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1961 Supreme(Ker) 402
High Court of Kerala
M. Madhavan Nair, J.
Rama Bhatta & Ors - Appellant
Versus
Krishna Bhatta & Ors - Respondent
S.A. No. 257 of 1956
Decided On : 04-10-1961
The main legal point established in the judgment is the clarification of the rights of riparian owners in respect of natural streams and the acquisition of easement rights, highlighting the distinction between natural and artificial streams and the entitlement of riparian owners to the natural flow of water.
Headnote:
Riparian Rights - Water Rights - Natural Streams - Easement Rights - Indian Easements Act, V of 1882 - S.7 - [Riparian Rights] - [Water Rights] - [Indian Easements Act, V of 1882, S.7, Illustrations (h) and (j)] - The judgment discusses the rights of riparian owners in respect of natural streams and the acquisition of easement rights in relation to water usage. It highlights the distinction between natural and artificial streams, the entitlement of riparian owners to the natural flow of water, and the acquisition of rights through prescription or grant.
Fact of the Case:
The plaintiffs sought a decree restraining the defendants from obstructing the free flow of water to their Katta (bund) and from obstructing their right of way along the bund of channels. The defendants contended that the plaintiffs had no right in the water and that the Kattas and Picotahs put up by them were ancient and not challengeable. The Munsiff held that the plaintiff's exclusive right to the water as an easement right had been barred by limitation and adverse possession. The Subordinate Judge affirmed the decree of the Munsiff, stating that both parties had equal rights as riparian owners to make use of the water for irrigation of their respective gardens.
Finding of the Court:
The court found that the rights claimed by the parties in respect of the natural streams were confused, and it needed to analyze the natural rights of riparian owners and the easement rights that may be acquired in respect of natural waters. The court also highlighted the distinction between natural and artificial streams and the entitlement of riparian owners to the natural flow of water.
Issues: The issues revolved around the conflicting claims of the plaintiffs and defendants regarding the use of water from natural streams, the rights of riparian owners, and the acquisition of easement rights. The court also addressed the confusion in the pleadings and judgments of the lower courts regarding the nature of the rights claimed by the parties.
Ratio Decidendi: The court clarified the rights of riparian owners in respect of natural streams and the acquisition of easement rights, emphasizing the distinction between natural and artificial streams. It held that the plaintiffs were entitled to the same quantity of water as before the conversion of the defendants' lands into areca gardens, and that the defendants were bound to allow the flow of such quantity of water beyond their lands. The court also directed the lower court to consider the plaintiffs' right of way over the bunds of the poramboke channels.
Final Decision: The court set aside the decree and remitted the case to the lower court for a fresh disposal in the light of its observations. It directed the lower court to dispose of the case within a period of five months and allowed the parties to adduce their respective evidences. The court also emphasized that the rights of the defendants inter se did not arise for adjudication in this case.
M. Madhavan Nair, J.
1. S. A. No. 257 of 1956 is by the plaintiffs, and S. A. No. 227 of 1956 by the 5th defendant in O.S. No. 275 of 1945 on the file of the Munsiff of Kasaragod.
2. The suit is for "a decree restraining the defendants by means of a permanent injunction
(a) from obstructing the free flow of water of channel X to plaintiffs' Katta (bund) A by the defendants putting up Kattas at H, K, K1, L or anywhere in the course of the channel;
(b) from obstructing the mamool (ancient) right of way of the plaintiffs along the bund of channels Y, C, B and X ;
(c) from putting up picotahs (mechanical ladles) at M, N, O, P, Q, R, S or anywhere along the course of the channels X, C and Y ;
(d) from leading water from channel X to the defendants' new arecanut gardens raised in Kolke fields (three crop paddy flats 604/8, 605/5 ... 601/6 and for a mandatory injunction directing the defendants to remove the aforesaid Kattas ... and picotahs along the channels ... and to remove the obstruction put in the plaintiff's pathway along the bunds of the channels X, C, Y and along the cement sluice B ........".
3. The plaintiffs are the owners of the areca gardens bearing R. S. Nos. 605/7, 12, 13 ; 651/1, 2, 6, 13 and 14; 658/2 ; 659/4. According to them they used to put up a Katta at point A in channel X and take the water of the stream to irrigate their areca gardens through the cement Voli (artificial channel) B. Channel X is fed by its tributory Y, and the water in channel C used to augment the water flowing from Voli B. The defendants are upper riparian owners having paddy flats upstream, recently converted into areca gardens within seven years prior to the institution of the suit. As the areca plantations require more water than paddy flats, the defendants have put up new Kattas and Picotahs by the side of their lands and appropriated most of the water flowing in the channels, thereby affecting injuriously the plaintiffs' easement right to use the water for irrigating their areca gardens and have also fenced off the way on the bunds of the channels used by the plaintiffs. Injunction as aforesaid was therefore sought by the plaintiffs to restrain the defendants from continuing the unauthorised acts and to remove the obstructions placed by them on the plaintiffs' right to water and right of way.
4. The defendants contended that the Katta A and the Voli B belong to the 1st defendant, that the plaintiffs have no manner of right in Voli B and can claim only the surplus water in the channels after use of defendants, and that the Kattas and Picotahs put up by them are ancient ones not liable to be challenged by the plaintiffs at this distance of time.
5. The Munsiff summarised the scope of the suit in paragraph 22 of his judgment thus:
"It may also be mentioned that the defendants do not claim, either by right of easement or prescription, the entire flow of water of channels Y, X and C for their properties north of the cement Voli B, cutting off the entire supply of water of these channels to the properties of the plaintiffs south of B. Their case is that they are entitled to utilise the water of these channels reasonably for irrigation of their properties, the plaintiffs being entitled only to the surplus water of these channels after such user by the defendants. It has therefore to be adjudicated upon as to what are the rights of the respective riparian owners to the water of channels Y, X and C."
He held that the plaintiff's claim for an exclusive right for the use of the water of the channels as an easement right has been barred by 'limitation and adverse possession' on account of interruptions for more than two years prior to the institution of the suit, that the Katta A and Voli B belong to the 1st defendant, that the diversion of water of the poramboke channels, X, Y and C to the defendants' garden have not materially affected the plaintiff's gardens to which the surplus water from the channels continued to flow after the defendants' use;
