KAVERIKANA ISHWARA BHATT Vs. KERI ISHWARA BHATT

JUDGEMENT

(1.) PLAINTIFF is the appellant.The suit is for a prohibitory injunction restraining defendants 1 and 2 from sinking tanks in their property and also for a mandatory injunction to the 1st defendant to fill up the tanks already sunk by him in his property.One Kumblo Narasimha Nayak owned extensive properties on both sides of a poramboke channel(thodu)comprised in R.S.No.606/1,604/7;587/2 in Enmakaje village,Kasargode Taluk.Ext.C -2 is the plan showing the lie of the various properties on both sides of the above poramboke channel.By Ext.A -1 sale deed dated 23rd July 1940 the said Narasimha Nayak and other members of his family sold properties comprised in Sy.Nos.585/3 and 4,587/1,3,4 and 5 and also the southern portion in Survey No.604/6 to the plaintiff's father Krishna Bhatt.Properties comprised in Survey Nos.587/3,4 and 5 lie immediately south of the above channel and Survey Nos.587/1 and 604/6 lie to the north of it.Properties lying to the east and north of the properties conveyed also belonged to Narasimha Nayak and continued to be in his possession after the said transfer.The thodu flows in a south -western direction.Survey Nos.606/3,606/2,586 retained by Narasimha Nayak lie south and east of the said channel.At the time of transfer the water flowing through the channel was being used for the irrigation purpose by Narasimha Nayak.In the sale deed there are provisions conferring certain right to the plaintiff's father to use the water from this channel.Plaintiff's father is given the right to put up kattas(bunds ),across this thodu and take water as he likes.The vendor was allowed to take water for cultivation of any plot that may thereafter be reclaimed only without dimini­shing the water supply to the properties sold.The vendor is allowed to take water from this thodu for raising vegetables only in Survey No.606/2.1st defendant is a lessee of Survey Nos.606/3 and 2.2nd defendant is interested in Survey No.586.The 1st defendant dug a tank(marked T in the plan)in Survey No.606/2 about 158 feet east of this channel.Similarly,the 2nd defendant also has dug a tank in Survey No.586,140 feet east of the said thodu.These tanks have been dug deep.Tank T has a depth of 110 feet and tank T -1 a little less.Plaintiff alleges that as a result of the sinking of these tanks the quantity of water collecting and flowing through the poramboke channel has diminished to a considerable extent and this has affected the water supply to his fields included in Ext.A -1 sale deed.According to him,the water which would other­wise get collected in the thodu is withdrawn or percolated into these tanks.This is said to be an infringement of his right to water as a riparian owner and also under the terms of Ext.A -1 sale deed.Therefore,in the suit he claimed for a mandatory injunction to fill up these tanks and to restrain the defendants from sinking any further tanks in Survey Nos.606/2 and 586.Defendants 1 and 2 disputed the plaintiff's claim.They urged that they are entitled to sink tanks in their property and that the plaintiff has no right over underground water in their property and even if as a consequence of sinking of these tanks the collection of water and the flow in the poramboke channel got diminished the plaintiff in his capacity either as a riparian owner or on the terms of Ext.A -1 has no cause of action against the defendants.The extent of the right claimed under Ext.A -1 to take water from the poramboke thodu was also disputed by them.The trial court found that on account of the sinking of these tanks there is an appreciable reduction in the supply of water in the thodu and that the plaintiff has a right to restrain the defendants from using these tanks in such a way that they may affect the water supply in the thodu.Therefore,the trial court directed the defendants to fill up the tank T to a level equal to the level of the thodu.They appealed to the Sub Court.That court came to a different conclusion and dismissed the suit.Hence this second appeal.

(2.) THE plaintiff has urged his right in two ways,firstly as a riparian owner and secondly on the terms of Ext.A -1.The plaintiff as a lower riparian owner is entitled to the use of water flowing through Survey Nos.606 and 587/2 which is a natural thodu.It is a natural right.An upper riparian owner is not entitled to interfere with the flow of water through the channel except that the use of water from the thodu for his domestic purposes and irrigation may cause a reduction in such flow.In England abstraction of water for irrigation is not an use for natural purposes.But in India with a hot and arid climate water doubtless is indispensable to the cultivation of the soil and water for irrigation would be a natural want.Some Ameri­can courts have also taken the view that in places with arid climate it is a natural want(See Angell on Water Courses,Seventh Edition,para 121 to 128 ).The same is the restric­tion on the rights of an upper riparian owner over the water flowing through a defined underground channel.But,there is no property right in water flowing in underground undefined channels.An owner of a property is entitled to sink a well or a tank in his property for getting water and if this causes a withdrawal of the underground water from a neighbouring property or prevents the flow or percolation of water from his property to the neighbour's property the neighbour cannot have any cause of action.The law on this point is fairly well settled and I shall briefly refer to the leading decisions on this point.

(3.) THERE is also no satisfactory evidence to prove the plaintiff's contention that water used to come out of springs at the point situated in the middle of the thodu and that as a consequence of the defendant's action that has stopped.Even assuming that it is not actionable.Therefore,the plaintiff as a riparian owner has no cause of action against the defendants.