G.K. Misra, J.
1. The villagers of Jaypur Sashan, Shyamsundarpur, Sayadnagar, Khakarwal, Panisimulia, Govindpur and some other villages have brought the suit under Order 1, Rule 8 C.P.C. against the villagers of Srirampur, Mirjapur, Krushnadaspur, Chakradhanpur and some other villages under Order 1, Rule 8 C.P.C. Plaintiffs asked for a declaration that they are entitled to use the entire volume of water of River Sriram for the purpose of irrigating their lands and for a permanent injunction restraining the defendants from diverting the course of the river into a new channel excavated by the defendants. The map (Ex. 7) has been made a part of the decree. The facts stated here are with reference to Ex. 7. Defendants had brought title suit No. 340 of 1940 in the Court of the Munsif, Balasore, for a declaration that the present plaintiffs had no right to put dams in the bed of river Sriram at points A, B and C. The defendants lost the suit, and true appeal No. 306 of 1941 filed by them was dismissed by the Subordinate Judge, Cuttack. As a result of the decision in the previous litigation inter partes, flow of water beyond the point A in river Sriram was completely checked and the entire water was diverted to river Jaypur which abuts the lands of the plaintiffs. The plaintiffs aver that the defendants have constructed a channel shown red in the map which starts at a point higher than A, and runs through plot Nos. 273, 274, 275, 299 and 280 and connects river Sriram in plot No. 280 at a point below C. by construction of such a channel, the water of river Sriram is diverted from an upper limit and is made to fall at a lower limit below point C and thereby the previous decree is nullified. The volume of water at point A is diminished When the channel was constructed the plaintiffs had the apprehension that the diversion of water through it would result in substantial diminution in the supply of water in river Sriram at point A which would affect the irrigation, rights acquired by the plaintiffs.
2. The defendants contended that they were upper riparian owners. They purchased a length of land ten links wide from out of c.s. plot Nos. 273, 274, 275, 299 and 280. The disputed canal was not dug by them in1955. It is a natural water channel which exists for more than 20 years before the suit and only at times the neighbouring, tenants dig out silt deposition on its bed. The water from river Sriram passes into the channel andirrigates their lands. This right of the defendants, as riparian owners is not affected in any manner by the previous decree. The plaintiffs' prayers for a declaration and for injunction are not maintainable in law.
3. The learned trial Court recorded We following findings:
(i) River Jaypur gets all the water of river Sriram at point A and the water does not flow beyond point A in river Sriram.
(ii) The disputed canal marked red in Ex. 7 is not a natural channel but is an artificial one excavated by the defendants for the first time in 1955.
(iii) If the channel is allowed to continue, the entire volume of water of river Sriram, as it used to pass to river Jaypur at point A would diminish and the plaintiffs are likely to face serious disaster at the time of drought.
(iv) Plaintiffs have acquired right of easement in respect of the entire volume of water flowing into river Sriram at point A which passed to river Jaypur.
(v) The natural rights of the Upper riparian owners an either bank of river Sriram belonging to the defendant's villagers would remain in suspension until the plaintiffs abandon their prescriptive rights.
On the aforesaid findings, the learned trial court decreed the plaintiffs' suit. It declared that the plaintiffs have got right of easement of user of the entire volume of water flowing into river Sriram which is diverted to river Jaypur at point A for the purpose of irrigating their lands. It also passed an order of injunction directing the defendants' to close the mouth of the channel marked in red in Ex. 7 at the point at which it starts from the river.
4. Before the learned Subordinate Judge all the findings were not assailed. Only 2 contentions were urged. The finding that the channel was an artificial one was challenged. The learned Sub-Judge agreed with the Mun-sif that the channel was an artificial one which was dug for the first time in 1955. The further contention raised was that even if the plaintiffs had acquired prescriptive rights of easement to divert the entire volume of water from river Sriram into the river Jaypur, it could not affect the rights of the defendants to take water from river Sriram for their riparian use.
He decreed the plaintiffs' suit for declaration or their right of easement to the use of the entire volume of water in the river Sriram subject to the natural rights at the defendants to have the disputed canal in order to snake a reasonable use of the water of river Sriram without diminishing the volume of water materially. He issued also injunction against the defendants restraining them from making any further improvement by digging the disputed canal deeper or widening it and directing them not to take out the water of river Sriram in such quantities as will interfere with the rights of easement declared to favour of the plaintiffs.
5. Plaintiffs have filed the second appeal and the defendants have filed a cross-objection under Order 41, Rule 22 C.P.C. The only point raised in the cross-objection, is that the concurrent finding of both the Courts that the disputed channel is an artificial and not a natural one is contrary to law. The concurrent finding is a pure question of fact and cannot be disturbed in second appeal, me cross-objection is accordingly dismissed.
6. The following principles governing riparian rights are well settled.
(i) The owners of lands on the banks of the stream have the right of access to the stream by law of nature. The existence of the right is thus conditioned by the tact of contact of the lands with the flow of the stream. Even if the portion on the banks be a narrow strip, the back lands enjoy, riparian rights if both are under thesame ownership. A riparian tenement in addition to the contact with the stream also connotes a reasonable proximity to the river bank. The exact proximity cannot be mathematically laid down. Whether it is a riparian tenement or not does not depend upon any arbitrary rule but must be determined in each case according to its facts and circumstances.
