting the water of the stream by means of a Chohka and that the defendants have no right to interfere with or diminish the quantity of water flowing through the said stream. They also claimed an injunction restraining the defendants from putting dams across the stream and from obstructing the flow of water through the stream into the plaintiffs'' village. They farther claimed an injunction restraining the defendants from diverting the flow of water into the fields of their Mauza. They asked that the defendants should be ordered to demolish the dams which they had erected and they further claimed damages.

The matter came before the Munsif, who granted a decree in favour of the plaintiffs but with considerable modifications. His decree declared that the plaintiffs have as much right to irrigate their lands as the defendants and that the defendants should not take or obstruct more than a twentieth part of the water of this rivulet for irrigating their lands at any time when these fields stand in need of irrigation. They were also restrained from taking any more than the said quantity of water. That, of course, was not the declaration or the injunction which the plaintiffs were asking for, and it did not satisfy them because their case was that, having acquired a right of using the water for purposes of irrigation by prescription over a period of more than 40 years, the defendants by using the water for the same purpose were interfering with the rights which they had acquired, and that, although the riparian owners would have the ordinary rights of user of the water for domestic purposes such as washing and drinking and watering their cattle, they had not extraordinary rights such as diverting the flow of water for the purposes of irrigation so as to interfere either with the ordinary rights of the lower riparian owners or with the rights which they had acquired by prescription. And, as there was only sufficient water in the stream at any time to satisfy the needs of the plaintiffs for the purposes of irrigation, the defendants could not, in any event, use the water to any extent whatever for irrigating their own lands without interfering with the rights of the plaintiffs.

The matter was, therefore, taken on appeal to the Subordinate Judge. The Subordinate Judge in a very careful judgment, in which he reviewed the authorities, seems to me to have come to a correct decision. He found as a fact that the plaintiffs have acquired a prescriptive right to the use of the water of this stream for purposes of irrigation. He finds as a fact that the defendants, although within the last few years they have endeavored to divert the water for irrigating their own lands, have acquired no such prescriptive right to the use of the water for the purposes of irrigation. He also finds that the stream is a small one and very little water remains in it. The water is barely sufficient for the purpose of irrigating the plaintiffs'' land. Therefore, any water taken from this stream by the defendants baa the effect of diminishing the quantity of water required for irrigating the plaintiffs'' land. These are the findings of fact which the Subordinate Judge has come to, and by these findings this Court is bound. Having arrived at these conclusions, the learned Subordinate Judge set aside the decree of the Munsif and in lieu thereof he granted the following declaration:--

That the plaintiffs have acquired a right to irrigate their land of Mauza Nuru by diverting water from the streamlet which rises in Ulgara hills, passes through villages Choriya and Saradih and flows into village Nuru. It is further declared that defendants have no right to use the water of this streamlet for the purpose of irrigation; and further they have no right to place mud dams across this streamlet and thereby diminish the quantity of water which flowed down the stream to plaintiffs'' village. The defendants are perpetually restrained from constructing dams across the streamlet and also from interfering with plaintiffs'' right. The defendants are directed to remove the dams and ditch and channel existing in the bed of the stream within three months from the date hereof. In default the plaintiffs shall be entitled to have them demolished and filled up by Court in execution of decree. The plaintiffs shall also get Rs. 50 for damages in this case from the defendants", and then the Subordinate Judge awards the appellants before him costs.

From that decree an appeal was preferred to this Court which came before a single Judge who, after hearing the arguments of both parties, dismissed the appeal, coming to the conclusion that, on the facts found in this case, the decree of the learned Subordinate Judge was right, I ought to say that in the appeal before the learned Judge of this Court the only part of the decree which the appellants complained about was that part which declared that the defendants had no right to use the water of the streamlet for the purposes of irrigation. They did not contend that they had any right to dam up the stream and so divert the water on to their own lands, but they did contend that they had a natural right to the use of this water to some extent at all events for the purpose of irrigating their lands, and they claimed that this part of the declaration should be set aside or modified. The learned Judge, however, came to a different conclusion and, taking the findings of the Subordinate Judge that the streamlet was so small and the supply of water so little that it was barely sufficient for the purpose of irrigating the plaintiffs'' land, held that that part of the declaration which was complained of was in the circumstances perfectly right according to law. He said: "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.

