1. The plaintiffs filed Suit No. 21 of 1913 in the District Court of Ahmedabad on behalf of themselves and the people of the village of Nawagam, Taluka Matar, District Kaira, against the Secretary of State for India. This village is situated on the bank of the Khari river which rises near the village of Amnagar in the Idar State. By their plaint the plaintiffs claim that they, together with the inhabitants of the other villages, are entitled to the use of all the water necessary in the Khari river from its source up to their lands for the purpose of irrigation and for all their other necessities by virtue of an arrangement made between them and Government in 1843.
2. Disputes had arisen with regard to the mode and the terms of enjoyment of the preferential rights to the water, which were referred to the arbitration of the Mamlatdar and certain other gentlemen' who prepared a statement or Kalambandhi of the rules regarding the mode and the terms for the enjoyment of the water by the said eleven villages which were thereafter called the Kalambandhi villages. In 1881, Government constructed a canal, known as the Khari Cut, to the north of the said villages to convey flood waters to the Chandola Tank. The plaintiffs also alleged that the current of the Khari river was fed by the Bhujva rivulet on this side of Amnagar and by the natural currents of the Bokhs of Prantij, and the Hatbmati, and claim that they have preferential rights to all this water as accretion to the Khari river from ancient times. When the plaintiffs had occasion to complain to Government that the waters of the Khari river were being conveyed to the Chandola Tank, they were assured that their rights were being preserved and only superfluous water was allowed to be conveyed to the Chandola Tank.
3. In 1899-1900, Government expanded the Chandola irrigation system and constructed a large reservoir near the village of Limla on the Hathmati canal to which they conveyed the waters of the Bokhs of Prantij and the Bhujva current mentioned above, thereby, so the plaintiff's allege, diminishing the water of the Khari river. When the villagers complained, the Government officers either asserted that their rights were not being interfered with, or allowed the water to flow in the Khari river according to their requirements. Still the plaintiffs complain that the now of water has been improperly diverted so that for the years 1912-13 and for several previous years their crops had been destroyed entirely.
4. In September 1909, the plaintiffs threatened to file a suit owing' to their not receiving sufficient water, whereupon they were supplied with sufficient water for that year, but in further correspondence on the subject the plaintiffs received a notice, dated December 27, 1911, that they would, be supplied with sufficient water during the years when the rainfall was normal, but in those years in which there was a scarcity they would get the same benefit as would be available to other villages. The plaintiffs complain that then, for the first time, their preferential right to the water was denied by Government.
5. The plaintiffs claim a declaration that they are entitled to a preferential right of enjoying the water of the Khari river beginning from its source and fed by the waters of other currents and rivers before the same are made available to villages other than the Kalambandhi villages, and an injunction restraining the defendant from diverting the said water to the Chandola irrigation system or any other system or from doing anything contrary to the right to be declared under the first prayer mentioned above.
6. The defendant pleads:
1. That no proper notice, as required by Section 80 of the Civil P.C. had been served upon him.
2. That the plaintiffs have not the preferential right to the waters of the Khari river from its source, as claimed, over the non-Kalambandhi villages.
3. That the plaintiffs have only the ordinary right of riparian owners.
4. That the Government as riparian owners were entitled to a reasonable use of the water of the Khari river and such use has not materially diminished the application of the water by the plaintiffs.
5. That the diversion of the water of the Khari river into the Khari Gut only takes place in flood times, and the main supply of the Khari Cut is obtained from the Hathmati weir and the Bokh reservoir works which have enabled the plaintiffs to be supplied with water in times of scarcity to which they were not entitled as of right.
7. Generally, various allegations contained in the plaint are controverted or denied and. the defendant asks that the suit should be dismissed.
8. On the issues framed on these pleadings the Joint Judge held : (1) that the Bokh reservoir was constructed in 1902, the Khari Cut in 1881, and the Bhujva stream was joined to the Hathmati canal in 1899; (2) that after the construction of these works there was some diminution in the flow of the water of the Khari river but there was none at the date of the suit; (3) that the Government were not bound by the Kalambandhi Settlement of 1843 and the levy of Pathastal rates not to diminish the supply; (4) that proper notice had heen given under Section 80 of the Civil P.C.; and passed a decree declaring that the plaintiffs had a right to the water of the Khari river proper together with the water from the Bhujva stream which was preferential to any right which the villages served by the Khari Cut canal had over such water, but that the villagers had no right to the water supplied to the Khari by the Prantij Bokh and by the Hathmati canal. As the plaintiffs had been supplied with the water, to which they were entitled, and often more, an injunction was refused.
9. The plaintiffs have appealed, while the defendant has filed cross-objections to the effect that the lower Court was wrong in granting a declaration to the plaintiffs and that the suit ought to have been dismissed with costs. (His Lordship then stated some more facts as to the history of Khari Cut and as to the Kalambandhi villages and proceeded further). The real question in the suit depends on the extent to which the defendant is entitled to draw off water for the Khari Out canal.
10. The rights of riparian owners were defined in Secretary of State v. Balvant Ganesh  28 Bom. 105. They have a right to the usufructuary interest in the water which is incident to the possession of the adjacent soil and are entitled to the benefit and enjoyment of the water as it flows past. In First Assistant Collector of Nasik v. Shamji Dasrath Patil  7 Bom. 209 it was held that they have a right to all the water which actually forms part of the stream as soon as it becomes part, whether such water comes by ordinary natural means as from springs or from the surface of the adjacent hills or from rain or is added by percolation.