(ii) This right is a natural right and is not an easement in the strict sense of the word and is not capable of being lost by non-user : Secy. of State v. Sannidhiraju Subbarayudu, AIR 1932 PC 46.
(iii) Each riparian owner has a right to the water; but this right is confined only to the flow of the water and its enjoyment subject to similar rights of other owners on the bank of each side to the reasonable enjoyment of it. The riparian owner may use the water-
(a) for ordinary or primary purposes;
(b) For extra-ordinary or secondary purpose; and
(c) for purposes unconnected with the riparian tenement.
The first two purposes are legitimate but not the third McCartney v. Londonderry and Lough Swilly Ry. Co. Ltd., 1904 App Cas 301.
(iv) When only a part of the stream is taken by an upper riparian owner for the purpose of irrigation, the only limitation is that the amount taken shall not be so much as to hurt the right of the inferior owner to have the stream passed on to him practically diminishad, AIR 1932 PC 46.
(v) When an owner uses water for the purpose unconnected with his riparian tenement, an injunction is to be issued though no actual injury is sustained. This is based on the juristic theory that unless the wrong-doer is injuncted, he would acquire a prescriptive right by continuance of the unlawful act for over the statutory period.
(vi) A riparian owner cannot, except as against himself, confer on one who is not a riparian owner any right to use the water of the stream, and any user by a non-riparian proprietor, even under a grant from a riparian owner, is wrongful, if it sensibly affects the flow of the water by the lands of other riparian proprietors : Ormerod v. Todmorden Mill Co., (1883) 11 QBD 155.
7. In the light of the aforesaid principles the issue involved in this case must be determined. Plaintiffs' simple case is that they are entitled to the entire volume of water flowing in river Sriram at point A which passes to river Jaypur. Both the courts have concurrently accepted the plaintiffs' case on this point. The learned subordinate Judge has given a further declaration that this right of the plaintiffs is subject to reasonable use by the defendants as riparian owners higher up the stream. This position is correct in law. Plaintiffs prayer is for closure of the newly constructed artificial channel connecting river Sriram at a point in plot No. 273 to a point in the same river below C in plot No. 280. On the findings of the Court below and on the basis of the judgment in T. S. No. 340 of 1940, the position is very clear that the water does not flow in river Sriram beyond point A by the construction of the dams at points A, B and C. The channel purported to divert the water of the river from an upper limit to itself at a lower limit entirely for non-riparian use and contrary to the decree in T.S. No. 340 of 1940 and to the rights of the plaintiffs to get the accustomed flow of water at point A. Defendants have absolutely no right to do so. As no water flows in river Sriram beyond A, plot Nos. 274, 275, 299 and 280 are non-riparian tenements. Defendants have not established the case that the ownership of the aforesaid plots vests in the persons who are the owners of the newly excavated channel. So those plots are not entitled to any right of irrigation from river Sriram. Blot No. 2/3 alone has contact with river Sriram above the plot A and is a riparian tenement. aS the channel has been dug out for extracting away thewater of river Sriram from an upper limit for non-riparian purpose, the question of taking water through the channel for irrigation plot No. 273 is left open in this case.
8. Mr. Ranjit Mohanty contends that for a quia time action, at least two necessary ingredients must be fulfilled. Those are if no actual damage is proved, there must beproof of imminent danger and there must also be proof that the apprehended damage will, if it comes, be very substantial. He relies on Gangabai v. Purshottam, ILR 32 Bom 146. The principle enunciated in that decision is correct though it was a case relating to ancient rights. Both the Courts have found that no actual damage has beenproved. At the time the suit was filed, the channel had not been fully excavated. That the defendants' action threatening to divert the water of river Sriram to thesame river below C through the newly excavated channelcaused imminent danger is manifest. It was likely to causesubstantial damage, as the purpose was to prevent the flowing of the water at point A to river Jaipur in its accustomed flow. Even assuming there is no proof of imminent danger and substantial damage, plaintiffs' case is bound to succeed as the channel purported to use the water for the purpose unconnected with the riparian tenement. It is fantastic to conceive that each of the defen-dants should in representative capacity possess a riparian tenement. At any rate, no such case has been advanced. They were however rightly made parties as they were joint tort-feasors in excavating the newly dug channel in a high-handed manner in derogation to the rights of tneplaintiffs. Diversion of the water through the newly excavated channel, even in respect of lands on either sideof river Sriram below point C, would amount to user foreign to riparian purposes. In such a case, a decree torinjunction must be granted without proof of damages as already enunciated in proposition (v) supra. I find no forcein Mr. Mohanty's contention.
9. The decree to be passed in favour of the plain-tiffs may be modelled on the decree passed in the caseof Swingdon Water Works and Co. v. Wills and Berks CanalCo., (1876) 7 HL 697 as was done in Venkatadri Appa Raov. Seetharamayya, AIR 1938 Mad 816 which fully appliesto the facts of this case. Plaintiffs are entitled to adeclaration that they have a right to the entire volume of water flowing from river Sriram at point A passed toriver Jaipur. This right is subject to reasonable use, as enunciated above, by the defendants as riparian owners higher up the stream. An injunction is to be issued restraining the defendants from diverting the water of river Sriram through the newly constructed channel as shown red inthe map (Ex. 7). A mandatory injunction is also to be issued directing the defendants to fill up the channel.
10. In the result, the appeal is allowed with coststhroughout and the cross-objection is dismissed withoutcasts, A decree is passed in favour of the plaintiffs on the terms indicated above.