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Judgment
Wort, J.—This is a defendant''s appeal in an action in which the plaintiffs claim a declaration that they acquired a right of easement to, the unobstructed and free flow of water through a water channel known as the pyne to their village Ajodya, otherwise known as Audahe. They also claim an injunction against the defendants restraining them from putting up any bandh or grandi or obstruction across the pyne. The plaintiffs succeeded in their action before the learned Subordinate Judge, it being decided that the defendants had no right to place grandi or bandh across the channel, although they were entitled to use the water coming through the pyne by cutting a bandh which forms one of its banks, thus allowing the water to flow into a reservoir which forms the western boundary of the village pyne No. 118. From the map which was exhibited in the case, it will be seen the pyne is connected with the Tati Nadi which is a natural stream. So far as the vicinity is concerned, the river first of all runs through south to north, then at the junction between the river and the pyne in question, it flows in an easterly direction. The pyne runs due south and north although after leaving village Nemdarganj it runs to the east for a short distance, then takes again in a northerly direction, then again towards the east, goes under the road through a culvert, then due east and is connected with another pyne which is in the plaintiffs'' village Audahe.
The defendants by their written statement denied that the plaintiffs had any right to use the water flowing through the pyne; but before this Court, it is not denied that the plaintiff has the right to use the water and it is equally clear that the defendants also have a right. The only question which arises before us is the method of user by the defendants. Evidence was called by defendants that for a very long time past, in fact throughout the memory of the witnesses, the defendants have been in the habit of raising a grandi in the pyne which was the only method by which they could force the water through the cutting in the bandhs and thus to fill the reservoir. Unfortunately in dealing with the case, the learned Subordinate Judge has entirely disregarded this evidence and has not mentioned it in his judgment and this Court is therefore in a somewhat difficult position not knowing what the view of the learned Subordinate Judge is upon this part of the oral evidence in the case.
Like so many other of these water channels their origin is unknown. The possibility is that it was built at a time when the respective villages of the plaintiffs and the defendants were under one person.
A commissioner was appointed in the case and the conclusion at which he arrived was generally in favour of the plaintiffs. The learned Subordinate Judge has decided the case almost entirely upon the documentary evidence which consists of the irrigation records of village Pyne published in 1909 and the irrigation record of both villages finally published in 1910. According to the lastnamed record in Mauza Pyne the Artal bandh No. 323, that is to say, the bandh which is the western boundary of the defendants'' village, is cut and water is thus taken into Khasra No. 318, There is another pyne which comes from the Tati Nadi a little to the east of the pyne in question and flows between plots Nos. 346, 337 and 329 on the west and 347, 351, 352 and plots Nos. 329 and 330 into the reservoir No. 318; and one of the contentions of the plaintiffs is that the defendants'' reservoir No. 318 is filled in this manner. In this connexion it should be stated that the land of these villages is lower towards the east and to the north, that is to say, there is a decline towards the north and to the east. For the purpose of allowing the water to flow from the Tati Nadi into the pyne in dispute a bandh is placed across the Tati Nadi admittedly by the defendants just east of the pyne which I have just mentioned and which the plaintiffs claim as the pyne which fills the reservoir of the defendants. The plaintiffs claim that the bandh which the defendants placed across the Tati Nadi is for the purpose of filling this pyne, whereas the defendants contend with considerable force that without the bandh which they erected across the Tati Nadi the water would not flow into the pyne which is in dispute.
