The judgment of the Court was as follows:—

To understand the facts of the case it is necessary to refer to a map, drawn not exactly but only approximately, to scale, which forms a part of the plaint. The plaintiff company is the owner of the Gopalpur Tea Estate. The defendants Nos. 1, 2 and 3 are the Anjuman Tea Company, Limited, the Lankapara Tea Company, Limited, and the Needam Tea Company, Limited, their tea estates being known respectively as Makrapara, Lankapara and Dalmore. The relative positions of these tea estates are that Lankapara and Makrapara lie to the east and west, side by side; Dalmore is on the south of Makrapara; and Gopalpur lies on the south of Dalmore. Their common landlord is the defendant No. 4, the Secretary of State for India in Council. A hill-stream of considerable volume and velocity, which goes by the name of river Pugli, takes its rise in the Bhutan Hills and emerging into the slopy plains on the south enters the British territory at some points to the north of the Makrapara and the Lankapara tea estates and flows in a south-westerly direction. It shoots off in its course branches, of which the two nearest to the area with which this case is concerned are first the river Sukarititi and next the river Gorgonda, both running southwards. In this southwesterly course, the river Pugli for some distance forms the common boundary between Lankapara on the east and Makrapara on the west, and then the stream bifurcates,—one branch flowing in a southwesterly direction through Makrapara and into the river Surti which also comes out of the Bhutan Hills and runs by the west of Makrapara.; and another branch running more or less southwards at first continuing as a common boundary between Makrapara on the west and Lankapara on the east, as is now admitted, and then flowing through Dalmore and thereafter through Gopalpur. In this case, for the sake of brevity, the former branch is referred to as the western branch and the latter as the southern branch. The river Gorgonda, of which mention has already been made, emerges out of the Pugli river at a point on the northwest of Lankapara, passes through Lankapara, then through Dalmore and lastly through Gopalpur. Thus in Makrapara, the western branch of the Pugli runs through the estate and the southern branch (as is now admitted) forms its eastern boundary; in Lankapara, the southern branch of the Pugli forms the western boundary of the estate, and Gorgonda runs a little to the east and in a course, north and south; and in Dalmore and Gopalpur, Pugli and Gorgonda flow north to south, the former lying to the west and the latter to the east. These facts are, at this stage, undisputed.

The plaintiff's case in the present suit, stated shortly, was as follows: It was stated that more than 30 years ago the mouth of the Gorgonda silted up owing to natural causes and the junction point of Gorgonda and Pugli became firm land with the result that water of the Pugli ceased to flow through it; that the defendants Nos. 1 and 2, neither under the terms of their lease nor under the law, have any right to erect any such embankments or bunds, etc., in the bed of any of the rivers, aforesaid, but they with a view to obstruct the free and natural flow of water through and from the Pugli river and to divert it from its natural course had erected and were still erecting embankments, bunds, etc., in its bed in the Bhutan and the British territories with two results. One of these results is described in para. 9 of the plaint, the substance of which is that during the rains the said river frequently overflowed its banks and sent down large volumes of water in violent currents through the Gorgonda, which is more than what it can carry, and so overflows the banks of the Gorgonda and causes damage to the plaintiff's property. The second result is described in paras. 10 and 11 of the plaint. It is stated in para. 10 that so far as the plaintiff had been able to ascertain, bunds and embankments marked AA', BB', CC, DD' and EE' shown on the plaint map had been erected by the first defendant and those marked 6 to 21 therein had been erected by the second defendant and then it was stated that—

Each of the said defendants is still going on erecting further and more similar embankments, etc., and has also been often adding to and altering those already made and erected with a view to completely obstruct and divert the natural course and flow of the Pugli river.

In para. 11 it was stated that the main natural current of the Pugli used to flow by the western of the two channels already described and that by reason of the erection of the bunds AA', BB', CC and DD' water has been diverted from the main natural channel to the other channel, that is to say, the southern channel, which passes through Gopalpur, causing serious loss to the plaintiff. And it is also stated that the other bunds and embankments which the two defendants had erected in the Bhutan and the British territories, and especially the bunds EE' and 1 to 21 had caused obstruction and diversion of the free and natural flow of the Pugli river directly causing frequent floods in the Pugli and with resultant floods in the Gorgonda. Thereafter it was stated that on account of the bunds and embankments which the first two defendants had each erected in the bed of the river Pugli there had been disputes between them; and a suit being No. 102 of 1915 had been instituted by the first defendant against the second defendant but it resulted in a compromise between them; that by the compromise they illegally and without any authority reserved to themselves the right to erect embankments and bunds in the bed of the river Pugli according to their respective choice and convenience and they stipulated between themselves that the silted up bed of the Gorgonda at its mouth should be opened up so as to allow Pugli water to divert and flow through the Gorgonda,— water which in normal conditions and natural course would have flown through the Pugli itself, and that defendant No. 1 had applied for executing this collusive decree by excavating the bed of the Gorgonda at its mouth with a view to cause such diversion.

