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Judgment
Kodandaramayya, J.—This Second Appeal is referred to a Bench by our learned brother Raghuvir, J., as it involves competing claims of easement of irrigating the agricultural lands between two villages.
The defendants are appellants in this appeal. The respondents-plaintiffs filed the suit in a representative capacity for a permanent injunction restraining the defendants and their men from causing obstruction to the plaintiffs in exercising their rights to take water from Pilli Vagu shown in the plaint plan to their lands comprised in various survey numbers by means of paccotah or oil engine.
The averments in the plaint may be stated thus:- The plaintiffs are the owners of survey numbers mentioned in the plaint and those lands abut the natural stream called Pilli vagu which flows in the limits of Bitragunta, coming from westwards and flowing eastwards and northwards and the plaintiffs are the riparian owners and are taking water to irrigate their lands as a supplemental source to their lands though their lands are registered under the ayacuts of Toorpu cheruvu and Padamata cheruvu. The defendants are powerful and rich cultivators and are trying to object and obstruct the plaintiffs to take water from Pilli vagu and the defendants have no such right and if the obstruction is allowed to continue the plaintiffs will suffer irreparable loss and injury and hence the suit.
The defendants resisted the suit contending that the plaintiffs are not riparian owners of the Pilli vagu and the said vagu is the source of supply to Kotha Cheruvu of Goravaram which irrigates the lands of the defendants and the defendants are the registered owners under the ayacut of the said tank and the plaintiffs are only registered ayacutdars of Toorpu cheruvu and Padamata cheruvu but not under the ayacut of Pilli vagu and the plaintiffs'' right to take water either on the ground of prescription or natural right is denied. It is also urged that a judgment in previous suit in O. S. No. 11 of 1865 on the file of District Munsif''s Court, Nellore operates as res judicata, and hence the plaintiffs are not entitled to any relief as their user will deplete the water flowing down in the said Pilli vagu and hence the suit is liable to be dismissed.
The trial Court framed relevant issues in para 4 of its judgment and found that the plaintiffs are riparian owners and they own lands abutting the Pilli vagu but they failed to prove their right by immemorial user or prescription but they have got natural right of easement under the Easements Act. However it was held that the plaintiffs have no regular authorised source of irrigation viz., Toorpu cheruvu and Padmata cheruvu and they cannot deprive such water source from Pilli vagu to the ayacutdars of Kothacheruvu who are the defendants, and accordingly it was held that the plaintiffs cannot use the water in Pilli vagu as a supplementary source in view of the classification of their lands as wet under ayacut of Toorpu cheruvu and Padamata cheruvu. It also held that the previous judgment in O. S. 11 of 1865 operates as res judicata and consequently dismissed the suit. On appeal by the plaintiffs, the appellate Court reversed the said judgment and held that the previous suit referred above does not operate as res judicata and except survey Nos. 113 and 118 the other survey numbers owned by other persons mentioned in the plaint are riparian owners and they have got a natural right to take water as supplemental source to their lands and they are entitled to take water only by manual operation such as paccotahs from Pilli vagu for the purpose of irrigation to a depth of 30 yards and accordingly to that extent the defendants are restrained by issuing an injunction from interfering with the rights of the plaintiffs. Against the said judgment and decree, the present appeal is filed by the defendants.
The learned counsel for the appellants raised the following questions.
(1) The previous judgment in O. S. 11 of 1865 D.C.M. Nellore operates are res judicata.
(2) Pilli vagu is a source of supply to Kotha cheruvu which is a registered ayacut to the defendants and hence the defendants must be treated on par with the plaintiffs as riparian owners.
(3) The relief claimed by the plaintiffs indirectly restrains the Government to regulate the source of supply which absolutely vests in the Government and hence the plaintiffs must be nonsuited.
On the question of res judicata, it is not in dispute that O. S. 11 of 1865 was filed by the previous plaintiffs though in a representative capacity and the issue that was adjudged by the parties was whether the plaintiffs can erect a bund and divert the water in Pilli vagu to their lands. The Court held that the riparian owners have no such right to cross bund and take water. The issue in the present suit is can the riparian owners take water for the purpose of cultivating the lands as a supplemental source of water to their fields even though they are the registered ayacutdars under a definite source of irrigation? But for the purpose of this question of res judicata, we are satisfied that the right adjudicated in the previous suit is right to cross bund and the present suit is only right to take water without any diminution in the flow of water. We are satisfied that the finding of the appellate Court that the previous judgment does not operate as res judicata is correct and accordingly we affirm the said finding.
On the second question we must say that both the courts concurrently found that the plaintiffs are riparian owners of Pilli vagu. The rights of the riparian owners are statutorily recognised under S.7(b) of the Easements Act 5 of 1882 read with illustration (j) to the said section. It is also necessary to note the Explanation to S. 7 which defines natural stream which is in the following terms :
"7. (a) ...........