From that decision the present appeal, has been preferred to this Bench under clause 10 of the Letters Patent and the same arguments have been put before us as were apparently urged before the learned Judge. It has further been contended that, although the appellants had a grievance under the decree of the Subordinate Judge, they have got a still further grievance under the judgment of the learned Judge of this Court because of the wards which I have just read from the concluding part of his judgment, where he speaks of the plaintiffs having acquired a prescriptive right to the exclusive use of the water for the purpose of irrigating their lands and the ordinary incidents of riparian rights not being applicable to the case. It has been contended before us that the right to irrigate is one of the ordinary rights of all the riparian owners and that the defendants in this case would be entitled to use the water for irrigation, at all events in a reasonable manner. It seems to me that the answer to this argument is that it is not accurate to describe the use of water for the purposes of irrigation as an ordinary right of a riparian owner. The difference between the ordinary uses of water running past a person''s land and what may be called the extraordinary use of it has been laid down from time to time in judgments both in this country and in England, and the matter was very clearly dealt with by Lord Kingsdown in the case of Miner v. Gilnour (1859) 12 Moore P.C. 131 at p. 156 : 3 L.T. 987 W.R. 328 : 124 R.R. 3 : 14 E.R. 861, where that learned Judge in delivering the judgment of the Board said:--

By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in a case of deficiency upon proprietors lower down the stream.

But, further, he has a right to the use of, it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him.

Subject to this condition, he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation.

But he has no right to interrupt the regular low of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury.

The right of the riparian owner to use the water either for the purpose of irrigation or for the purpose of manufacture, which is here described by Lord Kingsdown as extraordinary user of the water, is subject, as pointed out, to the condition that the use in that manner shall not interfere with the lawful use of the water by the other proprietors, and it has, I think, been fairly clearly established at the present day that the condition under which the water may be used for this extraordinary purpose includes the restriction that the water which is taken and used must be restored substantially undiminished in volume and unchanged in character, so that the question which has to be considered in each of these oases where an extraordinary use is made of the water, as in the present case, for the purpose of irrigation is, whether the water used for this purpose does in fact substantially diminish the volume of water flowing in the stream so as to interfere with the rights of the lower riparian owners. It may be that in a large river a very considerable volume of water might be used and never returned again to the river by the riparian owner who is irrigating his lands by taking water from the river, and yet there would be no substantial diminution of the flow of water so as to interfere with the rights of the lower riparian owners. It may be again, in a case where there is a small stream, that the use of water for the purposes of irrigation by one riparian owner might or might not interfere with the rights of those lower down the stream. It would be a question of fact in each case. But in the present case we have got to recollect what the actual findings are, and we have got to recollect further that the plaintiffs--respondents in this case--have acquired in addition to the ordinary rights of using the water for domestic purposes a farther right of using the water for purposes of irrigation. The finding is that the stream is a small one and that the water in it is barely sufficient for the purpose of irrigating the plaintiffs'' land, and, therefore, any user by the defendants for the purpose of irrigation must necessarily diminish the volume of water so as to deprive the plaintiffs of their right of irrigation which they have undoubtedly acquired. Therefore, it seems to me that the plaintiffs have established their case and were entitled to the injunction claimed, but I wish to point out, in case of any misapprehension, that where the learned Judge in the judgment now under appeal use the words "that as the right of the plaintiffs is established by prescription to the exclusive use of this water for the purposes of irrigating their 100 bighas of land, the ordinary incidents of riparian rights cannot be applied to their case," I do not think he was meaning'' any more than this, that, in considering the interference with the rights of the plaintiffs, by the defendants using the water to irrigate their lands, one had to consider not only the ordinary incidents attaching to the rights of riparian owners but this further fact that the plaintiffs in this case had acquired an absolute right to dam up the river and irrigate their land and use the water for that purpose, and, in speaking of the exclusive use of this water, he does not mean that the plaintiffs were entitled to use this water and prevent the defendants from using it for any purpose whatsoever. The defendants can obviously use the water for all ordinary purposes, which have been described as domestic purposes such as washing, drinking, and water for cattle, but as the defendants have not acquired any prescriptive right to use the water for purposes of irrigation and as they have no right at all to use the water for the purposes of irrigation if thereby they interfere with the rights of the plaintiffs, I think that all the learned Judge meant by the expression "exclusive use of the water" was that the plaintiffs were the only persons as between them and the defendants who are entitled to use the water for the purposes of irrigation, and not that they alone had any right to use the water so as even to exclude the defendants from using it for ordinary domestic purposes. With these observations it seems to me that the decree appealed from in this case was right and that this appeal ought to be dismissed with costs.

L.C. Adami, J.

I agree.