Belbhadar Pershad Singh v. Sheikh Barkat Ali

Rampini, J.:— The facts of the case out of which this appeal arises have been set forth in very great detail in the judgment of the Subordinate Judge and also in that of the District Judge. It is therefore unnecessary for me to recapitulate them. It is sufficient for me to say here that the Plaintiffs claim a right to irrigate the lands of their mouzah Amaon by the waters of a natural stream named the Bhutahinala which rises in the hills which surround a tract of country, called the Bhitriband and issuing by the north from this tract, flows to the east and then bifurcates, one branch flowing due east to the Defendant's mouzah Baraon and the other north-east to the Plaintiffs' mouzah Amaon. The Defendant has recently erected a dam across a branch of this Bhutahinala inside the area Bhitriband which has had the effect of stopping the flow of water in the Bhutahinala, if not of entirely effacting it. The Plaintiffs sue for the removal of this dam and pray for a perpetual injunction prohibiting the Defendant from interfering with the flow of the water of the nala. The Subordinate Judge held that the Plaintiffs were entitled to this relief both as a natural right and as an easement acquired by prescription. He therefore granted the relief sought for. The District Judge affirmed the Subordinate Judge's decree on the ground that the Plaintiffs had a natural right to the use of the water of the nala. He did not enter into the question of the Plaintiffs' right by prescription.

The Defendant appeals. On his behalf it has been pleaded (1) that the Defendant being a superior riparian proprietor is entitled to as much water of the nala as is required by him for the purpose of irrigating his fields, (2) that the Plaintiff is not a riparian proprietor at all, (3) that the Plaintiff has not proved the case set up by him, (4) that under the terms of the compromise arrived at by the parties in a previous litigation, the Plaintiff is not entitled to the relief awarded him and (5) that the terms of the injunction granted by the Subordinate Judge are too wide.

The learned pleader who appears on behalf of the Appellant contends in support of his first plea that the uses of the water of watercourses are according to English law divided under two heads— (1) primary and (2) secondary. Under the first head is the use of water for domestic purposes and for the watering of cattle. For these purposes an upper riparian proprietor may consume the whole of the water of a watercourse that passes through his land. For other purposes he can only use a reasonable proportion of the water, and then pass it on. The learned pleader, however, asks us to lay down a new rule of law to the effect that in this country the use of water for irrigation purposes is a use that should be classified under the head of primary and not of secondary uses, and so we should hold that the Defendant had a right to use all the water of the Bhutahinala for the purpose of irrigating his own land and that he was not obliged to leave any at all for the consumption of the Plaintiffs. In support of this contention he has cited a passage in sec. 121 (p. 207) of Angell on Watercourses in which it has been pointed out that according to the Supreme Court of Illinois in arid climates water for irrigation is referred to the class of natural wants, to which artificial wants must ever be legally subservient. But whatever may be the law or the future developments of the law in other countries than this, I can only say that no such rule has yet been laid down in this country. The law on the subject is to be founded in the judgments of this Court and of their Lordships of the Privy Council in Chumroo Singh v. Khyrut Ahmed(1), Ramessur Persad Narain Singh v. Koonj Behari Singh(2) and Debi Pershad Sing v. Joy Nath Singh(3) and according to these the Defendant is not entitled to consume the whole of the water of the Bhutahinala but only to a reasonable use of it.

The second plea of the Appellant is that the Plaintiffs are not riparian proprietors at all, because the branch of the nala which from the point of bifurcation leads the water of the stream to the Plaintiff's village of Amaon is a pain or artificial watercourse and not a natural channel. But this plea would seem to be concluded by the finding of fact of both the lower Courts that this branch is not an artificial watercourse but part of the natural stream. The Appellant's third plea is a very technical one. The Appellant's contention under this head is that the Plaintiff in his plaint speaks of one natural nala taking its rise in the north and west of the hills surrounding mouzah Bhitriband, whereas the Courts have found that it is farmed by the confluence of many natural streamlets flowing from the hills that surround Bhitriband. This can in no way interfere with the Plaintiff's right to the relief claimed.

