HANUMAN PRASAD Vs. MENDWA

JUDGEMENT

(1.) This is a plaintiffs appeal and arises out of a suit brought by them against the defendants-respondents to claim Rs. 600 damages and for an injunction restraining the defendants from ever raising their dam and sluices to such an extent that the level of water under the plaintiffs hydro flour mills may become less than eleven inches from the last stair of the ghat and to order the defendants to lower down their dam and sluices. The plaintiffs case was that they are the zamindars of mahal Sarju Prasad, village Kapseti, through which the river Paisuni flows. They have had their water mills on the bank for the Last 20 years which are worked by the stream. The defendants have also got their mills in village Bankat two miles down on the bank of the same river. In September 1929, the defendants raised their dam and sluices thereby sending back the water and causing obstruction to the working of the plaintiffs mills. The water had accumulated under the plaintiffs hydro flour mills to the extent of one foot and seven inches over and above the ordinary level and consequently out of the plaintiffs five mills only one worked in November 1929 and since April 1930 only three have been working. The water used to flow formerly 11 inches lower under the last step of the ghat. The defendants contended that the plaintiffs mills had been working for the last 15 or 16 years, that the plaintiffs had not acquired any right of easement that the defendants had not done any act by which any damage might have been caused to the plaintiffs and that the land under the plaintiffs mills had depressed. Both the Courts below have found on documentary and oral evidence that the defendants had raised their dam and sluices. Mr. Chandra Mohan Nath Raina, Tehsildar, Mr. Maula Bakhsh, engineer, and Bhagwan Saroop, overseer, were produced. Their evidence showed that on account of their dam by the defendants, water accumulated at the causeway. The Munsif also inspected the locality and he came to the conclusion that the defendants clam as well as sluices had been recently raised. The learned Additional Subordinate Judge agreed with the finding of the learned Munsif.

(2.) It was also found by both the Courts below that on account of the accumulation of water near the blades of the plaintiffs mills, the mills did not work properly. On the evidence of Moti Ram Engineer. Irrigation Department, the lower Court found that on account of the raising of the dam by the defendants the water level of the stream near the plaintiffs mills became higher than the natural level. The learned Additional Subordinate Judge has remarked: The above remarks clearly show that if the defendants be allowed to work their mills with the raised dam and sluices the machinery of the plaintiffs mill would not work efficiently.... It is therefore proved to my satisfaction that obstruction is caused to plaintiffs mill on account of raising of the defendants dam.

(3.) The trial Court had decreed the plaintiffs suit and awarded Rs. 164 damages also. The learned Additional Subordinate Judge on appeal dismissed the suit on the finding that the plaintiffs wanted to divert the water of a natural stream for the purpose of working five mills for which the plaintiffs had no natural right. He was of the opinion that the plaintiffs had no natural right to dam up the river and to divert the flow of the water for the working of the mills. As would appear from the plan prepared by the engineer, the hydro flour mills of the plaintiffs are situated inside the natural stream and the water level is affected there by the raising of the defendants dam and sluices. There is no artificial channel apart from the natural stream. Every riparian proprietor has a natural right to use the water of a stream which flows past his land equally with other proprietors, to have the water come to him undiminished in flow, quantity and quality and unaffected in temperature, and to go from him without obstruction. The law on the subject has been laid down in Wright V/s. Howard (1823) 1 L.J. (OS) Ch. 94, at p. 99: The law on this subject is extremely simple and clear. Prima facie, every proprietor of land on the banks of a river is entitled to that moiety of the soil of the river which adjoins to his land; and the legal expression is, that each is entitled to the soil of the river usque filum aquae. Of the water itself, there is no separate ownership; being a moving and passing body, there can be no property in it. But each proprietor of land on the banks has a right to use it; consequently, all the proprietors have an equal right : and therefore, no one of them can make such a use of it, as will prevent any of the others from having an equal use of the stream, when it reaches them. Every proprietor may divert the water for the purpose, for example, of turning a mill; but then, he must carry the water back into the stream, so that the other proprietors may in their turn have the benefit of it. His use of the stream must not interfere with the equal common right of his neighbours; he must, not injure either those whose lands lie below him on the banks of the river, or those whose lands lie above him. Injury may be done to the proprietors below him, by diminishing the quantity of water which descends to him : it may be done to those above him, by turning the water up on then, so as to overflow their lands, or to disturb any of the operations in which they may have occasion to use the water as for example by diminishing the extent of its fall.