(b) The right of every owner of immovable property (Subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.
Illustrations of the rights above referred to (a) to (i) ..................
(j) The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep and the right of every such owner to use and consume the water for irrigating such land, and for the purposes of any manufactory situate thereon; provided that he does not thereby cause material injury to other likeowners.
Explanation.- A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course."
This section was interpreted by number of judgments defining the right of riparian owner and the earliest judgment is Perumal v. Ramaswami Chetti (1888) 11 Mad 16 where their Lordships after analysing the section held that riparian owners are entitled to use and consume the water of the stream for drinking and household purposes, for watering their cattle, for irrigating their land, and for purposes of manufacture, subject to the conditions (i) that the use is reasonable, (ii) that it is required for their purposes as owners of the land, and (iii) that it does not destroy or render useless or materially diminish or affect the application of the water by riparian owners below the stream in the exercise either of their natural right or their right of easement if any. This principle was amplified in a judgment of Bombay High Court in State of Bombay v. Laxman. AIR 1960 Bom 490 at p. 495 stating.
(1) A riparian owner, in the exercise of his right to use the water of the stream for extraordinary purposes such as agriculture, can impound and divert water to irrigate his land adjacent to the stream.
(2) The right is not an absolute or exclusive right. He cannot abstract water ad libitum for his right is conditioned by the similar right of other riparian owners who have co-extensive rights to the water of the stream. It is limited but only by rights of persons in similar position having lands abutting both sides of the stream. The crucial condition is that the user of the stream by himmust be a reasonable use and not capricious or such as would inflict sensible injury on others similarly situated.
(3) This standard of reasonableness applies to the volume of water that he can divert, to the purpose for which he can utilise it as also to the mode or method that he may adopt for impounding and channelling such water.
(4) There is no rule exclusive or inclusive which defines the mode or specific methods or manner of diverting that water for that must depend on a variety of factors including for instance geographical and natural features of the lands of the riparian owners upstream and downstream, the terrain and the magnitude of the stream.
(5) A normal and usual mode or method of diverting water adopted in many parts of the country and more so in rocky or hilly terrains is that of putting up in the stream Kaccha or Pakka Bandharas (dams). In case of such terrains and principally in Higher reaches of a small river or rivulet this is the most practicable and economical method and it is too late in the day now to throw doubt on the reasonableness of this ancient system. It is incidental to the right itself. But the Bandhara must be such that they permit the flow of the water down stream and without diverting the natural course of the stream.
(6) The riparian rights of lower owners are to have the water of the stream transmitted to them continuously and in a manner which does not materially affect their enjoyment of the right. An upper riparian owner who puts up a Bandhara must, therefore, take care to see that the stream continues to flow without interruption and without any substantial diminution in volume."
The defendants must show in competing with the claim of the plaintiffs that they are also riparian owners and the diminution of supply of water by the user of the plaintiffs cannot be permitted. The trial Court rejected the claim of the plaintiffs on three reasons. Firstly the plaintiffs are registered ayacutdars of Toorup cheruvu and Padmata cheruvu and when they receive the water from those two tanks they cannot use the Pilli vagu as supplemental source. Secondly Pilli vagu is a source of water to Kotha cheruvu under which ayacut the defendants were registered. Thirdly the Government constructed kaluzus on the northern edge of Pilli vagu for purpose of directing the water from Pilli vagu to Kothacheruvu, and hence uninterrupted flow of water must be allowed to fill the Kothacheruvu which is the ayacut for the defendants. We are satisfied that all the three reasons are irrelevant for depriving the plaintiffs'' natural right of taking water when they are riparian owners. The fact that they are registered owners under different ayacuts would not destroy their natural right to take water from the stream abutting their lands. The fact that the water of the natural stream in the lower region is utilised by the Government as a source for a different tank would not in any way affect the right of the upper riparian owner. We are not concerned in this case with the undoubted right of the Government to regulate the source of irrigation. So long the defendants are not the riparian owners in the lower region they cannot complain prejudice of the user of the water by the riparian owners on the upper region. In this connection the learned counsel for the appellants relied upon a passage from K. N. Joshi''s Easement and Licenses, Third Edition (1957) Part II, Cha. II, page 307 extracted in Duraiswamy Udayar Vs. Venkatachala Reddiar and Another, in support of his contention that once it is shown that Pilli vagu is source of supply to Kothacheruvu the registered ayacut of the defendants the defendants must be treated on par with the plaintiffs as riparian owners. The passage runs thus :
"Where a channel has been constructed by the Government, acting as agent of the community to increase the well-being of the country by extending the benefit of irrigation and in pursuance of that purpose the flow of water is directed to the villages designed to be benefited, the rights of the owners of the fields registered under that source of irrigation are co-extensive with the natural rights of riparian owners. Thus, it would appear that though the rights relating to an artificial stream are not natural rights they may be acquired under such circumstances and even so used as to be co-extensive with the natural rights of riparian owners (See the catena of decisions cited in Katiar (ibid) at pages 530-31)."