The fourth ground of appeal relates to the compromise arrived at between the parties in a previous suit. This previous suit was brought by the Plaintiffs in 1831 to prevent the Defendant damming up the water of the nala in 3 places lower down the stream than the place where he has now erected the dam which has led to the institution of the present action, and this case was settled by a compromise arrived at between the parties according to which the Defendant was to maintain a bund only of a certain height, so as not to prevent the overflow or the surplus water of the nala, from passing on to the Plaintiff's village. This compromise instead of supporting the Appellant's case would seem to me to show that he cannot have the right he claims in this case of damming up the stream so that none of it may flow towards the Plaintiff's village. Moreover, as pointed out by the District Judge it was expressly stipulated that he should have no other rights.

The injunction granted by the Subordinate Judge requires alteration as it declares that the Plaintiff has a right by prescription as well as a natural right to the use of the water. The District Judge has not affirmed this part of the Subordinate Judge's judgment. Hence, the words “as an easement and also by prescription” must be omitted. But in other respects the injunction does not seem to me to require alteration. It seems in translating the sentence. “The Defendant is perpetually enjoined not to obstruct the nala or efface it in a similar manner” the last four words have been omitted in the vernacular decree. These words in my opinion had better remain omitted, as otherwise the Defendant may contend that they imply that he may obstruct and efface the nala in a different manner which it is not intended that he should be allowed to do.

With this modification of the decree I would dismiss this appeal with costs.

Mookerjee, J.— The facts which have given rise to the litigation out of which this appeal arises, do not admit of any doubt or dispute at the present stage. In Pergunnah Chainpur within the district of Shahabad, there is a tract of country called Bhitri Band Halka, about 10,000 bighas in area, and surrounded on all sides by hills. The entire tract includes twelve villages, of which three are inhabited and the remainder uninhabited. The Halka or hill enclosure is approximately circular in form with openings in the east and north-east. It is admitted that the tract which lies within the hills is the property of the Defendant. During the rainy seasons, water flows from innumerable points in the surrounding hills in defined channels and joining with the overflow from the Halka area itself, passes out by the north-east opening. The parties are at variance regarding the sites of the channels by which the water flows within the area, but the location of the channel outside the north-east opening is undisputed, though it was the subject-matter of a previous litigation between the parties. It is admitted that the stream, after it has issued out of the hill enclosure, flows towards the east and then bifurcates, one branch going east to Baraon, a village of the Defendant, and another branch going north-east to village Amaon and other villages belonging to the Plaintiffs. Within the area surrounded by the hills, according to the Plaintiffs, the water flowed through one channel called Bhutai Nala which rises in the north-west and after flowing east in a semi-circular form, passes out of the hill enclosure through the opening towards the north. The case for the Plaintiffs is that the Defendant had raised a dam across this stream at a place called Baradih, effaced the channel on both sides of the dam, and constructed a reservoir, with the result that the whole of the water of the stream was intercepted, and no water reached then village Amaon so as to be available for the purposes of irrigation of their properties. The Defendant, on the other hand, denied the existence of the Bhutai Nala alleged by the Plaintiffs, asserted that the dam and the reservoir had not been recently constructed, but had been in existence for many years, and that the only stream which drained the hill enclosure was the Langri Nala which takes its rise in the southern hill Rajdeo, flows almost due north and passes out through the northern opening. In the Court of first instance, the learned Subordinate Judge, upon a careful review of the evidence, came to the conclusion that the whole truth had not been stated by either side. He found, in favour of the Plaintiffs, the existence of the Bhutai Nala established. He also found that the dam and the reservoir had been recently constructed by the Defendant who had effaced the course of the stream on both sides of the dam, and had thus intercepted the whole of the water which used to flow in that channel. But he found against the Plaintiffs that the Bhutai Nala was not the only stream which drained the hill enclosure and that there were other streams which took their rise at different points of the hills and carried off the surplus water including the overflow of a large reservoir called the Bhutai Kund. The learned Subordinate Judge further concluded upon the evidence that the stream, after it has issued out of the hill enclosure, bifurcates and one branch of it proceeds to the villages of the Plaintiffs, and another to the villages of the Defendant. It appears to have been argued before him that the channel which passes through and irrigates the villages of the Plaintiffs was an artificial channel. The Subordinate Judge negatived this contention and held that the whole formed, in its two branches, a natural and ancient watercourse. The Subordinate Judge held, in the alternative, that if the channel which leads to the villages of the Plaintiffs had been artificial, the Plaintiffs had acquired a right of casement, in exercise of which they were entitled to use the water for purposes of irrigation. Under these circumstances, the Subordinate Judge made a decree in favour of the Plaintiffs, which declared that the Plaintiffs, as riparian owners, were entitled to have a continuous flow of water of the Bhutai Nala from its source to village Amaon and other villages of theirs near to it, and that they had the right to irrigate the lands of these villages by means of that water, not only as riparian owners, but also by prescription. The decree further enjoined the Defendant to remove the dam and to restore the channel to its normal condition and authorised the Plaintiffs to do so upon failure of the Defendant to give effect to the directions of the Court within the time specified. The decree also embodied a perpetual injunction restraining the Defendant from obstructing the channel or effacing it. Against this, decree, the Defendant appealed to the District Judge who substantially affirmed the findings of the Court of first instance, except upon the question of prescriptive right, upon which matter he did not express any opinion. In this view of the case, the learned District Judge affirmed the decision of the Subordinate Judge. The Defendant has appealed to this Court, and on his behalf the decision of the District Judge has been challenged on five grounds, namely, first, that the Plaintiffs are not riparian owners and are not entitled to any of the privileges which may be claimed lay such owners; secondly, that there is variance between-the case set up in the plaint and the case established by the evidence; thirdly, that under the terms of the compromise which terminated the previous litigation between the parties, the Plaintiffs are not entitled to any relief; fourthly, that having regard to the nature of the land, the Defendant as the upper riparian proprietor and owner of the soil over which the stream passes, is entitled to intercept the whole of the water for the purposes of irrigation of his own lands and fifthly, that the terms of the decree are too wide both in respect of the declaration made and the injunction granted.

