A customary right of way can only be acquired by dedication, and the diversion of a stream cannot affect the riparian rights of the lower riparian owners.

G. K. MISRA, J.

( 1 ) DEFENDANTS 1 to 3 and 5 to 10 are the appellants. Defendant No. 4 has been expunged as he is dead. The suit has been filed against them under O, 1, Rule 8, civil Procedure Code. Defendant 11 is the State of Orissa. Defendants 1 to 5 belong to village Luxmiprasad and defendants 6 to 10 to village Sahasapur. Plaintiffs 1 to 5 are residents of village Borigaon and plaintiffs 6 to 10 of village betuli. Plaintiffs filed the suit representing the general public, and particularly the villagers of Borigaon and Betuli. The suit had been filed in respect of Schedules A and B of the plaint; but at the commencement of the trial, plaintiffs abandoned their case in respect of Schedule A. Plaintiffs' case with regard to Schedule B land is as follows: schedule B. nd constitutes a part of a Nala (water channel) through which water flows into the lands of the villagers of Betuli and Borigaon and several other villages. This Nala is in existence since time immemorial. When the Nala becomes dry, it also serves as a way for pedestrians and cattle. The Nala is sufficiently wide in which three or four bullock carts ca" simultaneously pass side by side. Plaintiffs, defendants and other villagers bring fuel, timber, paddy and other commodities by carts and other means on the Nala when it is dry and there is no other alternate passage to serve the plaintiffs. Plaintiffs used the Nala for irrigation during rainy season and as a way during the dry season for much more than 20 years and have acquired prescriptive right of user since time immemorial. Defendants wanted to dig a tank by including B Schedule land in its bed. With the permission of the Sub-Divisional Officer, Khurda, and the collector, Puri, defendants dug a tank including B schedule land in its bed. Plaintiffs carried the matter in appeal to the Board of Revenue but became unsuccessful. The suit is for declaration of plaintiffs' right of user of the Nala, recovery of possession and for a perpetual injunction. Damage of Rs. 1000/- was claimed against defendant 11.

( 2 ) DEFENDANT 11 wholly supports the case of other defendants. Defendants 1 to 10 contested the suit alleging that the plaintiffs have no prescriptive or natural right to B schedule land either as a right of way or as a water passage. Various legal objections were raised contending that the suit was not maintainable being hit by section 91, Civil Procedure Cede, Section 6 of Orissa Act 1 of 1948 and Section 56 of the Specific Relief Act. It was further contended that as the disputed channel was a Government Nala, it was open to the authorities of the Revenue Department to change the location according to convenience and inasmuch as an alternate nala with equal efficaciousness and convenience had been provided for, plaintiffs' suit is not maintainable and that there was no diminution of volume of water supplied for the purpose of irrigation. It was also averred that the plaintiffs' suit was barred by limitation.

( 3 ) BOTH the courts below have concurrently found that the suit is not hit by Section 91, C. P. C. , Section 6 of Orissa Act 1 of 1948 and Section 56, S. R. Act and is not barred by limitation. The trial Court dismissed the claim for damages against which no appeal had been filed by the plaintiffs. The learned lower appellate Court held that the decree passed by the trial Court was capable of execution. Mr. Misra raised the identical objections in the first instance, but ultimately abandoned his argument against those findings. These questions must therefore be taken to have been conclusively decided against the defendants.

( 4 ) THE learned lower appellate Court held that the plaintiffs have natural right to the water of the channel during the rainy season and customary right to use the channel as a path during the dry season when there was no water in it. Mr. Misra contested both the findings. He raised two contentions:

(i) In view of the plaintiffs' case that the channel serves as a natural pas