The foundation of the liabilities of the defendants Nos. 1 and 2, on which the prayers in the plaint were based, was set out in para. 15 of the plaint which ran thus:—

15. The defendants have no right to erect or cause to be erected or maintain embankments, spurs, dams and bunds, etc., anywhere in or about the bed of the Pugli or across it or to obstruct the free and natural flow of its water through its natural course and bed or to obstruct or divert the Pugli river from its original and natural channel through which it flowed into the Surti river, neither have they any right to open out by excavations and removal of silt or sand or other deposits or otherwise the silted up mouth of the Gorgonda and its bed and divert the water of the Pugli through it to plaintiff's estate. The plaintiff is entitled to restrain the defendant from making any excavations in the bed of the Pugli or Gorgonda either at their mouth or at any other place and from diverting the water of the Pugli through the bed of the Gorganda or in any other maimer and also to get the embankments, spurs, dams and bunds, etc., referred to above or any other embankments, spurs, dams and bunds, etc., which they may hereafter make or cause to be made or which may be found in or about the bed of the Pugli removed and also to restrain the defendants from erecting any embankments, spurs, dams and bunds, etc., in or about the bed of the river Pugli or to impede, obstruct or divert the said river in any way or manner.

The prayers broadly speaking were: (i) Certain declarations based on the rights of the plaintiff as the lower riparian owner and the disabilities of the defendants Nos. 1 and 2 as the upper riparian owners in respect of the river Pugli; (ii) a mandatory injunction on the defendants Nos. 1 and 2 to remove the bunds and embankments AA', BB', CC, DD', EE' and 1 to 21; (iii) a perpetual injunction restraining the defendants Nos. 1 and 2 from erecting bunds and embankments in the bed of the said river and from doing any act which may be calculated to impede or obstruct the free and natural flow of the water of the said river or divert it from its natural course; and (iv) a perpetual injunction restraining the defendant No. 1 from opening out the mouth of the Gorgonda by removing the sand, silt, etc., deposited there, in execution of the collusive decree in Suit No. 102 of 1915 or otherwise.

The suit was instituted on September 14, 1927, but before the trial actually began there was a compromise between the plaintiff and the defendant No. 1, by which, subject to certain modifications and explanations, the terms of the compromise decree in Suit No. 102 of 1915, which had been passed as between the defendants Nos. 1 and 2, were agreed upon as good and binding as between the plaintiff and the defendant No. 1; and several other stipulations were also agreed upon as between the said parties themselves, declaring in favour of each other and also reserving to them their respective rights as regards the opening of the Gorgonda mouth and keeping intact or putting up in future of bunds and embankments on the Pugli river. The suit then proceeded against the defendant No. 2 as the only contesting defendant, and in the end the Subordinate Judge made a decree in plaintiff's favour in these terms:—

It is ordered and decreed that the suit be decreed in terms of the compromise against the defendant No. 1 and, as it was ordered previously, the terms should be recorded in the decree. The suit be decreed in a modified form on contest against the defendant No. 2 without costs. Plaintiff's right to have the free and natural flow of the Pugli river through its original and natural course be declared, and it be declared that the defendants Nos. and 2 have no right to interfere with such right subject to the terms of the compromise with defendant No. 1; and subject to the compromise between plaintiff and defendant No. 1, it be declared that the defendants Nos. 1 and 2 have no right to erect bunds, etc., in the bed of the Pugli to narrow down the bed or divert the waters of the Pugli from its original and natural course or to obstruct the free and natural flow of the Pugli through its original natural course.

The defendant No. 2 has appealed from this decree. In this appeal, it is not contended that the decree is not a proper decree in so far as it purports to adjust the rights of the plaintiff and of the defendant No. 1 on the basis of the compromise arrived at between them; though a much simpler form of decree would have been enough for that purpose, viz.—

That it is ordered and decreed that the suit as between the plaintiff and the defendant No. 1 be decreed in terms of the compromise arrived at between themselves, the said terms being recorded in and forming a part of the decree.

And it was wholly unnecessary to make the declarations against the defendant No. 1 while making the decree as against defendant No. 2, These declarations against the defendant No. 1 are in the terms of the compromise itself and the only purpose that they serve by being repeated while the decree as against the defendant No. 2 is being made is to complicate matters. If they are omitted as they should, in any case, be, the decree as it is against the defendant No. 2 would with some formal alterations run thus:—

The suit be decreed in a modified form on contest against the defendant No. 2 without costs. Plaintiff's right to have the free and natural flow of the Pugli river through its original natural course be declared and it be declared that the defendant No. 2 has no right to interfere with such right, subject to the terms of the compromise with the defendant No. 1; and subject to the said compromise it be declared that the defendant No. 2 has no right to erect bunds, etc., in the bed of the Pugli, to narrow down the bed or divert the waters of the Pugli from its original and natural course, or to obstruct the free and natural flow of the Pugli through its natural course.

Now, it is not disputed that in the compromise as between the plaintiff and the defendant No. 1 certain reservations had been made in favour of the defendant No. 2; and the declaration that the plaintiff's rights and the defendant No. 2's disabilities should be subject to that compromise is therefore a declaration in favour of the defendant No. 2; and so, that reservation in the decree is not challenged in the appeal. But the contention is that no declaration at all should have been made. To appreciate the contention and deal with it, it is necessary to go a little deeper.