In support of the first contention, namely, that the Plaintiffs are not riparian proprietors, reliance was placed by the learned vakil for the Appellant upon the petition of compromise of the 25th January 1881, which terminated a previous litigation between the parties. On the basis of this petition it was argued that the parties themselves had described the portion of the channel which leads to the Plaintiff's villages as a pain or an artificial watercourse, and had described the channel which leads to the Defendant's villages as a nala or a natural watercourse. In my opinion there is no force in this contention. In the first place, the terms pain and nala have not the restricted meanings imputed to them; they are used indiscriminately for natural and artificial watercourses. In the second place, the question raised is essentially one of fact and the Appellant is not entitled to invite this Court to examine a portion of the evidence relating to this matter, and thus arrive at a conclusion, different from that reached by the Courts below. The Subordinate Judge found upon the whole evidence, that the portion of the stream which passes through the Plaintiffs' villages flows in a natural and ancient channel. This findings has been affirmed by implication, if not expressly, by the District Judge. It is not suggested that the conclusion involves any error of law. The first point taken on behalf of the Appellant cannot, therefore, be sustained and must be overruled. The second ground, urged on behalf of the Appellant, is that, the Plaintiffs are not entitled to any relief, inasmuch as the case, established by the evidence is different from the case stated in the plaint. This contention is founded on the fact that whereas the Plaintiffs alleged in the plaint, that there was only one channel issuing from the hill by which the stream was fed, and that such channel had been obstructed by the Defendant, the evidence proves conclusively, that there are several channels issuing from the hills which unite and form the stream, and that one of these channels only has been obstructed by the dam which the Defendant has erected. No doubt, there is thus a variance between the pleading and the proof but I am unable to hold that the variance is of such a character as to disentitle the Plaintiffs to the relief which they would otherwise be entitled to claim. It is perfectly true, that in order to enable a Plaintiff to recover or a Defendant to succeed in his defence what is proved or that of which proof is offered by the party on whom lies the onus of proof must not vary from what he has previously alleged in his pleading. But although the rule is, that proofs must correspond with the allegations in the pleadings, the requirement in that behalf is fulfilled, if the substance of the declaration is proved; no variance ought ever to be regarded as material, where the allegation and proof substantially correspond, Nash v. Towne. The reason for this is obvious; the rule is intended to answer the double purpose of distinctly and specifically advising the opposite party of what he is called upon to answer, so as to enable him properly to make out his case and to prevent his being taken by surprise at the trial, and of preserving an accurate record of the cause of action, as a protection against another proceeding based upon the same cause. Judged by these principles, there is no substance in the contention of the Defendant. Although the learned District Judge has found that the stream draws its water, before leaving the hill tract, from all directions, the principal source is the western stream, across which the Defendant has erected the dam; and that it is the principal source of supply is manifest from the fact, that the stoppage of the water of this one stream has completely stopped the flow of any water to the villages of the Plaintiffs. It is, therefore, impossible to hold that there is any such substantial variance between pleading and proof as prejudiced the Defendant in any way in the trial or has disentitled the Plaintiffs from obtaining the reliefs they have claimed. [Nurul Hossein v. Sheo Shaha(5) and Malik Ahmad v. Shamsi Jahan(6)]. The second ground taken on behalf of the Appellant cannot, therefore, be successfully maintained.

