MAHADU ROWJI KATE Vs. JIJAI LAXMAN MISAL

JUDGEMENT

(1.) The question in this appeal is whether the plaintiffs-respondents are entitled to the removal of the dam A in the plan Exh. 106 made by the defendants- appellants so as to allow the plaintiffs-respondents the amount and flow of water which they enjoyed previously before the erection by the appellants of the dam A at their dam B lower down.

(2.) The question has been complicated by an element which has no bearing on the legal rights of the parties. The stream has its origin in hills in the boundary of Bhambe, then divides or almost divides it from the boundary of Kushi and finally flows south-east through Kushi. The lands to the north of the stream in question are up to a certain point in the possession of the villagers from Bhambe to the north while those to the south are enjoyed by the villagers of Kushi. The struggle for water in the arid Deccan is, therefore, intensified by this village rivalry. But thequestion as to the exact boundary between the two villages and how far this stream falls within the limits of one boundary or the other at the debatable points is irrelevant to this suit.

(3.) The necessary facts as found by the lower Courts are short. In the year 1911 the present appellants from Bhambe to the north of the stream filed a suit against the present plaintiffs-respondents from Kushi to its south for a declaration that they were entitled to a half share in the water of the present dam B by enjoyment for fifteen days every month. That claim was resisted by the present plaintiffs- respondents who succeeded in establishing their sole right to the water of the dam B including the cistern they had erected to the south within Kushi limits. Both the lower Courts have found that the dam A is not ancient as the appellants contended but was erected by them during the pendency of that litigation in the year 1913, within twelve years of the present suit by the respondents, and next that the dam A caused a material obstruction and reduction in the water at the dam B.