In Suit No. 102 of 1915 which arose out of disputes between Makrapara (defendant No. 1) and Lankapara (defendant No. 2) in consequence of the bunds and embankments, etc., which they had erected to the prejudice of each other in the Bhutan as well as in British territories, the main terms of the compromise, so far as they are relevant for the purposes of this case, were as follows:—That the common boundary between the Makrapara and the Lankapara grants would be ascertained and demarcated; that the bunds and embankments set up by Makrapara so far within the Bhutan territory would be kept intact, with liberty to repair; that the mouth of the Gorgonda was fixed at a width of 70 feet and Lankapara would keep that width free and remove a sunken bund which they had erected within that space, but would be at all times at liberty to take such measures as they might consider necessary, by erection of piers, abutments or bunds, beyond that width, for protection of their own property; that neither of the parties would be at liberty to erect any fresh bunds or embankments in the Bhutan territory without the permission of the other; and there was a further clause which was in these words:—

That the parties agree that after demarcation of the common boundary as provided for in clause 1 hereof an equal free way for the passage of water on either side of the common boundary.(sic.) such demarcation will and shall be maintained by the plaintiff No. 1 without prejudice to the rights of the parties to erect such embankments for the protection of their grant lands as they consider necessary provided always that the rights and obligations created and imposed by the leases under which the said tea grants are respectively held by the two tea company parties, that is to say the Anjuman Tea Co., Ltd., and the Lankapara Tea Co., Ltd., under the Government are not in any manner whatsoever affected or interfered with.

Pursuant to the terms aforesaid there was a demarcation of the common boundary between the two grants, the mouth of the Gorgonda, which had been fixed at a width of 70 feet by the compromise as aforesaid, was reopened, the sunken bund as agreed upon was removed, and on the report of certain experts appointed for the purpose a space of 110 feet on either side of the common boundary, that is to say, a total width of 220 feet was fixed as the free way for the passage of water of the Pugli. There have been more than one execution case as regards this compromise decree, and as far as one can gather a keen contest between the two parties as to whether the rights secured by the compromise decree have been duly regarded or not. These contests were carried up to the High Court on more occasions than one. One such execution matter, the subject matter of which was the prayer to have the mouth of Gorgonda cleared up further, was pending at the time when the present suit was instituted and is referred to in the plaint, as already stated.

It would have been of some assistance to us and certainly interesting to know what exactly were the bunds and embankments that were there or had been erected by the first two defendants prior to 1915 and with regard to which the suit was instituted or which were covered by the compromise decree. But we are told that of this there is no evidence in the present case. It may be noted that in the plaint in the present suit it was stated that the 26 bunds and embankments shown on the plaint map were erected by the first two defendants “during the last 10 or 12 years,”—suggesting that they came into existence since the suit of 1915. But whatever that may be, in the present suit the first two defendants, in arriving at a compromise between themselves, did not purport to go back upon the compromise decree in the previous suit and, on the other hand, purported to regard it as still governing their relations and they only provided for some variations and modifications in the light of such circumstances as had arisen since that date. The several terms of the compromise that are relevant for our present purposes, as having a bearing on the contention which has been urged before us on behalf of the appellant, are the following:—

3. The defendant No. 1 Anjuman Tea Company, Ltd., is hereby restrained by a permanent injunction from executing the said decree in suit No. 102 of 1915 T., so far as excavating and removing the sand and silt from the mouth of the river Gorgonda.

7. That subject to all the terms of this compromise petition that compromise decree in suit No. 102 of 1915 T., Sub-Judge's Court, Jalpaiguri, between the defendant No. 1 Anjuman Tea Co., Ltd., and defendant No. 2, Lankapara Tea Co., Ltd., and others, as modified hereby will stand good and be binding between the parties of this suit.

8. That the parties agree that the channel mentioned in para. 5 of the plaint in this suit as passing through the Makrapara land to the Surti river was never or is not the main or any channel of the Pugli and the defendant No. 1 shall have the right to use it in any way that is considered necessary.

9. That the parties agree that in pursuance of cl. 6 of the petition of compromise in the said Suit No. 102 of 1915 T the common boundary line between the Makrapara Tea Estate and the Lankapara Tea Estate was duly fixed and a free way of 220 feet for the passage of Pugli water on both sides of the common boundary so demarcated (that is to say, 110 feet on each side of the said common boundary line) was agreed to be maintained in accordance with the joint report of Mr. Desbruislies and Mr. G.C Biswas, Engineers. It is further agreed that the said waterway of 220 feet should in no way be interferred with by any of the parties on any grounds whatsoever.

10(a). The plaintiff's right to have the natural flow of water of the Pugli river through its natural course is hereby declared and it is further declared that the defendants have no right to interfere with such right, save and except that the defendants Nos. 1 and 2 shall have liberty to erect such embankments beyond the said 220 feet of waterways for the, protection of their grant lands as they consider necessary as laid down in cl. 6 of the petition of compromise in said Suit No. 102 of 1915T.

