H.R. Khanna, J.
1. This regular second appeal filed by Mahu Singh and other plaintiffs is directed against the Judge, Simla, reversing on appeal the decision of the trial Court whereby the suit of the plaintiff-appellants against Chaunku Ram and others defendant-respondents had been decreed. As a result of the decision in appeal, the plaintiff's suit stands dismissed.
2. The plaintiffs are the residents of village Garog, while the defendants are the residents of village Falahi, Garog is at a lower level thatn village Falahi. There is a spring of water known as Chashma Falahi in the area of village Falahi and water from it, after flowing through the land in village Falahi, goes down-stream to village Garog. The plaintiffs case is that they have been using the water of the stream for irrigating their land situate in Khasra Nos. 10 and 11 since the days of their ancestors. It is stated that the defendants constructed a small cement tank (tanki) at the spring and took a pipe from this tank to the village abadi. The defendants are thus alleged to have diminished the quantity of water that flowed into the natural stream and thereby obstructed the irrigation facility of the plaintiffs. As a result of that act of the defendants, the vegetable crops of the plaintiffs are stated to have got damages. The plaintiffs accordingly prayed for a permanent injunction restraining the defendants from causing obstruction in the flow of the stream by diminishing its water. Prayer was also made for the demolition of the water tank and pipe constructed by the defendants.
3. The suit was resisted by the defendants and they averred that the plaintiffs had no right to irrigate their fields from the stream. Plea was also taken that the construction of the tank and the pipe had been undertaken with the assistance of Block Development authorities and that the aforesaid construction had not resulted in any diminution of the water supply which flowed down the stream.
4. The trial Court held that the construction of the tank and pipe had resulted in obstruction to the flow of water and the diminution of its quantity. The plaintiffs were further held to have a right to irrigate their fields from the stream since the time of their ancestors. As such the injunction prayed for by the plaintiffs was granted. On appeal the learned District Judge held that the water of the stream was used by the plaintiffs for irrigating their fields. It was further held that the construction of the tank and the pipe had not resulted in diminishing the quantity of water flowing down stream. As the irrigation of the plaintiff's land was held not to have been affected, the learned District Jduge came to the conclusion that the relief of injunction prayed for could not be granted. The learned District Judge also held that the residents of village Falahi could construct the tank and take water for drinking purposes. The Falahi stream was held to be the only source of drinking water for the people of village Falahi. The District Judge accordingly took the view that it would be wrong exercise of discretion to grant injunction and to deprive the residents of village Falahi of their source of drinking water. In the result, the appeal was accepted and the suit of the plaintiffs dismissed.
5. I have heard Mr. Chhabil Dass on behalf of the appellants and Mr. Sharma on behalf of the respondents and am of the view that no case has been made for interference with the judgment and decree of the lower Appellate Court, Shri Jasmer Singh [P.W. 6] was appointed a Local commissioner in this case and his report shows that the pipe constructed by the plaintiffs is 1' wide and the construction of the tank and pipe has not resulted in any decrease in the flow of water down stream. The report further shows that the residents of village Falahi had a right of getting drinking water from Chashma Falahi. The fact that the water from Chashma Falahi is the only source of drinking water for the residents of village Falahi and their cattle, is also proved by the statement of Nathu Ram (D.W. 4). Even Jawahar Lal, plaintiff, as P.W. 5 admits that the residents of village Falahi have no other source of water. This fact is also borne out by the statment of D.W. 5 Lajja Ram, overseer, according to whom the spring 'Chashma Falahi' is the main source of drinking water for the residents of Falahi. His evidence also shows that the construction made by the defendants has resulted in iincreased depth of water in the spring. On the basis of the material on record and the findings of fact arrived at by the lower Appellate Court it can be held to have been established:
1. Water from Chashma Falashi is practically the only source of drinking water for the residents of village Falahi and their cattle.
2. The tank and the pipe in question have been constructed by the residents of village Falahi for the domestic use of water, namely, for drinking.
3. The construction of the tank and water pipe has not resulted in diminution of the supply of water which flow down stream.
On the above facts the lower Appellate Court, in my view, rightly declined to grant the injunction prayed for by the plaintiffs. The question of use of water by riparian owner was dealt with by the House of Lords in the case of McCartney v. Londonderry and Lough Swilly Rly, Co. Ltd. 1904 Ac 301, Lord Macnaghten observed
'There are, as it seems to me, three ways in which a person whose lands are intersected or bounded by a running stream may use the water to which the situation in his property gives him access.he may use it for ordinary or primary purposes, for domestic purposes, and the wants of his cattle. He may use it also for some other purposes - sometimes called extraordinary or secondary purposes - provided those purposes are connected with or incident of his land, and provided that certain conditions are complied with. Then he may possibly take advantage of his position to use the water for purposes foreign to or unconnected with his ripairan tenement. His rights in the first two cases are not quite the same. In the third case he has no right at all.'
