ALLAM NARASIMHULU Vs. GUTTA BHADRAYYA

JUDGEMENT

(1.) These are connected appeals and arise out Of a suit brought by plaintiffs (respondents) for a declaration that only the ryots of the lands within the ayacut of Solavani and Karicherlavari tanks are entitled to nee the water flowing through the suit Solavani Channel and that the defendants have no right to use that water for cultivating as wet their lands on either side of the channel and for an injunction restraining them from taking the water of that channel to their lands for wet cultivation by putting up cress bunds or palmyrah spouts and also for directing the defendants to restore the channel to its original condition. Both the lower Courts have found the plaintiffs contention to be substantially true and passed a decree in their favour granting the reliefs asked for by them subject to a (light qualification. Second Appeal No. 470 of 1920 has been filed by the 12 defendant, and S.A. No. 334 of 1920 by some of the other defendants.

(2.) Plaintiffs and others own about 400 acres of mamool wet land under the ayacut of Solavani and Karicherlavari Tanks. The source of supply for these tanks is Tammileru, which is doubtless a natural stream. From that stream the suit channel called Solavani Channel was cut in order to serve as a feeder to the aforesaid tanks. After these tanks become full, the water flowing through the suit channel used to be taken to two other tanks mentioned in the plaint. There is another tank called Kotta Cheruvu, to which water is supplied from Tammileru by means of a branch from Dendulur channel. It is found by both the. courts below that the defendants contention that the water from Tammileru flows through, the suit channel into Kotta Cheruvu is false. Most of the defendants lands lying on either side of the suit channel have been found to be dry, and it is only since 1917 or 1918 that the defendants have been trying to convert those lands into wet. The 12 defendant's land alone is found to be mamool wet, but the finding of both the lower Courts is, that that land is fed by Kotta Cheruvu and that no right to take the Water of the suit channel irrigating that land has been established. There is no doubt that thae plaintiffs and others, who own wet lands under the ayacut of Solavani and Karicherlavari tanks, have permanent rights of occupancy therein, and the suit channel is a feeder for those two tanks. After a full consideration of the evidence and circumstances of this case, it is found by both the courts below that the ryots holding wet lands within the ayacut of Solavani and Karicherlavari tanks are entitled to the exclusive user of the water flowing through the suit channel and to the unobstructed flow of water through the same, in order to fill up the aforesaid tanks for the purpose of irrigating their wet lands within the ayacut. As observed by the learned District Munsif the rights So acquired can be traced to an implied grant by the zemindar and by reason of the long enjoyment of the entire quantity of water flowing from the suit Channel in the aforesaid manner, as of right, an easement by prescription or a customary right has been acquired even as against the zemindar. These findings are amply borne out by the evidence end must be accepted in these second appeals.

(3.) It is, however, contended that the suit channel should be deemed to be a natural stream and, therefore, the defendants, who own lands on either side of it, are entitled to riparian rights which could not be lost by mere non-user. The courts below have held that the suit channel is not a natural stream, but only an artificial water-course. That finding is challenged by setting up the contention that as the suit channel flows out of Tammileru which is a natural stream, it must also be taken to be a natural stream. But the opinion expressed by text- writers is against this contention. An artificial stream is a stream which flows at its source by the operation of men, or, if it flows at its source by the operation of nature, flows in a channel made by man. In the present case, water is made to flow in an artificial channel from a natural stream and such a channel is an artificial stream. (Vide page 327 of the Law of Riparian Rights by L.M. Doss). Where a stream is artificial and flows in a channel made by artificial means through the lands of adjoining proprietors, the rights of such proprietors are not prima facie the same as those of proprietors on the banks of natural streams. The right to the enjoyment of a natural stream of water belongs to the proprietor of the adjoining lands as a natural incident to the right to the soil itself. He has a right to have it come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction. Such a right in no way depends on prescription or any presumed grant. But in the case of artificial water-courses the acquisition of rights in them must be by grant or prescription (Vide pages 106 and 107 of the Law of Waters by Coulson and Forbes, 4 Edn.). The same view is expressed in Gale on Elements (10 Edn.) at pages 274 and 275. The learned author says that in the case of an artificial water-course, any right to the flow of water must rest on some grant or arrangement, either proved or presumed, from or with the owners of the lands from which water is artificially brought or on some other legal origin. The contention of Mr. Raghava Rao for the appellants seems to be that by ret son of the artificial channel having been cut from a natural stream, the owner of lands on either side of the channel must be deemed to have the same riparian rights as in the case of natural streams. But I think it is too broad a proposition which practically obliterates the distinction between a natural stream and an artificial watercourse; and even the decisions relied on by him do not support such an unqualified proposition. What those decisions appear to lay down is, that even in the case of an artificial water course, special circumstances may be shown to exist so as to confer all such rights as a riparian owner would have had in the case of a natural stream. In Nuttal V/s. Bracewell (1867) 2 Ex. 1 : 4 A.C. 714 : 36 L.J. Ex. 1 : 12 Jur. (N.S.) 989 : 15 L.T. 313 there were special circumstances for finding in favour of the acquisition of riparian rights in respect of an artificial stream. As a result of an arrangement between two riparian owners of lands abutting a natural stream, there was a diversion of the water of the natural stream through an artificial channel, ultimately returning the water to the natural stream without doing any injury to any one. It was considered that it was within the competence of a riparian proprietor to grant a portion of his rights to another, provided, the latter did not make an unreasonable use of the water so as to cause sensible injury to the higher or lower-down proprietor. In this case reference was made to Sutclife V/s. Booth 32 L.J.Q.B. 135 : 9 Jur. (N.S.) 1037 as an authority for the position that an artificial stream may be on the same footing as a natural one as regards rights of riparian proprietors. But it is clear from the decision in Sutclife V/s. Booth 32 L.J.Q.B. 135 : 9 Jur. (N.S.) 1037 that in order to acquire all the rights of riparian proprietors, it must be shown that a water-course, though artificial, was originally made under such circumstances and so used as to give the rights owned by riparian proprietors in respect of a natural stream. There is nothing in the decision of the Patna High Court reported as 43 Ind. Cas. 235 Krishna, Dayal Girl V. Bhawani Koer 43 Ind. Cas. 235 : 3 P.L.W. 5 : 3 L.P.J. 51 which goes beyond the limitations prescribed in the aforesaid English decisions. The facts established in that case led to the inference that even in respect of the artificial water course rights incidental to a natural stream have been acquired. Even in the decision in Yesu Sakharam Pujari V/s. Lodu Nana Savant 101 Ind. Cas. 330 : 51 B. 243 : 29 Bom. L.R. 291 : A.I.R. 1927 Bom. 251 the same principle has been adopted. The ordinary rule that in the case of an artificial watercourse any right of the owner to the flow of the water must rest on prescription of grant from or contract with the owner of the land from which the water is artificially brought was held to be subject to a qualification which, as laid down by the Privy Council in Maung Kya V/s. Maung Kyi Nyo is as follows: There is, however, a well-established principle of law, namely, that a water-course originally artificial may have been made under such circumstances and have been used in such a way that an owner of land situate on its bank will have, all the rights over it, that a riparian owner would have if it had been a natural stream.