(b) It is further declared that the defendants have no right to erect or cause to be erected any embankments, spurs, dams or bunds, etc., in the bed of the river Pugli within the said 220 feet of free waterway or to do or cause to be done anything in order to narrow down the said bed or divert the water of the Pugli river.

Very high ground was taken by the defendant No. 2 in the written statement that he filed in the suit. Some of the averments in his written statement may conveniently be reproduced. In para. 3 it was pleaded that he has absolute and indefeasible right under the law as well as under the terms of the Lankapara lease to erect as protective measures any bunds, embankments, etc., in any river or stream causing or threatening to cause damages to his estate. In para. 5 it was stated that the embankments, bunds, etc., referred to in the plaint as erected by him had one and all been erected as protective works for the safety of the Lankapara estate, from invasion of the Pugli river and in order to keep it in its natural course from which it had been diverted by the obstructions which had been erected by the defendant No. 1. And in para 8 it was repeated that—

This defendant No. 2 firmly repudiates the allegation made in para. 15 of the plaint that defendant No. 2 has no right to make and erect or cause to be made and erected or maintain the embankments, spurs dams and bunds, etc., in or about the bed of the Pugli river and that the plaintiff is entitled to get the embankments, etc., * * * * * * * * in the bed of the Pugli river or any other embankments, etc., which the defendant No. 2 may hereafter make and erect, etc., * * * * in the bed of the Pugli removed and also to restrain the defendant No. 2 from erecting any embankments, etc., * * * * * in or about the bed of the river Pugli; and says that the defendant No. 2 has every and absolute right to make and erect, etc., * * * * in or about the bed of the Pugli river such embankments, etc., * * as are or may be necessary and required as protective works, etc., etc.

It was pleaded that there was no collusion between him and the defendant No. 1 and that on the other hand he was always fighting the latter. It was also denied that the bunds, etc., erected by him in the Pugli had narrowed down the channel and the natural course of the river or had caused any diversion or obstruction to the same.

Some 20 issues were framed in the suit embracing a multitude of matters; but on the compromise being entered into between the first two defendants, all except six of them, were struck out. These 6 issues were the following:—

1. Has the plaintiff any cause of action?

2. Is the suit barred by limitation?

5. Have the defendants Nos. 1 and 2 erected embankment?, spurs and bunds, etc., in the bed of river Pugli and have thereby substantially and materially interfered with, counteracted, impeded and obstructed or diverted the free and natural flow of water through the original and natural course of the Pugli? If so, are the defendants Nos. 1 and 2 entitled to do so?

8. Has the plaintiff any right to have any of such bunds, etc., made by the defendant No. 1 or by the defendant No. 2 removed? Is the plaintiff entitled to have a permanent mandatory injunction for that purpose?

15. Is the plaintiff entitled to any of the declarations sought for?

16. To what relief, if any, is the plaintiff entitled?

It will be observed that in cl. 8 of the compromise as between the first two defendants, it was agreed upon and admitted that the western channel (the channel which passes through Makrapara into the Surti river) never was nor is the main or any channel of the Pugli (vide para. 8 of the compromise). It should be remembered that in the plaint it was stated that the main current of the river flows through that channel. On this Mr. Chakrabarti has argued on behalf of the appellant that after this admission the plaintiff is not entitled to change his Mr. Chakrabarti puts it—and complain of any obstruction on the southern channel and get any relief against his client on the basis of such complaint. He contends that such a variation in the pleadings on which a suit is founded cannot be permitted. We confess we do not see the force of this contention; for, though in the plaint the position which the plaintiff took was that the western channel carried the main current and that position has now been abandoned, it was never suggested anywhere that the western channel was the only channel, while on the other hand the plaint and the map filed along with it shows beyond the shadow of a doubt that the southern channel was also said to be a channel of the Pugli and the obstructions which the appellant had erected on it were specifically referred to and complained of. This controversy has also been very fully dealt with by the Subordinate Judge. He held that the western as well as the southern channels were natural and not artificial streams; that the plaintiff has no lands on the bank of the western channel and he is not a riparian owner with respect to it; that as regards the obstruction on the western channel it was only the resultant interferences that the obstructions caused to the Gorgonda mouth and the southern channel, and also the obstructions on the southern channel itself which the defendant No. 2 had caused, which affected the plaintiff; and that it was nowhere stated in the plaint that the bunds and embankments, etc., erected on the bed of the Pugli had interfered with the course of the river through the western channel only.