It was further observed:-
'In the ordinary or primary use of flowing water a person dwelling on the banks of a stream is under no restriction. In the exercise of his ordinary rights he may exhaust the water altogether. No lower proprietor can complain of that. In the exercise of rights extraordinary but permissible, the limit of which has never been accurately defined and probably is incapable of accurate definition, a riparian owner is under considerable restrictions. The use must be reasonable. The purposes for which the water is taken must be connected with his tenement, and he is bound to restore the water which he takes and uses for those purposes substantially undiminished in volume and unaltered in character.'
The above observations were followed by their Lordships of the Privy Council in the case of Secy. Of State v. Sannidhiraju Subbarayudu . In the present case the construction of the tank and pipe was for a domestic purpose and as such was for a purpose of the first category enumerated by Lord Machaghten. For such a purpose, which relates to the ordinary and primary use of flowing water, there is, in the words of Lord Macnaghten, no restriction. Mr. Chhabil Dass on behalf of the appellants contends that if the residents of village Falahi want to take water from Chashma Falahi or the stream flowing from it, they can only carry it in pitchers or other vessels; they have no right to construct tank and pipe near the spring for the flow of water to the village abadi. This contention, in my opinion, cannot be accepted because the construction in question is intended to facilitate the use of water for its primary purpose, namely, drinking and not for any extraordinary or other purpose. Had the construction been made for the use of water for a purpose other than domestic, there might possiblyhave been some force in the contention advanced on behalf of the appellants but as in the present case of construction is intended only to facilitate the consumption of water for domestic purposes, the defendants cannot be compelled to demolish the construction. The only effect of the construction of the tank and pipe is that the residents of village Falahi have been spared the trouble of crrying pitchers and other vessels to the spring for bringing water to village abadi.
6. Reference on behalf of the appellants has been made to the case of Debi Pershad singh v. Joynath Singh (1897) 24 Cal 865 . This was a case of riparian owners. The upper proprietor claimed the right to dam up a stream on his own estate, and to impound so much of its water as he might find convenient, for irrigation, leaving only the surplus, if any, for the use of the proprietors below. It was held that he had no such right, in the absence of a right obtained by him in virtue of contract with the lower proprietors or as a consequence of prescriptive use. The facts of the case reveal that the dam was sought to be constructed not for domestic use of water but for irrigation. As such the appellant cannot derive much help from the above authority. Reference on behalf of the appellants has also been made to the cases of Bhagaban Panda v. Bairagi Naik : AIR1964Ori165 , and Abbasali v. Shaikh Munir : AIR1953Bom305 . In the case of Bhagaban Panda the riparian owner wanted to use water for the purpose unconnected with his riparian tenement and an injunction was issued against him. In the case of Abbasali Hasanali Peerjade : AIR1953Bom305 , the plaintiffs were seeking to build a 'bandhara' and store water of the stream so that the water might be made available even to such of them who were not riparian owners for their agricultural operations. It was held that the plaintiffs were not entitled to store or collect water for the above-mentioned purposes by the construction of a dam. In none of these two cases the impugned construction was for facilitating use of water for drinking purposes. As such, the above authorities are clearly distinguishable. I may also observe that the dictum in Abbasali Hasanali Peerjade's case : AIR1953Bom305 , which is a Single Bench decision, was dissented from by a Division Bench of Bombay High Court in The State of Bombay v. Laxman Sakharam Air 1960 Bom 490.
7. The report of Shri Jasmer Singh, Tehsildar, shows that the source of irrigation of the land of the plaintiffs is Katool, which means that water flows into that land only for 3 or 4 months in a year. It would, thereforee, follow that plaintiffs have only a seasonal right to take water from the stream in question for irrigating their land. As against that, the defendants depend upon the water of Chashma Falahi throughout the year for drinking purposes. As the construction of the tank and pipe in question is intended to facilitate the use of water of Chashma Falahi for drinking purposes of the defendants and has not resulted in disminishing the supply of water for the land of the plaintiffs. I see no cogent ground to interfere with the order of the Court below when ti came to the conclusion that no injunction should be issued against the defendants compelling them to demolish the tank and pipe in question. The appeal consequently fails and is dismissed, but, in the circumstances, I leave the parties to bear their costs.
8. Appeal dismissed.