HANIF Vs. CHAMARI SAO

JUDGEMENT

(1.) The dispute in this case relates to the hiking of water from the Nala existing in village Bajrahi in plot Nos. 158, 153. 106, 107, 97, 11 and 6. The Nala originates on the south from river Morhar and, in the course of its flow from south to north, passes first through village Bajrahi, then through village Bharhi and thereafter it exhausts itself in village Ghortgbat. The defendants are tenants of village Ghorighat and the plaintiffs, who are appellants here, are the residents of village Bajrahi. The plaintiffs in their plaint prayed for the following reliefs:--

(2.) It is not defied that originally, at one point of time, both the villages Bajrahi and Ghorighat were owned by a common Zamindar, Rameshwar Nath Singh. It appears that on the 5th Magh, 1274 Fs., corresponding to the year 1867, Ramesh-war Nath Singh as the proprietor of village Bajrahi granted a Wajngast Sanad in favour of one Bibi Meharan, described therein as Malik Jagirdar Lakheraj Mauza Ghorighat, pergana Kunda. The original Sanad is in Hindi and has been brought on the record as Exhibir A. The official translation of: this Sanad reads as follows:--

(3.) The trial Court in dealing with this controversial part of the ease has in paragraph 16 of its judgment found "that the present Mohana at Bajrahi was constructed" be the residents of Ghorighat. So the persons of Bajrahi "are not entitled to get the Mains filled up beyond the boundary of Bajrahi village". In appeal, this finding does not seem to have been challenged; on the contrary, from the discussion made in paragraphs 7, 21 and 28 of the judgment under appeal, it apprars that it has been affirmed. That being so, both the Courts below have proceeded in disposing of the ease on the assumption that it is an artificial channel constructed by the defendants under the grant made to them in the aforesaid Sanad (Ex. A) and that, from time immemorial, the defendants have been using the water of this Nala for irrigating the lands of their village. Mr. Lalnarain Sinha appearing for the plaintiff-appellants in this Court has not challenged any of these findings come to by the Court of facts. Therefore, their case has to be judged on the footing that the Nala or the artificial channel was constructed by the defendants by virtue of the grant made to them under the Sanad Now, in law, it is well established as pointed out in Kensit v. G. E. Rly. Co., (1884) 27 Ch D 122,. while quoting with approval the observation of the. Privy Council in Rameshur Pershad Narain Singh v. Koonj Behari, (1878) 4 AC 121 (126), that "there is no doubt that the right 'to the water oi a river (lowing in a natural channel through a man's land, and the right to water flowing to it 'through an artificial watercourse constructed on his neighbour's land, do not rest on the same principle In ''the former case each successive riparian proprietor is, "prima facie, entitled to the unimpeded flow of the water" in its natural course, and to its reasonable enjoyment as "it passes through his land, as a natural incident to his "ownership of it. In the latter, am right to the flow of "the water must rest on some grant or arrangement, either "proved or presumed, from or with the owners of the lands "from which the water is artificially brought, or on some "Other legal origin:' that is to say, in one ease it would "be what we call by grant or prescription; in the other ease "it is natural right from the natural stream flowing "through a man's land which gives him the rights incident "to the ownership of the land." The same view has been expressed in Coulson and Forbes on Waters and Land Drainage (6th edition) at p. 293 in these words:--