The third point urged on behalf of the Appellant is that under the terms of the compromise which terminated the previous litigation between the parties, the Plaintiffs are not entitled to any relief. It appears that in 1880, the father of the present Defendant obstructed the irrigation of the Plaintiffs' villages by erecting a dam across the stream near the place of bifurcation which led to two suits which were subsequently compromised on the 31st January 1881. Under this compromise, the right of the Plaintiff to have their village Amaon and other villages irrigated by the channel was recognised. Regulators were created, so as to determine the flow of water into the channel which leads to the Plaintiffs' villages, and ever since water has been allowed to flow in case of excess over the prescribed minimum level. It is argued on behalf of the Appellants that under the compromise, the Plaintiffs are entitled only to such water as may be left after the necessities of the Defendant have been satisfied, and that if it is necessary for the Defendant to appropriate the whole of the water, he is entitled to do so. I am unable to uphold this contention as well-founded. It is quite clear that the parties contemplated that the bed of the channel should be maintained at a constant level, and that the water, whenever it might rise higher than a defined height, should flow into the channel which leads to the Plaintiffs' villages. The compromise undoubtedly did not contemplate that it would be open to the Defendant to raise a dam across the stream nearer the source, so as to cut off completely the water-supply. On the other hand, there is considerable force in the contention of the Respondents that the only barriers which could be raised by the Defendant are those specified in the agreement. I must hold accordingly that the compromise of the 25th January 1881 does not justify the action of the Defendant, if, indeed, it does not show that such action was in violation of the contract. The third ground taken on behalf of the Appellant consequently fails.

The fourth ground taken on behalf of the Appellant raises a question of law of considerable importance and nicety. The learned vakil for the Appellant invited our attention to the following finding of the Subordinate Judge which does not appear to have been challenged by either party before the District Judge.

“In this dry, rocky and parched up country where these mouzahs lie, it is a dire necessity that they should be irrigated by this water in order that they should produce paddy crop, and most of the lands are paddy lands; there is no other means of irrigation. No one with any knowledge of these and similar hill villages will deny that tree necessity for the sort of irrigation in these villages is absolute, no paddy will otherwise grow there, and the villages will go out of cultivation and grow jungle; the Government will lose its revenue and the people their food.”