Nextly, Mr. Chakrabarti has referred to the fact that in pursuance of the compromise in the suit of 1915 it had been found that the common, boundary between the Lankapara and Makrapara grants was the line passing through the southern channel and a free way of 220 feet, that is to say, 110 feet on either side of that line was the channel to be kept open (vide para. 9 of the compromise) and that compromise and the decree on it were expressly upheld by the present compromise between the plaintiff and the defendant No. 1 (vide para. 7 of the compromise). And he has also referred to the fact that by the said present compromise “the defendants Nos. 1 and 2 shall have liberty to erect such embankments beyond the said 220 feet of waterways for the protection of their grant lands as they consider necessary as laid down in cl. 6 of the petition of compromise in the said suit No. 102 of 1915” [vide para. 10(a) of the compromise]. Upon these two facts Mr. Chakrabarti has argued that the plaintiff cannot be allowed to rely upon any other obstruction on any other part of the waters and his right in respect of all such obstructions must be treated as having been entirely adjusted, leaving him no complaint outstanding on which he can claim any other Relief as against the appellant. It has also been argued in this connection that if any relief is granted to him in respect of any other obstruction (e.g, in respect of the bunds Nos. 1 to 21 which are beyond the free space of 220 feet on the channel) that would be inconsistent with the liberty reserved to the defendants Nos. 1 and 2, in clause 10(a) of the compromise just quoted. This argument, in our judgment, is not tenable. It seems to us that in paras. 9 and 10(a) and (b) the parties to the compromise had in contemplation only that particular course or arm of the southern channel through which the common boundary between Lankapara and Makrapara passes and that they were laying down provisions for the free passage of water in that course or arm only; and that any other course or arm of the southern channel was beyond the reach of those paragraphs. In our opinion, the liberty that was reserved related to that particular course or arm only. Of course, it is clear that so far as this reserved liberty is concerned the plaintiff cannot, so long as the compromise stands, ask for any other relief contrary to its terms. But the position of the defendant No. 2 is not so secure; because he is not a party to the compromise and cannot take any benefit out of it unless the defendant No. 1 chooses to enforce, or at least consents to the enforcement of the compromise for the benefit of the defendant No. 2. But whatever that may be, we do not see that we can hold that by reason of the paras, referred to above the plaintiff can be held precluded from claiming any relief as regards any other course or arm of the southern channel than the one through which the common boundary passes. Mr. Chakrabarti has argued that, in any case, the fact that no other course or arm was referred to in the compromise is a piece of evidence or at least an indication that the plaintiff has no rights in any other course or arm than the one specifically referred to. With this argument we do not agree. Of course, as regards the existing bunds and embankments on the other arm or course of the southern channel which have been erected by the defendant No. 2 (viz., Nos. 1 to 21), as stated in para. 10 of the plaint, the claim for their demolition was given up by a different clause, namely, para. 10(d) of the compromise and there the matter is at an end. But as regards such of the reliefs claimed against the defendant No. 2 as were left outstanding after the compromise, it is the evidence, oral and documentary, in the case, and not the compromise which would determine them.

Thirdly, Mr. Chakrabarti has contended that the obstructions that have been complained of as against the defendant No. 2, namely, the bunds and embankments Nos. 1 to 21, are all on a channel of the river Pugli which does not appertain to its “original and natural course”, and inasmuch as that is so the defendant No. 2 had every right to put up those obstructions and the plaintiff could not claim any right to have them removed. The expression “original and natural course” as used in this argument requires a little explanation. It was not suggested,—on the other hand it was expressly repudiated—that the expression means the very first natural course which the river took at its inception; but the expression has been used in contradistinction to a natural course which the river has taken in very recent times, leaving or deviating to a certain extent from its wonted course, owing to natural causes. The contention is that in such circumstances, if the owner of the land, through which the river thus chooses to take its course, erects bunds and embankments in the bed of the river or alongside its banks, the lower riparian owner has no cause of action. The legal aspect of the proposition will be considered hereafter. But as a hypothesis of fact, whether the position can be supported is the first thing to consider. It will be seen that in the appellant's written statement no such plea was taken. Nor is there in the judgment of the Court below anything to indicate that such a contention formed a part of the appellant's defence there. In that Court it was at one stage disputed that the Pugli was a tidal and navigable river, but that fact has not been disputed here. Neither in the judgment of the Court below nor in the evidence adduced is there anything expressly said to the effect that the appellant's case was that the obstructions Nos. 1 to 21 are on a part of the waters suddenly or recently formed. The controversy in the Court below to which the appellant almost entirely confined his attention was that the plaintiff's grievance was that the western channel which represented the main course of the river had been interfered with, with resultant disturbances and interferences at the Gorgonda mouth and in the southern channel, and inasmuch as the plaintiff had not admitted in his compromise with the defendant No. 1 that the western channel was not the main or any channel of the river, he is not entitled to change his case and ask for reliefs on the basis of the obstructions on the southern channel. This matter has already been dealt with under the first contention of the appellant noticed above. To establish that the channel on which the obstructions Nos. 1 to 21, have been put up by the appellant is not an “original” channel but a new channel, the appellant has relied upon three matters. In the first place he would read para. 11 of the plaint as containing an admission to that effect. Such reading, however, in our opinion, is only a misreading. There the western channel is spoken of as carrying the main natural current; then it is said that by putting up obstructions on the western channel “the original and natural course” of the river has been diverted into the southern channel. The appellant would read these statements as indicating that it was only the western channel which is the original one: whereas the averments only mean that the natural course of the waters which would otherwise have flown along the western channel which was its original course have taken a new course through the southern channel; in other words the statements do not exclude the southern channel also being an “original” channel. Secondly, the appellant relies upon his grant map Ex. B which shows the river at this part without the loop on which obstructions Nos. 1 to 21stand: But this map was prepared more than 30 years ago, i.e, in 1898-1899; and even if it be assumed that the stream which flowed through the leasehold and did not form a boundary was depicted in all its details in the map, there is no knowing how soon or how long thereafter the loop was formed. No conclusion from this map can therefore be drawn that the loop was only a recent or a new creation. Lastly the appellant has referred to the proceedings in execution in the course of which the river at this spot was surveyed and explored. But these proceedings were not intended to find out the history or origin of the loop, but only to give effect to the compromise-decree, such as it was as between the first two defendants. The plaintiff was no party to the proceedings and it is not easy to see how they are evidence as against him. We cannot, therefore, hold that the loop is not an “original and natural course” of the river in the sense in which Mr. Chakrabarti has sought to use the expression.