11. In that case the plaintiffs' stream had been added to by percolation from a Government canal and it was held that, though Government could take steps to prevent the percolation, as soon as the canal water reached the stream by percolation, it could not be distinguished from the original natural stream. The plaintiffs contend that the decision is an authority for the proposition that, as they had rights to the original natural waters of the Khari, they were entitled to all the Khari water as augmented by the works constructed by the Government at the source of the rivers. On the other hand, Government contend that the water which they have added to the Khari by artificial means can be separated from the natural supply of water and diverted for Government purposes, if Government so decided before it reaches the plaintiff's village.
12. If this contention is correct the difficulty remains to ascertain, first, the extent to which the Khari water has been augmented by the artificial means, and, secondly, whether any water in, excess of the augmentation has been diverted. (Here this Lordship dealt with statistics as to water received and held that that although 6,317 cusecs were received in 1912 from the Bokh and; 695 from the Hathmati tail, 15,391 cusecs were diverted for the Khari Cut and proceeded further.) Moreover I am not satisfied that the defendant is entitled to consider that the whole of the water discharged by the Bokh into the Khari is augmentation due to the construction of works by Government and the introduction of water from the Hathmati canal into the Bokh reservoir. There musfr have been some flow in the Bokh through its course of fifteen or sixteen miles before the dam was built, and really the defendant should have shown how much water was put into the reservoir from the Hathmati canal.
13. In order to satisfy ourselves whether the Judge was right in holding that the area under irrigation had increased and that there had been no diminution in the supply of water before suit owing to Government action, we called for a statement showing the area cultivated in the plaintiff's village with the area under rice since 1882. The statement is not so complete as it might have been, but it is-clear that the area under rice, though it may have increased after the famine years 1899 to 1905 had passed, was not restored to the extent which existed before the famine, and as pointed out above it is by no means certain that, in the year before the suit, the plaintiffs received all the water they were entitled to.
14. The question then remains whether the defendant is entitled to divert the water of the Khari to the extant of its augmentation by artificial means. Reliance has been placed by the defendant on the decision in Fischer v. Secretary of State  32 Mad. 141 where it was held that the Government, has power, by the customary law in India, to regulate in the public interests,, in connexion with the collection, retention and distribution of waters of rivers and streams flowing in natural channels, and of waters introduced into such rivers by means of works constructed at the public expense, and in the public interests, for purposes of irrigation, provided they do not inflict sensible injury on other riparian owners and diminish the supply they have hitherto utilized. In regard to works of irrigation constructed by Government in connexion with a natural stream a riparian owner has no higher right than that of not being damaged by any diminution in the supply of water he has been accustomed to receive. This paramount right of Government is recognized by the Legislature in Section 7(2)(a) of the Indian Easements Act.
15. An upper riparian owner is entitled to divert water provided the amount diverted does not exceed the amount which he has himself by artificial means put into the stream. The decision was referred to by their Lordships of the Privy Council in Bala Surya Prasad Row v. Secretary of State for India  40 Mad. 886 in the following passage in the judgment at p. 895:
The law of the Madras Presidency as to rivers aid streams certainly differs in some respects from English law
and there is no reason for saying that tie customary law of India referred to in Robert Fischer's case is confined to the Presidency of Madras.
16. I am satisfied that the plaintiffs have proved that they have the right of riparian owners to the usufructuary use of the water of the Khari river as it flows past heir land, and that the defendant has no right to divert the water of the Khari river above the plaintiffs' village for non-riparian purposes, to any greater extent than that of the water put into the Khari by artificial means. I think that the plaintiffs are entitled to a declaration to that effect and that the declaration granted by the lower Court was too restated, since the plaintiffs are entitled to so much of the water of the Bokh as flows therein from natural sources. I see no reason why an injunction should not be granted to that extent as the defendant has clearly claimed to be entitled to divert the whole of the Bokh water which enters the Khari.
17. It seems uufortunate that the attitude of Government and the officials in the various departments, Revenue, Public Works Department, and Irrigation, has lot been consistent. I think the right attitude to be maintained in regulating the diversion of water at the Khari Cut canal is displayed in the letter of the* Executive Engineer of May 17, 1907, and that it would be advisable in times of scarcity to allow to the Khari river as much water as possible, even if some of it be augmented water, rather than risk damage being suffered by the crops of the Kalambandhi villages which the villagers might be able to prove was due to an infringement of their light by Government. How much water can rightfully be diverted into the Khari Cut canal must always be difficult to be calculated with any degree of accuracy.
18. I am not prepared to agree with the lower Court that the plaintiffs have suffered no diminution in the supply which they used to receive before the construction of the Khari Cut canal. There certainly are indications in the correspondence that some officials of Government thought it of more importance that the Chandola system should be made to appear in the accounts a remunerative one, whether the Kalambandhii villages suffered or not, and as it has been; proved that owing to the river having; been allowed to get silted up, and owing to the growth of Gha Bajaria the flow of water is more impeded than it formerly; was, so that the same proportion of the water flowing below the Raipur weir does not reach Pinglaj, it is all the more important for Government to see, either that these defects are removed, or that the flow of sufficient water at Pinglaj is not endangered by the diversion of water at the Khari Cut.
19. I would very the decree by declaring; that the plaintiffs have the right of riparian owners to the water of the Khari river accruing from natural sources and that the defendant should be enjoined from diverting to the Khari Cut Canal any of the Khari river water which has not been put into the river by artificial means, so long as water is required for the Kalambandhi villages. The cross-objections should be dismissed with costs and I think the appellants are entitled to the costs of the appeal.
20. I concur.