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Judges : P.SUBRAMONIAN POTI
M.KANNA AND OTHERS - Appellant
Versus
T.CHATHU AND ANOTHER - Respondent
Case No : S. A. No. 528 of 1966
Decided On : 11/12/1969
Advocates Appeared :
T. S. Venkiteswara Iyer; R. C. Plappilly; For Appellants P. C. B. Menon; A. P. Chandrasekharan; For Respondent
RIGHT TO WATER - RIPARIAN RIGHTS - Indian Easements Act, Section 7 - The court discussed the rights of riparian owners in regard to water flowing through natural courses abutting on the lands of such owners. It held that while riparian owners have the right to use water for primary purposes without restriction, the use for secondary purposes such as irrigation is subject to the limitation that it should not cause material diminution in the supply to other riparian owners. The court referred to various legal provisions and interpretations from past judgments to establish the principle that the injury to a riparian owner by an upper riparian owner taking water from a natural course should not be sensible, and every riparian owner is entitled to have the flow of running water without sensible diminution in quantity or sensible alteration in quality.
Fact of the Case:
The plaintiffs sought a mandatory injunction to remove a construction made by the defendants across a stream and for a permanent injunction to restrain them from constructing any dam across the stream that would affect the plaintiffs' rights in respect of the water supply for irrigation of their lands. The defendants, as higher riparian owners, had constructed a granite dam across the stream, which adversely affected the plaintiffs' access to water for irrigation.
Finding of the Court:
The trial court granted a decree to the plaintiffs, restraining the first defendant from diverting water from the dam or any other mode of diversion that would injuriously affect the plaintiffs' right to the water in the stream and issued a mandatory injunction directing the first defendant to remove the construction of the dam. The lower appellate court modified the decree, allowing the first defendant to divert water from the dam site constructed by him for three days a week. The court found this arrangement unworkable for a perpetual period.
Issues: The main issue was the adverse impact of the defendants' construction of a dam across the stream on the plaintiffs' right to water for irrigation, and the determination of the rights of riparian owners in diverting water for secondary purposes.
Ratio Decidendi: The court applied the principles of riparian rights under the Indian Easements Act, Section 7, and various legal interpretations to establish that while upper riparian owners have the right to use water for irrigation, such use should not cause material diminution in the supply to other riparian owners. The court held that the injury to a riparian owner by an upper riparian owner taking water from a natural course should not be sensible, and every riparian owner is entitled to have the flow of running water without sensible diminution in quantity or sensible alteration in quality.
Final Decision: The court allowed the second appeal subject to the directions that the masonry dam constructed by the first defendant should remain, but the first defendant or any party under him would not be permitted to put up any temporary or any other construction over such masonry dam or to prevent the flow of water above the masonry dam. An injunction was issued restraining the first defendant from obstructing the flow of water.
1. The appellants in this second appeal are the plaintiffs in a suit for mandatory injunction to direct the defendants to remove the construction made by them across the Nochipully amsom and for a permanent injunction to restrain them from constructing any dam across the said stream at the site or at any other place so as to injuriously affect the plaintiffs' rights in respect of the supply of water from the said stream for the irrigation of their lands. The plaintiffs are the owners of certain paddy
lands which lie adjacent to the which at the site flows from east to west. The water from this thodu was being used for irrigation of the paddy fields of the plaintiffs, and it is the case of the plaintiffs that without such facilities for irrigation from the said thodu it is not possible to cultivate paddy in their paddy fields. They claim the right for continued supply of such water from the stream without interruption or obstruction or even any diminution in the volume of supply. The first defendant is cultivating certain lands belonging to the second defendant lying in the left bank of the above stream. The land of the defendants lies at a higher level and the stream flows down from that point to where it touches the plaintiffs' property. According to the plaintiffs, first defendant, in spite of the protest of the plaintiffs, attempted to construct a granite dam across the stream at a spot about 60 yards higher up the stream from the plaintiffs' dam and the effect of such construction would be to impede the free flow of water from the higher reaches of the stream to the portion of the stream lower down adjacent to plaintiffs' property. The plaintiffs have themselves constructed a dam at the point where the stream flows adjacent to their property so as to collect and divert water for the purpose of irrigation of their paddy fields. The action of the first defendant in attempting to put up a granite dam and thereby impede the free flow of water to the lower reaches of the stream is characterised in the plaint as wrongful and illegal and therefore liable to be restrained by an order of injunction. A mandatory injunction is prayed for removal of the obstruction already caused. The first defendant is the main contesting defendant, the second defendant adopting the contentions of the first defendant. In his statement the first defendant denies the case of the plaintiffs that there was a granite dam in existence for many years adjacent to plaintiffs' property as contended by the plaintiffs and contends that the defendants were not putting up any new construction by way of a dam across the stream as contended, that at that point there was already a dam and what was being done was only to strengthen that dam since temporary dams are liable to be washed away seasonally, that the construction of a dam at the point where the first defendant was constructing was necessary for the purpose of irrigating his own paddy fields, that such diversion was being resorted to in all the previous years and that the plaintiffs have no cause of action against the defendants. After trial the court found that the dam said to belong to the plaintiffs situated across the stream adjoining his paddy fields was in existence for many years, and that the first defendant had made considerable progress in the construction of a granite dam as alleged. The court also found that the plaintiffs were badly in need of water from the stream for successfully raising each crop and that defendants also required the water from the stream for the purpose of irrigation of their properties, that the 1st defendant as a higher riparian owner can resort to any particular method of diversion of water but only without materially diminishing flow of water along the stream and that the dam in question which the first defendant had constructed adversely affected the plaintiffs to a considerable extent. In view of this the trial court gave a decree to the plaintiffs restrainin
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