We pass on now to the question whether the declaration which the plaintiff has obtained can be supported. To clear the ground for a discussion of the question it is necessary to refer to another branch of Mr. Chakrabarti's argument which is that the obstruction complained of against the appellant have not in fact interfered with the flow of the stream in Gopalpur. To support this contention Mr. Chakrabarti has drawn our attention to certain passages in the “Report and affidavit” (Ex. 1) and the “Discharge calculations” (Ex. 4) of Mr. Bhola Nath Banerji. These, in our opinion, do not support his argument. On the other hand, on the evidence of this gentleman, it is perfectly clear that these obstructions are for the major part of them right on the bed of the river and are not purely protective works: they do raise the level of the river, obstruct its current and increase its velocity. The Subordinate Judge was right in holding that the obstructions have diverted the course of the stream and also caused a substantial alteration in the flow of the river, impeding the natural stream at places and thereby causing a large volume of water to flow with greater velocity through the plaintiff's portion of the river and thus causing damage to his estate. The mandatory injunction the plaintiff had precluded himself from getting. But the prohibitory injunction he had asked for has also been refused to him. There can be no question that upon the right which the plaintiff claimed to have the encroachments removed and the allegation that he set out in his plaint, namely, that the defendants had not only put up the bunds and embankments, etc., but were still making similar erections “in and across the bed of the main Pugli river during the last 10 or 12 years and are continuously making additions and alterations to them”, and upon the defence of the appellant denying any such right on the part of the plaintiff and on the other hand setting up his own “absolute and independent right” to erect such obstructions in the bed of the river, and furthermore there having been no statement in his written statement suggesting even remotely that he did not intend to erect other obstructions or add to or alter the existing obstructions in future, a case for a prohibitory injunction was completely established. The Subordinate Judge has refused this relief on a ground which he has stated in his judgment thus:—

As the Bengal Embankment Act is in force in the district of Jalpaiguri it is no longer necessary for the plaintiff to get a perpetual injunction of the nature prayed for in cl. (g) of para. 19 of the plaint.

The Subordinate Judge, in our opinion, was in error in thinking that the Bengal Embankment Act afforded a sufficient protection to the plaintiff. The appellant, if he succeeded in getting the permission of the Collector to back him in, what he did, would satisfy the requirements of the Act; and even if he commits an offence and is hit by its penal provisions, the obstructions may or may not be removed at the discretion of the executive authorities. The conviction of the appellant under the Act, if any such conviction is had for any obstruction that the appellant may put up in future, would be but a poor consolation to the plaintiff; whereas, for the injury that he apprehends, the law entitles him to a far surer and more satisfactory relief in the shape of a perpetual injunction.

The propriety of the declaration that has been made in this case has, been challenged upon several grounds to which it is necessary now to advert. The case of Sreenarain Mitter…Defendant; v. Sreemutty Kishen Soondery Dassee…Plaintiff. was cited as laying down a principle which this case offends. It was said in that case:—

It is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not, and in every case the Court must exercise a sound judgment as to whether it is reasonable or not under all the circumstances of the case to grant the relief prayed for. There is so much more danger in India than here of harassing and vexatious litigation, that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation.