Upon the basis of this finding, it was contended on behalf of the Appellant, that he, as the upper riparian proprietor and owner of the soil over which the stream passes, was entitled to intercept the whole of the water for the purposes of irrigation of his own lands. Reliance was placed upon the observations of Lord Macnaghten in McCartney v. Londonderry(7) and of Sir William Brett, M.R, in Ormerod v. Tadmorden(8) in which the distinction is pointed out between the use of the water of a running stream for ordinary or primary purposes and for extraordinary or secondary purposes. Reference was also made to passages from Angell on Watercourses (7th edition, 1877), secs. 120 to 128, in which a distinction is drawn between user for natural and for artificial purposes and it is stated upon the authority of the decision of the Supreme Court of Illinois in Evans v. Merryweather(9) that the use of water for irrigation in arid climates may be a natural want, and may, consequently, justify a complete absorption of the stream by a superior riparian proprietor. The question raised by this argument is, as I have already indicated, one of great importance, and by no means free from difficulty; the authorities on the subject and the principles deducible from them consequently require careful examination.

In the first place, it is firmly settled that riparian owners have equal rights to a usufruct of the waters of an adjacent stream, and no proprietor has the right to use the water to the prejudice of other proprietors, above or below, unless he has a prior right to diversion. This is explained with great clearness by Mr. Justice Nelson in his judgment in the case of Howard v. Ingersoll(10), where that learned Judge observed as follows:— Every proprietor of land on the banks of a river has naturally an equal right to the use of the water, which flows in the stream adjacent to his lands. No proprietor has a right to use the water to the prejudice of other proprietors, above or below, unless he has acquired a prior right to divert it. He has no property in the water itself, but a simple usufruct while it passes along. Any one may reasonably use it who has a right of access to it, but no one can set up a claim to an exclusive right to the flow of all the water in its natural state, and that, what he may not wish to use himself shall flow on till lost in the ocean. Streams of water are intended for the use and comfort of man, and it would be unreasonable and contrary to the universal sense of mankind to debar a riparian proprietor from the application of the water to domestic, agricultural and manufacturing purposes, provided the use works no substantial injury to others.” This statement of the law is substantially identical with the view set forth by Chancellor Kent in his Commentaries, Vol. III, secs. 439 to 441, by Mr. Justice Story in Tylor v. Wilkinson(11) and by Baron Parke in Embrey v. Owen(12). It follows, therefore, that a riparian proprietor of land bordering upon a running stream has a right to the flow of the water, and the enjoyment of it, subject to the similar natural right of other riparian proprietors, to the reasonable enjoyment of the same; the stream, therefore, cannot be lawfully diverted by one riparian proprietor against the consent of the others [Sturr v. Beck(13) and Sampson v. Hoddinott(14)].