A close reading of the passage clearly shows that persons owning the land abutting a channel though an artificial stream must be treated as a natural stream and the rights of the parties must be worked out as co-extensive with the natural rights of riparian owners. The rights inter se of the owners abutting the land of an artificial channel is extended by analogy and put on par with owners of natural stream. But it is clear that the passage relied upon shows the competing claimants are owners of the artificial channel. Both of them claim rights in respect of that channel. Hence the principle was raised to determine that question holding that such rights are co-extensive with that of riparian owners we are clear that the said principle has no application to the present case. Admittedly the defendants are not riparian owners of the stream Pilli vagu. The water from Pilli vagu flows ultimately to the tank which is a source of ayacut for them. So by any stretch of reason we cannot raise the claim of the defendants to that of riparian owners abutting the natural stream, unless it is shown that the plaintiffs are exceeding the rights of riparian owners by directing the user to a different purpose. Further illustration (j) noted above only puts an embargo as per proviso which states that "the riparian owner does not thereby cause material injury to other like owners". Once the defendants are not riparian owners they have no right to disturb the right of the plaintiffs and their natural advantages arising out of the situation of they being riparian owners within the meaning of S. 7(b) of the Easements Act.
The last submission is that the rights of the Government will be affected if the relief sought is granted. It is true as per S. 2 of the Andhra Pradesh Land Encroachment Act 3 of 1905 all rivers and streams vest in the Government. It is necessary to notice. S. 2 of the said Act.
"S. 2(1). All public roads, streets, lanes, and paths, the bridges, ditches, dikes and fences, on or besides the same, the bed of the sea and of harbours and creeks below high water mark, and of rivers, streams, nalas, lakes and tanks, and all canals and water-courses, and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property-
(a) of any zamindar, poligar, mattadar, jagirdar, shrotriemdar or inamdar or any person claiming through or holding under any of them, or
(b) of any person paying shist, Kattubadi, jodi, poruppu or quit-rent to any of the aforesaid persons, or
(c) of any person holding under ryotwari tenure, or in any way subject to the payment of land-revenue direct to Government, or
(d) of any other registered holder of land in proprietary right, or
(e) of any other person holding land under grant from the Government otherwise than by way of licence,
and, as to lands, save also in so far as they are temple site or owned as house-site or backyard,
are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other land-owners, and to all customary rights legally subsisting."
The section clearly recognises two things. One is the proprietary interest of a river or stream vests in the Government and the other is the right of easement is preserved. Hence the plaintiffs'' right to take the water from the natural source is not taken away by the fact that the stream vests in the Government. We have already noticed that S. 7 itself restricts the right of riparian owners as laid down by (1888) 11 Mad 16 as noted above. Further the right of easements given under S. 7 is always subject to the overriding power of regulating the water source as contemplated under S. 2 of the Easements Act which reads as follows :-
"2. Nothing herein contained shall be deemed to affect any law not hereby expressly repealed; or to derogate from-
(a) any right of the Government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels and of natural lakes and ponds, or of the water flowing, collected, retained or distributed in or by any channel or other work constructed at the public expense for irrigation;
(b) any customary or other right (not being a licence) in or over immovable property which the Government, public or any person may possess irrespective of other immovable property; or
(c) any right acquired, or arising out of relation created, before this Act comes into force."
When we read S. 2(a) with S. 7 it is clear that the overriding powers of the State to regulate the streams and rivers are not taken away. Further it is well settled that the State while regulating the water source cannot defeat the customary supply of water based upon either prescription or natural right. In this case, we are not concerned with the right of the Government to regulate the natural stream. Hence the decision relied upon by the learned counsel for the appellants in Fischer v. The Secretary of State for India ILR 1909 Mad 141 defining the powers of the Government in this regard has no relevancy, and hence it is unnecessary for us to pursue this principle any further.
The Court below categorically held that there is no evidence to what extent the volume of the water in Kothacheruvu was reduced. Further it restricted the taking of the water by the plaintiffs by manual operation such as paccotah only from Pilli vagu and hence we do not see any infirmity in the decree passed in favour of the plaintiffs permitting them to take water in a restricted way as directed in the decree.
In the result, the appeal fails and the same is dismissed. We make no order as to costs.
Appeal dismissed.