DEBI PERSHAD SINGH Vs. JOYNATH SINGH

JUDGEMENT

(1.) THE appellants are the proprietors of mehal Ramgurh, including three mouzahs, through which there runs a hill stream or nullah, there known as the Kudra, its course being from south to north. Before entering Ramgurh from the south, the Kudra intersects the adjoining mouzah of Chikhuria, belonging to the Maharaja of Dumraon; and, on the north, it passes from Ramgurh into mouzahs Hata, Khaja and Narainpur, which are the property of the respondents in this appeal.

(2.) THE appellants at one time used, for purposes of irrigation, water diverted from the Kudra, which was stored in a tal or reservoir in Ramgurh, before being1 distributed over the surface of the land. The diversion was made within mouzah Chikhuria, by the erection of a bandh or dam upon the bed of the stream belonging to the Maharaja of Dumraon, from which the water was conducted by a channel or cut, passing at first through the lands of Chikhuria to the appellants' tal. The bed of that channel or cut was on a higher level than that of the surface of the water of the stream in its ordinary flow. Before the end of the year 1884, the appellants made some alterations upon the structure of the dam, in consequence of which two separate actions were brought against them, concluding for its removal, one by the present respondents, and the other by the Maharaja of Dumraon.

(3.) THESE litigations were not finally disposed of until November 1887. Some time thereafter, the appellants placed a dam across the Kudra within their own property, and made a new channel leading through it from the stream to their reservoir. The dam was destroyed by the respondents; and the appellants, in consequence, made an application against them to the Criminal Court, which was rejected on the 5th December 1888, upon the ground that they ought to establish their rights in the Civil Court. The present suit was, in consequence, brought before the Court of the Munsif at Sasseram on the 9th January 1889.