This was said in a case in which no consequential relief was asked for or could be granted; but the principle laid down, in the case is one to which no exception can possibly be taken. And it may also be pointed out that in a later decision of the Privy Council in the case of Kattama Natchiar v. Dorasinga Tevar their Lordships explained the principle further and observed that even in a case in which some consequential relief might, if prayed for, have been granted, it would still be a matter of discretion whether the Court should make a mere declaration in the particular case. These cases were prior to the enactment of the Specific Relief Act (I of 1877), but there is no reason whatever to doubt the correctness of the proposition referred to above. The proviso to s. 42 of the Act does not hit the present case, for the plaintiff did ask for consequential reliefs—all such reliefs as he was entitled to at the date he instituted the suit. The case of Musstt. Deokali Koer…Plaintiff, v. Babu Kedar Nath & Ors.…Defendants, was cited, but the declaration which has been made in this case is not an eccentric-declaration but a declaration which, in substance, is an affirmation of the right which he claimed and a negation of the pleas that were taken in denial of that right. The decision of the Judicial Committee in Sheoparsan Singh v. Ramnandan Prasad Singh has been relied on. That, however, was a case in which the suit failed at the outset, for the plaintiffs, who had asked for a declaration that they were next reversioners to the estate of a testator and as such were entitled to apply to the Court for revocation of the will, when as a matter of fact probate of the will had already issued, were persons who were not clothed with the legal character or title which would authorise them to ask for the declaration. Where a right alleged on behalf of the plaintiff as owner of a property is denied on behalf of the defendant, there can hardly be an argument that a declaration may not be granted, subject, of course, to the discretion which the Courts always have in these matters [Joseph v. Calcutta Corporation]. It has been argued that where the plaintiff asks for an injunction as the substantial relief and that injunction cannot be granted, a declaration of title which was asked for only as incidental to the substantial relief, the declaration, should be refused, and the case of Basaweswaraswami v. The Bellary Municipal Council is referred to. This is not a case in which it has been held that the injunction cannot be granted; the Court has not granted the injunction because in its opinion, an injunction is unnecessary in view of the provisions of the Bengal Embankment Act,—a view which, as already observed, is not correct.

But we are not prepared to support this bare declaration for more reasons than one. It is likely to be a source of dispute in future because it is not sufficiently specific in its character, not having defined the area over which it is to act. Nextly, it may also be said that it is unnecessary, because it purports merely to recite the law, such as the learned Judge understood it to be, and is not likely to be of any real utility to the plaintiff; for, in a future suit which he may have to institute, should any fresh obstruction be caused, this declaration he will have without any difficulty, the moment he shows that he is a lower riparian owner and that there has been no contract which precludes him from his rights as such. Thirdly, we fail to make out what the learned Judge was providing against by declining to grant an injunction against the defendant No. 2 and yet declaring that he had no right to erect bunds, etc., in the beds of the river, etc. We are clearly of opinion that the plaintiff did make out a case for a perpetual injunction which is one of the substantial reliefs that he asked for.

Mr. Chakrabarti has contended that it is not open to this Court to grant the plaintiff the perpetual injunction which he failed to obtain in the Court below. He has said, firstly, that the law does not permit an appellate Court to make such a decree in the absence of an appeal by the plaintiff; and nextly, he has pointed out that in the memorandum of cross-objection which the plaintiff has preferred, the plaintiff has not, while he has taken other points, asked for such a relief. We are of opinion that the wide language of O. XLI, r. 33 of the Code would warrant us in making such a decree. And in this connection we may refer to two decisions. Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur and Trustees for the Development of the City of Rangoon v. G.S Behara & Sons. We are also of opinion that the fact that the plaintiff has not preferred an appeal does not matter; for he may have felt satisfied with the declaration, if that were allowed to stand. Nor does the fact that he has not asked for such a relief in his cross objection, in our opinion, create any difference, so long as the prayer was there in the plaint and has not been abandoned.

In granting the injunction a distinction must be made between the alveus or ordinary natural bed of the river and land on the sides of the river which may go under water in times of extraordinary flood. In the case of Maung Bya v. Maung Kyi Nyo their Lordships of the Judicial Committee have considered some of the aspects of the law relating to the rights and liabilities of riparian owners and have referred to a number of leading decisions bearing on it. Their Lordships have pointed out that successive riparian owners are each entitled to the unimpeded flow of water in its natural course and to its reasonable enjoyment, as it passes through his land, as a natural incident of the ownership of his land. In one of these cases, the leading case of Bickett v. Morris, Lord Cranworth, speaking of riparian proprietors and adverting to the difficulties of determining in anticipation what damages may result in flood time, observed:—

The appellant contended that, as a consequence of this right, every riparian proprietor is at liberty at his pleasure to erect buildings on his share of the alveus, so long as other proprietors cannot show that damage is thereby occasioned or likely to be occasioned to them. I do not think this is a true exposition of the law.

Also—

They are allowed to say, “We have all a common interest in the unrestricted flow of the water, and we forbid any interference with it?” This is a plain, intelligible rule, easily understood, and easily followed, and from which I think your Lordships ought not to allow any departure.

Lord Westbury expressed himself thus:—

Now, the interest of a riparian proprietor in the stream is not only to the extent of preventing its being diverted or diminished, but it would extend also to prevent the course being so interfered with or affected as to direct the current in any different way that might possibly be attended with damage at a future period to another proprietor.

Lord Chelmsford L.C observed:—

In this case, mere apprehension of danger will not be sufficient to found a complaint of the acts done by the opposite proprietor, because, being on the party's own ground, they are lawful in themselves, and only became unlawful in their consequences upon the principle of sic utere tuo ut alienum non laeda. But any operation extending into the stream itself is an interference with the common interest of the opposite riparian proprietor, and, therefore, the act being prima facie an encroachment the onus seems properly to be cast upon the party doing it to show that it is not an injurious obstruction.

