M.R. Westropp, Kt., C.J.
1. This was an action brought by the villagers of Dabhade in the Malegaon Taluka of the Nasik District against certain revenue authorities to remove an obstruction to a watercourse placed by the First Assistant Collector in charge of the taluka and confirmed by his superiors. It is sufficient for the purposes of this appeal to note that a dam had been in existence, for a great number of years across the river Girna by means of which the lands of the neighbouring villages of Dabhade and Patna were irrigated through separate channels. Constant disputes had taken place from time to time between these two villages as to the quantity of water to which each was entitled, and eventually the Assistant Collector took up the matter with the view to putting an end to the quarrels, and finding that there was more cultivated land in Patna than in Dabhade, he determined to reduce, and did reduce, the opening of the Dabhade sluice thereby diminishing the supply of water to that village.
2. The sole, question for our consideration is whether this act was justifiable. The village of Dabhade is admittedly 'khalsa', i.e., it is held immediately of Government, the State being the manager, and it has been throughout broadly contended on behalf of the revenue authorities, the appellants, that that being so, the Government are proprietors of the soil and have therefore a right, as riparian proprietors, to the water of the river, and can stop the supply at pleasure. But the position taken up by Government appears to us to be wholly indefensible. There is nothing apparently to show how the dam came to be constructed, or the date of its construction; but it has been found by the Court below, and the correctness of that finding has not been disputed here, that the village of Dabhade has enjoyed the right of receiving from this dam an equal supply of water with Patna for upwards of 280 years. Assuming, then, for the sake of argument, that the Government of this country has primarily something more than a mere usufructuary interest in the water of rivers and, natural streams in which no rights have been acquired, that is to say, that it has the right to regulate in the interests of the public the enjoyment and benefit of the water, and assuming further that the said dam was constructed by the Government of the time in order to turn the water of the river into the lands of these two villages for purposes of irrigation, it seems to us that the user found proved is amply sufficient to justify a presumption of an original animus dedicandi: see Reg. v. East Mark 11 Q.B. 877 and the cases collected in l Taylor on Evidence, para. 114, 4th edition. It is difficult to understand on what principle of law the circumstances of the village being khalsa, or, as the appellants style it, 'rayatvadi', could justify the action of the Government in this matter; for, taking it as they allege, that they are riparian proprietors, they can have, qua such proprietors, no property in the water, and the usufructuary interest being incident to the possession of the adjacent soil, it seems to follow that whatever may be the nature of the tenancy, the occupants of the land abutting on the stream, and not the Government, are entitled to the enjoyment and benefit of the water as it flows past. No doubt, all the occupants of land on the banks being equally entitled, each occupant or set of occupants is bound to use his right so as not materially to interfere with an equally beneficial enjoyment of it by the other occupants; but although an action will lie where the user by any of the occupants of the common right is unreasonable, we know of no authority for the doctrine that the Government have, at any time during the occupancy, the power arbitrarily to curtail or interfere with the right of each occupant to the enjoyment of the water as it existed at the commencement of his occupancy--a right which must have constituted a most important consideration in fixing the amount of land assessment which each occupant agreed to pay. Two cases have been cited by the learned Advocate General: Ponnusawmi Tevar v. The Collector of Madura 5 Mad H.C. Rep. 6 and Kristna Ayyan v. Venkata Chella Mudali 7 Mad. H.C. Rep. 60 but neither of these has any application to the present case,.the circumstances of which are entirely different, and there is nothing in either that we can see to support the position claimed by the revenue authorities.
3. For these reasons we confirm the decree of the Joint Judge with costs.