M KANNA Vs. T CHATHU

JUDGEMENT

(1.) THE appellants in this second appeal are the plaintiffs in a suit for mandatory injunction to direct the defendants to remove the construction made by them across the Nochipully amsom and for a permanent injunction to restrain them from constructing any dam across the said stream at the site or at any other place so as to injuriously affect the plaintiffs' rights in respect of the supply of water from the said stream for the irrigation of their lands. THE plaintiffs are the owners of certain paddy lands which lie adjacent to the which at the site flows from east to west. THE water from this thodu was being used for irrigation of the paddy fields of the plaintiffs, and it is the case of the plaintiffs that without such facilities for irrigation from the said thodu it is not possible to cultivate paddy in their paddy fields. THEy claim the right for continued supply of such water from the stream without interruption or obstruction or even any diminution in the volume of supply. THE first defendant is cultivating certain lands belonging to the second defendant lying in the left bank of the above stream. THE land of the defendants lies at a higher level and the stream flows down from that point to where it touches the plaintiffs' property. According to the plaintiffs, first defendant, in spite of the protest of the plaintiffs, attempted to construct a granite dam across the stream at a spot about 60 yards higher up the stream from the plaintiffs' dam and the effect of such construction would be to impede the free flow of water from the higher reaches of the stream to the portion of the stream lower down adjacent to plaintiffs' property. THE plaintiffs have themselves constructed a dam at the point where the stream flows adjacent to their property so as to collect and divert water for the purpose of irrigation of their paddy fields. THE action of the first defendant in attempting to put up a granite dam and thereby impede the free flow of water to the lower reaches of the stream is characterised in the plaint as wrongful and illegal and therefore liable to be restrained by an order of injunction. A mandatory injunction is prayed for removal of the obstruction already caused. THE first defendant is the main contesting defendant, the second defendant adopting the contentions of the first defendant. In his statement the first defendant denies the case of the plaintiffs that there was a granite dam in existence for many years adjacent to plaintiffs' property as contended by the plaintiffs and contends that the defendants were not putting up any new construction by way of a dam across the stream as contended, that at that point there was already a dam and what was being done was only to strengthen that dam since temporary dams are liable to be washed away seasonally, that the construction of a dam at the point where the first defendant was constructing was necessary for the purpose of irrigating his own paddy fields, that such diversion was being resorted to in all the previous years and that the plaintiffs have no cause of action against the defendants. After trial the court found that the dam said to belong to the plaintiffs situated across the stream adjoining his paddy fields was in existence for many years, and that the first defendant had made considerable progress in the construction of a granite dam as alleged. THE court also found that the plaintiffs were badly in need of water from the stream for successfully raising each crop and that defendants also required the water from the stream for the purpose of irrigation of their properties, that the 1st defendant as a higher riparian owner can resort to any particular method of diversion of water but only without materially diminishing flow of water along the stream and that the dam in question which the first defendant had constructed adversely affected the plaintiffs to a considerable extent. In view of this the trial court gave a decree to the plaintiffs restraining the first defendant and his men from diverting the water from the dam or any other mode of diversion which would injuriously affect the plaintiffs' right to the water in the stream and also issued a mandatory injunction directing the first defendant to remove the construction of the dam, so far as made, across the I may mention here that during the course of the trial a commissioner after visiting the spot filed three reports Exs. C1, C2 and C3. THEse indicate the progress of the work of construction of the dam on the relevant dates the commissioner visited the spot. THE last report Ex. C3 indicates that at that time the construction of the dam was practically over. THE height of the dam at the centre was 4'1" and at the two sides 4'9" and 4'11". He further found that on this masonry construction temporary dam was also put up to collect water and the height of the temporary construction so put up over this masonry dam was 2' 2". Possibly this was necessary because the paddy field of the defendants was at a very much higher level than the stream bed and going by the evidence in this case it would appear that it was about 5 ft. above the level of the stream bed. If so, it would appear that the only way of taking water which was resorted to by the defendants was of raising the dam so high as to get water collected above the level of the properties of the defendants. That apparently is the reason why the dam had to be raised further above the masonry construction which at the middle was already 41" high.

(2.) THE first defendant who was aggrieved by the decision of the trial court granting injunction against him appealed to the Subordinate judge's court and that court modified the decree of the trial court by directing that the first defendant should be allowed to divert water from the thodu at the dam site constructed by him for three days a week, on Saturdays, sundays and Mondays, by putting up a temporary dam made of mud, twigs and leaves on the granite construction made by him and that the temporary dam so put up was to be opened up by him and the water allowed to flow out fully and freely on the remaining days of the week. In making this direction the court below was influenced by the fact that the decree passed by the trial court practically placed the first defendant at the mercy of the plaintiffs. THE lower appellate court also, no doubt, agreed with the trial court that the dam of the plaintiffs had been in existence at least before the year 1937 and water was being taken from this dam site for the cultivation of the plaintiffs' property. It was also found that there was no dam at the place where the first defendant had constructed the basement of the new dam.

(3.) THE plaintiffs as well as the defendants are riparian owners, the properties of defendants being adjacent to the stream at the higher reaches. THE water in such a natural course is open to use by the riparian owner for all primary purposes, irrespective of diminution in the quantity of water resulting from such use. Domestic use, use for cattle, and such other purposes are primary purposes. But in diverting water for secondary purposes such as for irrigation or for running a mill the use by the riparian owner is subject to the restriction that such use shall not cause material diminution in the supply in the stream to other riparian owners. THE rights of the other riparian owners should not be sensibly injured. Any riparian owner who seeks to use the water of a natural stream must use it reasonably keeping in mind that he is not entitled to exclusive user of the water of the stream and that the fundamental consideration is that the user by the other riparian owners should not in any way be prejudiced by the way he diverts the resources to his own purposes. S. 7 of the Indian Easements Act recognises this right of every owner of immovable property. S. 7 (b) recognises the right of every owner of immovable property to enjoy, without disturbance by another, the natural advantages arising from its situation subject to any law for the time being in force. One of the natural advantages that is enjoyed by an owner of property which is situate adjoining a stream is to exploit the water of the stream for his own purposes subject to the limitation to which I have already referred. Illustration 0) in S. 7 runs as follows: "the right of every owner of land abutting on natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land, and for the purposes of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners. " In the former part of this illustration the primary use is referred to. THEre is no limitation in the matter of the primary use. In the latter part of the illustration the secondary use is referred to. But that is qualified, that qualification being that no material injury to other like owners be caused. What exactly would be material injury to other riparian owners is the question which would than arise. As I said earlier, material injury would be caused to other riparian owners if their right to use the water of the natural stream, whether for primary or for secondary purposes is in any way materially affected. It would be materially affected if there is perceptible diminution in the supply of water to them. Such injury may arise by reason of the volume of the water diverted by the upper riparian owner and also the mode employed by him to divert such water.