The judgment established the unfettered riparian rights of the plaintiffs and clarified the jurisdiction of the Civil Court in disputes concerning water-courses.

JUDGMENT :

Dr. A.K.RATH, J.

1. State of Orissa and its functionaries are the appellants against an affirming judgment.

2. The plaintiffs-respondents filed the suit for permanent injunction restraining the defendants from raising the level of the bed and bund of the suit Jama Nala, transferring the same to the Irrigation Department from the Revenue Department and for certain ancillary reliefs. The case of the plaintiffs is that there is a hill stream starting from the mountain and forest near Hadichira village in ex2 Dharakote estate. The water channel runs from west to east up to the village Mahupadara and passes through the lands of several villagers including the plaintiffs’ village. From its starting point up to some distance, the stream is called as Nikiti Nala, whereafter the same is locally known as Jama Nala. The stream is in existence since time immemorial. The same is the source of irrigation of different villages including the lands of the plaintiffs’ village. The raiyats of the plaintiffs’ village have easementary rights to take water of the channel for irrigation. The channel passes through a culvert constructed over P.W.D. road running from Aska to Digapahandi. Some culverts have been constructed by the plaintiffs’ villagers to facilitate the supply of water from the channel to their nearby lands. The water of the channel falls in Amba Gahi lying in its north. The water also falls in the irrigation tank of Mahuapadar village. The villagers of Mahuapadar use the water of the channel for irrigation. While the matter stood thus, the Irrigation Department of the Government of Orissa excavated a canal from the Rushikulya canal for taking the water of the main Rushikulya canal into the new canal through a pipe fixed to it known as no.6 pipe. The new canal runs from the south to the north and is connected with the suit channel at a point about a kilometer off from Aska-Digapahandi road. The water level of the canal is about 3 to 4ft. higher than the bed level of the suit channel. The canal water falls into the channel. The engineers of Irrigation Department have attempted to raise the level of the bed of the channel by about 3 to 4ft. by putting earth. They have also attempted to raise the level of the bund of the channel by 3 to 4ft. by putting a cross-bund over the channel at the end of the canal just near the masonry drop to stop the flow of water of the canal to amalgamate with Jama Nala. When the plaintiffs’ villagers objected to the raising of height of the bund and the bed of the suit channel, the villagers of Mahuapadar with the help of the officers of Irrigation Department tried to invade the easementary rights of the plaintiffs. It is further pleaded that originally the channel belonged to the Zamindar of Dharakote. After abolition of the estate, the same is under the control of the Revenue Department, Government of Orissa. The engineers of the Irrigation Department moved the Tahasildar, Aska to transfer the channel from the Revenue Department to the Irrigation Department. If the level of the bed and the embankment of the channel is raised and the cross bund is put, there will be obstruction to the free flow of water of the channel, level of water will swell up by 3 to 4ft., thereby the lands of the plaintiffs’ village will be inundated by excess water of the channel. The excess water of the channel will break the bund of the channel and damage the crops. The same will remain a perennial problem. The excess water will pass through the adjoining fields from the western portion of the channel spoiling the lands and the crops. The same will fall into Amba Ghai and its adjoining nala. Water will flow towards the field of the plaintiffs and cause irreparable loss and damage. In rainy season, water will accumulate in the field of the plaintiffs’ village. Raising of level of the bed of the channel will also cover up the openings in the culverts through which water passes. The same will obstruct the supply of water and th