WAMAN BAPUJI Vs. CHANGU HAS PATIL

JUDGEMENT

(1.) In our opinion the Joint First Class Subordinate Judge A. P. was not entitled on the materials before him to vary the decree of the first Court in the manner he did; because it is impossible for a Judge without proper materials to form any opinion as to what will be the effect of a diversion in the natural flow of a stream. No doubt the riparian owner may put water that flows through his land to certain uses connected with his land and for that purpose he may be entitled to divert its course. But it must be done in such, a manner as not to inflict any material injury on the lower riparian owners.

(2.) We think therefore that the appellant is entitled to have determined an issue in these terms:-Whether after the removal of the sluice and the permanent closing of the opening in which it stood, there will he material injury to the plaintiff by reason of the diversion of the stream.

(3.) Parties will be at liberty to adduce evidence on this point.