Judgment

GAJENDRAGADKAR, J. :The short question which this appeal raises for our decision is whether the appellant Shankar Narayan Ranade has established his title to the running water of the river Valdevi which runs through his Inam village Vadner. The said village had been granted to the ancestors of the appellant by the Peshwa Government in 1773 A. D. This grant was continued by the British Government when the British Government came in power. The river Valdevi has its origin in the hills of Trimbak and from those hills it flows to Vadner and then to Cheheri where it joins the river Darna and thus loses its individuality. The total length of this river is about 25 miles, while its length within the limits of Vadner village is about 2 miles and 2 furlongs. The Darna river after its conjunction with Valdevi proceeds towards Sangvi and there is merged with Godavari river. The appellant is one of the shares in the Inam village of Vadner and he brought the present suit No. 12/1950 in the Court of the Civil Judge (Senior Division) at Nasik, claiming reliefs against the Union of India and the State of Bombay, respondents 1 and 2 respectively, on the basis of his title to the running water of the said river.

2. It appears that in 1942, during the period of the World War II, the Military authorities constructed barracks and other residential quarters for the army personnel within and outside the limits of Vadner. They also built a dam across the river Valdevi, within the limits of Vadner and dug a well near the bank of the river. This well fed with water carried by two channels drawn from the river. When the water reached the well, it was pumped from the well and duly stored in four reservoirs where it was filtered and then it was carried by means of pipes to the residential area occupied by the military personnel.

3. The appellant then approached the military authorities and also the Government of Bombay and claimed compensation for the use of the water and the land by the military authorities. Since his request for adequate compensation was not met, he filed the present suit on the 11th March, 1950, in a representative character under O. 1, R. 8 C. P. C. In this suit, the appellant speaking for himself and for the other sharers in the Inam village of Vadner alleged that the Jagirdars of the village were full owner of the entire area of that village, including the land, the stream and the water flowing through the stream within the limits of the village. According to the plaint, the acts of diversion of water committed by the military authorities had deprived the appellant and the other Inamdars of their rights to utilise that water for their own gains and thus had caused injury and damage to them. As compensation for this damage, the appellant claimed Rs. 1,11,250/- from the respondents. The appellant further made a claim for Rs. 750/- as compensation for the use of his land by the military authorities. The diversion of water and the use of land continued from 1942 to 1949. Some other incidental reliefs were also claimed by the appellant.

4. Respondent No. 2 contested the appellant s claim. It urged that the Inamdars were not the grantees of the soil, but were the grantees of the royal share of the revenue only; and it was urged that in any case, they had no ownership over the flowing water of the Valdevi river. Respondent No. 1 adopted the written statement of respondent No. 2 and filed the Purshis in that behalf. According to the respondents, the river Valdevi had become a notified canal by virtue of a notification issued on the 17th February 1913 under section 5 of the Bombay Irrigation Act, 1879, and in consequence, the Inamdars had lost their rights, if any, in the water of the said river and respondent No. 2 had the absolute right of the use of the said water. A plea of limitation was also made by both the respondents.

5. The learned trial Judge made findings in favour of the appellant on all the issues. He held that the Inamdars