An elaborate argument has been addressed to us supporting the various contentions of the parties and one of the matters which has been debated before us is the question of whether the defendants do repairs to this pyne as they allege. In my judgment although the solution of the latter question may throw some light upon the respective cases of the parties, it really gives very little assistance in this case. I have stated that the plaintiffs'' case is based on the alleged right of easement to have the uninterrupted flow of the water through this pyne; but the argument before this Court followed on somewhat different lines. The first point that was argued is the question of what are the respective rights of the village which are on the banks of this pyne. Vaughan Williams, L.J., in the case of Bailey & Co. v. Clarke Son and Morland [1902] 1 Ch. D. 649, having stated the rights of a riparian owner of natural stream goes on to state the position as regards an artificial water course. He states:
If on the other hand, this is an artificial water course, any right to the flow of the water must be based on some grant, whether in the nature of an easement or otherwise. The basis of every right to the flow of the water must be an agreement, expressed or presumed from the user with the owners of the land through which the stream runs. This being so, it is plain that the circumstances might be such as properly to lead to the inference that the watercourse was originally constructed on the terms that each of the riparian proprietors should have the same rights as the riparian proprietors upon a natural stream would have and no more,
The rights of the riparian owner to which the Lord Justice refers are stated as follows:
He 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 case of deficiency, upon proprietors lower down the stream, and further he has right to the use of it for any purposes, 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 or divert water for the purpose of irrigation.
The statement of the law above is equally applicable to India; Ramessur Prasad Narain Singh v. Koonj Behary Pattuk [1878] 4 Cal. 633. The position therefore appears to be having regard to the position of this pyne that the rights of the respective villages of the defendants and plaintiffs would be that of an ordinary riparian owner over a natural stream and the whole matter in this case, in my judgment, resolves itself into the question of whether there is any evidence in the case of user which would be evidence of an agreement as regards the user expressed or presumed. Naturally the plaintiffs in the action base their case on the strict reading of the irrigation record to which I have referred. They argue that as the irrigation records state that the bandh on the western boundary of the defendants'' village may be cut, the defendants are limited to that form of user and are not allowed to erect a grandi in the pyne. It is true there is no mention in any of the documentary evidence of any right to place a bandh across the pyne, but however once it has been established that the defendants are in fact entitled to use the water of the pyne it is difficult to see how the mere fact that the grandi is not mentioned in the record could restrict the defendants'' right as regards the method. Once having established the right in the pyne it would seem that the defendants have the rights of an ordinary riparian owner and that admittedly includes a right to dam up the stream always provided that it does not prevent the flow of water to the villages of the other riparian owners.
That it has been the practice of the defendant to erect grandi in the channel has been shown by the evidence of the witnesses and by the signs of such erection found by the commissioner during his inquiry. At the same time it has to be remembered that the defendants have another channel by means of which water can be let into their reservoir, No. 318 and the irrigation papers show that this is the chief object of that channel though owing to the slope of the land, it is doubtful whether it would fill the reservoir except when there is high flood in the river. Water is taken through cuts in the embankment of pyne No. 118 as an auxiliary supply. Under these circumstances it is plain that the right to increase the supply through cuts in the embankment, aided by the erection of grandis must be a restricted right and must not have the effect of diminishing the supply of water to the plaintiff''s reservoir.
To prevent disputes in future and in order clearly to define the rights of the parties it is necessary and desirable to draw up a scheme for the use by the defendants of the water of pyne No. 118. The following scheme would seem to be suitable and proper.
The defendants will continue to have the right to cut the embankment when necessary in order to draw water from the pyne, but they will be allowed to erect a bandh or grandi in order to increase the supply through the cuttings only at intervals, of a fortnight. Such bandh or grandi when erected shall not exceed two feet in height and shall be maintained in position in each instance for the space of not more than a day. At the end of twenty-four hours the bandh or grandi will be demolished and removed and no further bandh or grandi shall be erected in the pyne until a fortnight has elapsed. Subject to the above rights of the defendants, the plaintiffs will have the right to the uninterrupted flow of water through the pyne.
A decree will be drawn up stating the rights of the parties according to the above scheme, and the appeal will be allowed to the above extent.
Each party will pay its own costs.
There will be liberty to the parties to apply to this Court as regards the height of the grandi as well as the period during which the grandi is to be erected.
Adami, J.
I agree.