DHARNIDHAR SAHU Vs. BHAGIRATHI SAHU

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal arising out of a suit for a declaration of their right to receive the surface water within the limits of village Kankili and flowing from Landabir, Brahmandei Khol and Amba Khol hills lying to the south of a tank known as 'Parana Bandh' belonging to the plaintiffs and measuring 13 acres 62 decimals in Khata No. 34 of Mouza Patharkumbha in Dhenkanal district. The defendants are some of villagers who own lands which lie between the hills from which the water flows and the tank of the plaintiffs. Admittedly, these lands of the defendants are on a higher level than the tank of the plaintiffs, and water flows naturally by force of gravitation northwards towards the tank. The plaintiffs' further case is - - and this is not denied by the defendants - - that their ancestors dug a channel from the foot of the hills leading to the tank, which carried the water falling on the hills through the channel. The plaintiffs had acquired a prior right of irrigation of their lands lying to the north of the tank and an exclusive right of fishing in it. Disputes have been going on between theplaintiffs and the defendants regarding the distribution of the rain water for several years. In1945 the defendants opened a sub -channel fromthe old channel and diverted the water of theChannel westwards and dug a new channel to carry the water, thus diverted, to their own landsfarther north. The course of this new channel isdelineated as Ka to Kha in the plan attached tothe plaint. The plaintiffs' complaint is that the construction of the new channel has resulted in a substantial diminution of the customary flow of water into the 'Purana Bandh' and that the defendants have thereby infringed the plaintiffs' easementary right to receive water from the hills. The plaintiffs also prayed that the diversion created by the new channel should be closed. The defendants denied that the plaintiffs owned the original channel or the tank in question and pleaded that even after the opening of the new channel there was sufficient water left to feed the tank and that no diminution in the volume of water has been caused. It is, in fact, asserted that the volume of water going into the tank is so large that it often caused damage to the lands in the vicinity of the Bundh. The defendants disputed the plaintiffs' claim to receive the surface water that flowed over their own lands known as 'Bahel lands'.

(2.) BOTH the Courts below have found, concurrently, that the surface water of the Bahel lands does not follow any defined course before reaching the tank and that it passes through the paddy fields belonging to the defendants and other villagers. It is the surplus water that ultimately finds its way into the tank. The Courts have also found that the defendants own about 500 acres of Bahel lands which admittedly lie on a higher level to the south of the tank from which direction the water flows. While, therefore, unholding the claim of the plaintiffs to take water through the existing channel, they have negatived the plaintiffs' further claim by way of easement, to receive all the overflow passing over the defendants' lands. The Courts have accordingly directed the defendants to close up the cut made by them in the original channel at the place marked 'Ka' which caused the diversion, but declined to issue a mandatory injunction against them so as to permit the flow of surface water into the plaintiffs' tank.

(3.) IT was assumed in the Courts below that the Easements Act (5 of 1882) applies to the area from which the parties come. Section 17(c) of the Act expressly says that no easement right can be acquired to surface water not flowing in a stream and not permanently collected in a pool, tank, or otherwise. Illustration G to Section 7(b) also speaks of the right of every owner of land to collect and dispose, within his own limits, of all water under land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel. Two principles thus emerge: firstly, that an owner of land is entitled to collect and impound all surface water passing over his land, and secondly, that no prescriptive right can be acquired in respect of such water by the servient owner. In other words, unless the water flows through a defined channel no right can be acquired either by lost grant or prescription to the use of such water. Every landowner has a natural right to collect and retain upon his own land the surface water passing over his land and put it to such use as he may desire. He has a right to discharge the surplus water upon his neighbour's lands lying at a lower level. But there is no reciprocal right by the servient owner to compel the dominant owner to discharge a particular volume of water. In Mt. Sarban v. Phudo Sahu', AIR 1923 Pat 65 (D) the plaintiffs claimed a prescriptive right to irrigate their lands from the surface water flowing from the defendants' field which had been bunded up. It was held that the owner of the servient tenement cannot compel the owner of the dominant tenement to use the water in a particular way or to compel him not to interfere with the surface water accumulating on the land, even if its exercise should be for the benefit of the servient owner. The above principle has been recognised in 'Abdul Baqi v. Sheo Prakash Singh', AIR 1928 Pat 279 (E); 'Henry Hill and Co. v. Sheraj Rai', AIR 1922 Pat 9 (P) and 'Mahabir Sahu v. Ram Saran Sahu', AIR 1918 Pat 493 (G). The chief characteristic of surface water is that its identity and existence as a water body cannot be definitely ascertained and it cannot be said to belong to any particular person. No claim can, therefore be made to such right either as a natural right or as an easement by prescription. The right to the ownership of the water is an incident to the ownership of the land. In 'Rawstron v. Taylor', (1855) 11 EX 369 (H), Parke, B. gave the reasons why no right could be obtained over surface water. He observed; - -