In Menzies v. Breadalbane Lord Lyndhurst observed that a proprietor on the banks of a river has no right to build a mound which * * * would, if completed in times of ordinary flood; throw the water of the river on the grounds of a proprietor on the opposite bank, so as to overflow or injure them. He says—

It is clear beyond the possibility of a doubt, that by the law of England, such an operation could not be carried on. The old course of the flood stream being along certain lands, it is not competent for the proprietors of those lands to obstruct that old course, by a sort of new waterway, to the prejudice of the proprietors on the other side. * * * * The ordinary course of the river is that which it takes at ordinary times; there is also a flood channel: I am not talking of that which it takes in extraordinary or accidental floods; but the ordinary course of the river at the different seasons of the year must, I apprehend, be subject to the same principle.

So far then as regards the alveus or natural bed of the river and the ordinary course of the river through its flood channel, there can be no difficulty in holding that the upper riparian owner is not entitled to put any obstruction, at least none, to quote the words of the Judicial Committee in the case of Kali Kishen Tagore v. Jodoo Lal Mullick, as would, interfere with the flow of the water as it had been accustomed to flow or would seriously and sensibly divert that flow so as to be an injury to the plaintiff's rights.

As regards obstruction which a riparian owner may put up in his Own lands or at times of extraordinary floods to protect himself and other riparian proprietors against a common enemy, as it were, the law is different. The principles have been explained in Whalley v. Lancashire and Yorkshire Railway Company and also in such cases as Menzies v. Breadalbane In Ridge v. Midland Railway Company Coleridge, C.J expressed himself thus:—

There are two riparian proprietors and occupiers of land on the opposite banks of the same river, the land of one being some feet lower than that of the other. In ordinary times this makes no difference, because the level of the plaintiffs' land is much above the surface of the stream, but in times of flood occurring at uncertain intervals and with uncertain volume and force, if the river overflows its banks at all, it always overflows the lower bank. That bank was defendants'. The defendants wanted to build upon the land subject to flood; they had a right to build upon the land, and, according to all the cases, including those which have been adjudicated upon by such lawyers as Tenterden, Tindal and Lord Esher; it is a matter of common law right that every riparian owner is justified in preventing the river overflowing his land. Tindal, C.J expresses his view thus: “At common law the landholders would have the right to raise the banks of the river and brook from time to time, as it became necessary, upon their own lands, so as to confine the flood water within the banks, and to prevent it from overflowing their own lands.” Trafford v. The King. That is aright everybody may exercise without the slightest objection. But in improving his property the owner must not injure that of another.

The law has been thus summarised:—

The result of the cases appears to be that a riparian owner may make defences against floods anywhere on his own land, provided he does not interfere with the alveus or with a recognised flood channel, but if flood water comes on to his land he must not take active steps to turn it to his neighbour's property.

See Coulson & Forbes' Law of Waters, 5th Ed., p. 172.

Dependent as the liability of the upper riparian owner would be upon a variety of circumstances which it is not easy to determine beforehand in cases of obstructions of this nature, mere apprehension of injury would not be sufficient to found a cause of action, and so no injunction in respect of them can legitimately be granted.

There is no reason to suppose that in this case the bed of the river so far as it passes through the Lanka para and by its side has not been sufficiently denned. The maps Ex. 12 series, sheets P1, P2, P3, P4 and P4, prepared by P.W 4 Anadi Charan Sen Gupta and countersigned by P.W 1 Bhola Nath Banerji appear to have been prepared with considerable care and there is nothing to suggest that they do not represent the branches of the river correctly. In these sheets the high banks of the river have been shown in red pencil lines. The plaintiff, in our judgment, is entitled to an injunction with reference to these maps.

We, therefore, order that the declaration which the plaintiff has obtained as against the defendant No. 2 be set aside and in lieu of it a permanent injunction do issue in plaintiff's favour restraining the defendant No. 2, subject to the compromise between plaintiff and the defendant No. 1, from erecting any bund or embankment, in the bed of the river Pugli as depicted on the maps Ex. 12 series, sheets P15 P2, P3, P. and P, so as to interfere with the flow of its water as it has been accustomed to flow or so as to seriously and sensibly divert that flow to be an injury to the plaintiff.

The defendant No. 3 has complained that he should not have been kept on as a party to the suit when the plaintiff chose to give up his contest with the defendant No. 1 and elected to enter into the compromise. But we do not think that when after the compromise the plaintiff proceeded with the suit against defendant No. 2, he could very well ask that the defendant No. 3 should be left out the defendant No. 3 being a riparian owner vitally affected by the acts complained of in the suit was certainly a proper, and perhaps also a necessary party. His rights of course cannot be affected by any compromise that the plaintiff may have chosen to enter into. It should; therefore, be noted in the decree that the compromise as between the plaintiff and the defendant No. 1 will not affect the defendant No. 3.

The appeal is thus allowed in part, the decree of the Court below being modified as indicated above; and subject to such modification the rest of the decree of the Court below will stand. There will be no order for costs in the appeal or the cross-objection, except that the appellant should pay the cost of the defendant No. 3 in the appeal, hearing-fee being assessed at 15 gold mohurs.

A.K.D

Appeal allowed in part.