In the second place it is well settled, that there is a distinction between the ordinary and extraordinary uses of water or uses for the purpose of satisfying natural and artificial wants. One of the earliest cases in which this distinction was established is that of Miner v. Gilmour(15), decided by the Judicial Committee on an appeal from Lower Canada. Lord Kingsdown in delivering the judgment of their Lordships observed as follows:— “By the general law applicable to running streams, every, riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in case of a deficiency, upon proprietors lower down the stream. But further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up the stream for the purpose of a mill or divert the water for the purpose of irrigation. But he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors and inflicts upon them a sensible injury.” This passage has always been regarded as containing a clear and accurate statement of the law applicable to running streams [Lord Norbury v. Kitchin(16) and Nuttall v. Bracewell(17)] and the same view of the law was subsequently affirmed by the House of Lords in Swindon v. Wilts(18) and again by the Judicial Committee in Ramessur Persad v. Koonj Behari and in Commissioners of French Sock v. Hugo(19). In the recent case of McCartney v. Londonderry, Lord Macnaghten stated the law in similar terms: “There are three ways in which a person whose lands are intersected or bounded by a running stream may use the water to which the situation of his property gives him access. He may use it for ordinary or primary purposes, for domestic purposes and for the wants of his cattle. He may use it also for some other purposes sometimes called extraordinary or secondary purposed provided those purposes are connected with or incident to his land, and provided that certain conditions are complied with. Then he may possibly take advantage of his position to use the water for purposes foreign or unconnected with his riparian tenement. His rights in the first two cases are not quite the same; in the third case he has no right at all. In the ordinary or primary use of flowing water, a person dwelling-on the banks of a stream is under no restriction. In the exercise of his ordinary rights, he may exhaust the water altogether. No lower proprietor can complain of that. In the exercise of rights, extraordinary but permissible, the limit of which has never been accurately defined and probably is incapable of accurate definition, a riparian owner is under considerable restriction. The use must be reasonable. The purposes for which the water is taken must be connected with his tenement, and he is bound to restore the water which he takes and uses for those purposes substantially undiminished in volume and unaltered in character.” This distinction between ordinary and extraordinary use of water was adopted by Sir William Brett, M.P, in Ormerod v. Tadmorden, who went a step further than Lord Kingsdown and held that a user which would be extraordinary in one place, might be ordinary in another, owing to the surrounding circumstances, and that a user which at one time would be considered extraordinary might at another time be deemed ordinary owing to changes in the locality. This distinction was also made in the case of Evans v. Merry-weather where Mr. Justice Lockwood appears to have observed, that in countries with a hot and arid climate where water is absolutely indispensable to the cultivation of the soil, water for purposes of irrigation would be a natural want. The learned vakil for the Appellant conceded that under the English law irrigation is not regarded as a primary use; indeed the contrary view could hardly be maintained in view of the decisions in Wood v. Waud(20), Sampson v. Hoddinott and Embrey v. Owen, which are authorities for the proposition, that whether a riparian owner may use the water of a natural stream to irrigate his land, depends upon the quantity of water he requires and the injury he inflicts upon other riparian owners. This is also clear from Angell on Watercourses, sec. 120, in which it is stated that under the law of England, as a general rule the water cannot be so abstracted for the purpose of irrigation as to diminish materially the quantity of water which naturally runs in the watercourse; and the same learned author points out that the law of France is similar, as under it although a riparian proprietor may divert the water of his meadows, yet every one must use this liberty, so as to do no injustice to his neighbours, who have a like want and an equal right. The learned vakil for the Appellant, however, strongly relied upon the dictum contained in the judgment of the Supreme Court of Illinois in Evans v. Merryweather. An examination, however, of recent cases in the American Courts shows clearly, that the contention of the Appellant cannot be supported. In the Eastern States, where the climate is moist, the natural rain-fall abundant, and the land supplied with numerous springs and flowing streams, the necessity for artificial irrigation can barely arise, and in these States, the use of water for irrigation is regarded as an artificial or extraordinary use. [Evans v. Merryweather, Garwood v. New York(21)]. But in that part of the United States, known as the arid region, comprising a large portion of the country, west of the Missoury river, the climatic conditions are widely different; the soil, though of great fertility, is wholly unproductive on account of lack of water, and in this region agriculture is often impossible without the aid of irrigation. In the Courts of the States situated in this region, the authorities are directly conflicting. In Texas, it is declared that the use of water for irrigation in the arid portions of the State is an ordinary or natural use, and that the entire flow of a stream may be consumed in such a use, when necessary. Rhodes v. Whitehead(22), Tolle v. Correth(23), Mudcrcck v. Vivian(24), Barrett v. Metcalfe(25)]. The contrary view, however, was adopted in Fleming v. Davis(26) and the same view was taken in Union Mill v. Ferris(27), in which it was held that so far as the classification of the use of water for irrigation is concerted there can be no difference in the law in moist and dry climates, though the greater necessity of irrigation in dry countries may be a proper fact to consider in determining the question of reasonable use. Similarly, in Lowe v. Schaffer(28), the Supreme Court of Oregon held that a diversion of water for irrigation is not an ordinary use and can only be exercised reasonably and with proper regard to the rights of other proprietors to apply the water to the same purposes. The most satisfactory view of the question is perhaps that taken by the Supreme Court of California in a recent leading case, Lux v. Huggin(29), in which an elaborate attempt was made to define and measure the rights of a riparian owner. The Court doubted whether any arbitrary classification of primary and secondary uses could be of general application and pointed out that the relative importance