Point of Law: Water in a natural stream or river course is open to use by the riparian owner for all primary purposes, irrespective of diminution in the quantity of water resulting from such use. Domestic use, use for cattle, and such other purposes are primary purposes.

JUDGMENT :

The defendants in O.S.No.183/2004 on the file of the Munsiff's Court, Nadapuram are the appellants. The plaintiff is the respondent.

2. The plaintiff and defendants are adjacent property owners on the two sides of a water channel. The property of the plaintiff lies on the north of the stream, and the properties of the defendants lie on the south of the water channel.

3. The plaintiff's case is that the defendants constructed a bund across the water channel in such a way as to stagnate water, causing the same to flow to the plaintiff's property, leading to waterlogging and damage to the improvements made in the property.

4. Therefore, the plaintiff prayed for a mandatory injunction directing the defendants to dismantle the bund. The plaintiff also prayed for a permanent prohibitory injunction restraining the defendants from putting bund across the channel.

5. The defendants resisted the claim, contending that they have the right to extract water from the channel, which is a natural stream. According to the defendants, when there was scarcity of water in summer, they would divert water to their property for percolation to the well and the pond in their property. The bund put up across the channel is not a new one, as alleged by the plaintiff. It is more than 50 years old. Defendants pleaded that they have the right to extract water from the channel as riparian owners. The defendants claimed that the allegation that the bund caused water stagnation, resulting in waterlogging, is baseless.

6. The parties went to trial. The evidence consists of oral evidence of PWs 1 and 2, and DWs 1 and 2. Exts.A1 to A3 were marked on the side of the plaintiff, and Exts.C1 and C2 were marked as Court Exhibits.

7. The Trial Court decreed the suit directing the defendants by way of a mandatory injunction to demolish the bund constructed across the water channel.

8. The defendants challenged the decree and judgment passed by the Trial Court in A.S.No.51/2005 before the Additional District Court, Vadakara. The First Appellate Court confirmed the decree and judgment passed by the Trial Court.

9. The defendants are in appeal under Section 100 of the CPC.

10. On 19.07.2007, this Court admitted the appeal on the following substantial question of law :-

“Whether on the evidence Courts below were justified in granting a decree of mandatory injunction in the absence of sufficient evidence to prove that the bund constructed, which was directed to be removed causes damages to the property of the respondent, where appellants have a right to extract water being the riparian owners.”

11. Heard Sri. M.V.S. Nampoothiry, the learned counsel appearing for the appellants/defendants and Sri.Parthasarathy, the learned counsel appearing for the respondent/plaintiff.

12. The plaintiff and defendants are the property owners on the two sides of a natural stream. The case of the plaintiff is that the defendants constructed a bund across the channel in such a manner obstructing and diverting the natural flow of the water channel.

13. The defendants' challenge is that the bund found across the channel is 50 years old, and they have the right to divert the water from the natural stream for percolation to the well and pond in their property.

14. The subject matter in this litigation deals with “riparian rights”, which refer to rights of proprietors of land on the banks of streams, arising, not from the ownership of the bed over which the water flows, but from the right of access which such proprietors have to the water.

15. In the present case, the water channel involved is natural. The parties have no case that they have acquired any right of easement regarding the water channel. What is claimed is a natural right. The plaintiff and defendants have similar rights over the natural stream.

16. In the Indian Easements Act, 1882, the rights of a riparian owner of immovable property to enjoy without disturbance by another the natural advantages arising from its situation are dealt with in