GHULAM MOHIDEEN KHAN SAHIB Vs. SECYOF STATE

JUDGEMENT

(1.) The plaintiff is the appellant. It has been found concurrently in this case by both the lower Courts that-the northern branch of the suit channel exclusively belongs to the mittadar and the southern branch to the Government. The appellant says that this finding; should not be accepted because the documents have been misconstrued by the lower Courts. My attention was drawn to the important documents in the case, Ex. FF, M, N and P, etc. I cannot say that the conclusion arrived at by the lower Courts is not warranted by the inference that may be drawn from these documents. So far as this part of the argument is concerned, there-is no question of law.

(2.) The next question is whether the plaintiff is entitled to water from the southern-branch belonging to the Government as-a riparian owner. The question that he is so entitled to it was not raised in the pleadings nor was there any issue on it, but the point was argued before the District Munsif and it was overruled by him. In the appellate Court it is stated by the learned Judge that "this claim was not put forth in the lower Court at all." Strictly speaking this statement is-not quite accurate. But when the learned Judge says that the decision of the question depends upon the facts he is on safe grounds. The southern branch as pointed out by the learned Judge is evidently an artificial channel. The question of law raised is whether the party-can claim the right of a riparian owner in an artificial channel. My attention has been drawn to the decisions in Krishna Dayalgir V/s. Bhawani Koer 1917 Pat. 65, Maung Bya V/s. Maung Kyi Nyo 1925 P.C. 236 and Narasimhalu V/s. Bhadrayya 1933 Mad. 10. None of these lays down as an absolute proposition of law that a riparian owner can claim the right to use the water in an artificial channel just in the same way as the riparian owner can claim to use it with respect to a natural stream. The right can be claimed only under such circumstances. It is not an absolute right as in the case of the riparian owner having lands abutting a natural stream. As pointed out by the Privy Council in Maung Bya V/s. Maung Kyi Nyo 1925 P.C. 236 Any right of the owner to the flow of the water must rest on prescription or grant from or contrail with the owner of the land from which the water is artificially brought.

(3.) In this case it has been found by the District Munsif that there is no prescription, and it has not been shown that the plaintiff is entitled to the right by prescription. The finding is that the plaintiff is entitled to use the northern channel by agreement with the Government and that the Government is to use the southern channel. If so, there is no room any further for the application of the principle that the plaintiff is entitled to use the water of the Government channel as a riparian owner. The Government as well as the mittadars have agreed that the Government water should be used in a certain way. That finding must now be accepted. In the face of that finding, there is no room for argument that the plaintiff is still entitled to claim the use of the water in the Government portion of the channel as a riparian owner. It was on this finding that the District Munsif dismissed the plaintiff's claim. I think his decision is right. In the circumstances I disallow this argument and dismiss the second appeal with costs. Following the decision in the above second appeal S.A. No. 703 of 1930 is also dismissed with costs.