and necessity of the several uses of the water of a particular stream must generally depend upon the circumstances of each case, and that all these circumstances are to be considered in determining the reasonableness of the use for irrigation. In several later cases in California [Alta Land v. Hancock(30), Wiggins v. Muscupiable(31) and Smith v. Corbit(32)], it has been held, that the right to the use of water for irrigation must be held in subordination to the right of the other proprietors to use the water for domestic purposes and for drink, for man and beast, which wants, it has been maintained, must be supplied before water can be taken for irrigation. It has also been maintained, in the Courts of several States, that one proprietor cannot, under any circumstances, divert and consume the entire flow of a stream for irrigation purposes to the exclusion of lower proprietors whose right to the water is as good as his own, and the fact that all the water in the stream may be necessary for the proper irrigation of his land cannot change the rule [Learned v. Tangeman(33), Gould v. Stafford(34), Gillett v. Johnson(35), Arnold v. Foot(36) and Harris v. Harrison(37)]. In the last of these cases it was said that where irrigation is absolutely necessary, a riparian owner is entitled only to the reasonable use of natural water for irrigating his land, although such use may appreciably diminish the flow down to the lower riparian proprietors; the larger the number of riparian proprietors whose rights are involved—the greater the difficulty of adjustment; the length of the stream, the volume of water in it, the extent of each ownership along the banks, the character of the soil owned by each contestant, the area sought to be irrigated by each—all these and many other considerations must enter into the solution of the problem; but one principle is surely established, namely, that no proprietor can absorb all the water of the stream so as to allow none to flow down to his neighbour. It is clear, therefore, that expect in places where the irrigation laws are embodied in special statutes, the weight of recent American authority is in favour of the view that even, in the arid region, of the United States, use of water for irrigation is artificial or extraordinary, and that a riparian proprietor has no right to use the entire flow of the stream for purposes of irrigation. That this is the prevailing view is borne out by a reference to the leading text-writers and digests on the subject, [see Long on Irrigation, secs. 3 and 17, Kinney on Irrigation, secs. 9, 96-122 and 225-232, Could on Waters, secs. 205 and 217, Wiel on Water Bights in Western States, secs. 215-217, Pomeroy on Water Rights, Black's Edn., secs. 153-154, Faruham on Waters, secs. 599 and 604, Current Law, Vol. II, p. 2046, sec. 13, Vol. IV, p. 1839, sec. 14, and American and English Encyclopaedia of Law, Vol. XVII, p. 489]. This view of the law seems to me to be eminently just and, as pointed out by Shaw, C.J, in Elliot v. Fitchaburgh(38), any other rule would be entirely subversive of the well-estabilished doctrine that the right to the reasonable and beneficial use of a running stream is common to all the riparian proprietors, and each is bound so to use his common right as not essentially to prevent or intefere with an equally beneficial enjoyment of the common right by all the proprietors. I am unable to appreciate upon what principle it can be justified that the superior proprietor is entitled to use the whole of the water of a natural stream for purposes of irrigation so as to deprive a lower proprietor of sufficient water to quench the thirst of himself, his family and domestic animals. In the case before us the Defendant claims the right to stop the flow of the stream so as to enable him to consume the whole of the water for purposes of irrigation. To apply the words of Lord Cairns in Swindon v. Wilts it is, therefore, a case of complete diversion of the stream and the confiscation of the rights of the lower owner. This, I must hold, the Defendant was not entitled to do. No question consequently arises as to the extent of the rights of the Appellant, and we are not called upon to determine how, if the water is found not enough for continual use by both parties, its user ought to be apportioned between them. It is not necessary to determine what would constitute, under the circumstances of this case, reasonable use by the Defendant; the Plaintiffs are entitled to succeed on the ground that the total consumption for irrigation by one riparian owner of the water of the stream, so that other proprietors are entirely deprived of the use of the water, must be regarded as an unreasonable use. This view is consistent with the Indian authorities so far as they go; see Muggun v. Bhooban(39), Mothura Mohan v. Mohendro Nath(40), Manoour Hassein v. Kanhyi Lal(41), Sardowan v. Hurbuns(42) Court of Wards v. Leelanund(43), Heeranund v. Khubirunnessa(44), Chumroo Singh v. Khyrut Ahmed, Rayappan v. Birabhadra(45) and Perumal v. Ramasami(46). In the last of these cases, it was held that riparian owners are entitled to use and consume the water of a natural stream for drinking and household purposes, for watering their cattle, for irrigating their land and for purposes of manufacture, subject to the conditions, that the use is reasonable, that it is required for their purposes as owners of the land, and that it does not destroy or render useless or materially diminish or affect the application of the water by lower riparian owners in the exercise of their natural right or their prescriptive or contractual right if any (see also Indian Easement Act, 1882, sec. 7, 111, j, which shows that in parts of the country, where the provisions of the Act apply, user for purposes of irrigation is treated as an extraordinary use of water), Substantially the same result follows from the decision of the Judicial Committee in Bebi Pershad v. Joy Nath, when it was held that the legal right, of lower riparian owners is to have the water of the stream transmitted to them, continuously, without interruption and without any substantial diminution in volume, subject only to the qualification, that an upper proprietor may for purposes which the law regards as legitimate withdraw from the stream, as it passes along his - lands, so much of its water, as will not materially affect its downward flow or impair the user of it by lower proprietors. The cases of Kalu Khaber v. Jan Mea(47) and Madhabdas v. Jogesh Chandra(48), which were relied upon by the learned vakil for the Respondents, have no direct bearing upon the question raised before us. These cases deal with the question of the relative rights of upper and lower proprietors on the bank of a stream, when the claim to such user is based upon custom, prescription or grant; but these cases indicate some of the circumstances under which a riparian proprietor, whose rights have been infringed, may obtain an injuction. I must hold, consequently, that the fourth point taken on behalf of the Appellant fails and must be overruled.

The fifth and the last ground taken on behalf of the Appellant relates to the form of the decree. It is argued that there ought to be no declaration of any prescriptive right in favour of the Plaintiffs. This contention is well founded. The District Judge has not discussed the question whether the Plaintiffs have any right of casement or any prescriptive right but he has affirmed the whole of the decree made by the Court of first instance. The clause, therefore, which declares that the Plaintiffs have the right claimed as an easement and also by prescription, must be expunged. It is next contended that the decree is vague, and too wide, and reliance is placed upon the decision of the Judicial Committee in Debi Pershad v. Joy Nath in which some of the elements which determine what is lawful user by riparian owners of the water of a natural stream were indicated; the case before us is however clearly distinguishable. Here the gist of the complaint is that the Defendant has intercepted the entire water of the stream and no question was raised in either of the Courts below as to the manner in which the apportionment of the water ought to be regulated between the parties if the claim to exclusive user set up by the Defendant proves to be 4 unfounded. The Plaintiffs are therefore entitled to an injunction perpetually restraining the Defendant from obstructing the watercourse or effacing it. The Plaintiffs are also clearly entitled to the mandatory injunction which has been granted to compel the restoration of the watercourse to its natural form [Coming v. Troy Factory(49)].

On these grounds, I agree with my learned brother that subject to the variation indicated the decree made by the Court below ought to be affirmed and this appeal dismissed. As the appeal has substantially failed, the Respondents are legitimately entitled to their costs.

N.G