Ameer Ali and Pratt, JJ.
1. This second appeal arises out of a suit brought by the plaintiffs for a declaration of their right to erect and maintain a bund at a place described in the schedule attached to the plaint as lea, and for a permanent injunction restraining the defendants, other than the pro forma defendants, from removing it in future.
2. The circumstances which gave rise to the suit are as follow:
There appears to be a natural streamlet, which issuing from some villages called Fulnagar, Beldanga, &c.;, in the District of Burdwan, flows ill a southerly direction past the villages of Mitrapur and Bijoypur, where the plaintiffs have .their holdings and Arachia where the defendants reside and have their cultivation, and then takes an easterly course through the village named Palsana, where it joins the river Khari. The plaintiffs alleged that during the rainy season when the streamlet is filled with water the inhabitants of the riparian villages have, from time immemorial, had the right of raising bund, within the respective limits, of conserving water sufficient for irrigating their lands for agricultural purposes and letting out the surplus water for the use of the holders of servient tenements, and that they, as the owners of property lying on the bank of this streamlet, had, in accordance with the above prescriptive and customary right, constructed a dam at the place ka which was demolished by the principal defendants in the year 1302. They alleged further that this dam was built in this manner every year and that the practice was observed as a matter of right, publicly and uninterruptedly for upwards of twenty years for the purpose aforesaid, and that the defendants have and had no right to interfere with the construction of the bunds in question. They stated further that the people of the defendants' village had a similar right to build a dam or bund within their own limits for' the conservation of water and that they were not entitled to interfere with the exercise of the right on the part of the plaintiffs; and as the right which they claimed was one shared in by all the riparian holders of Mitrapur and Bijoypur, the plaintiffs asked the Court to grant them leave under Section 30 of the Civil Procedure Code. And they prayed for a declaration that they and their co-villagers holding the lands described in the plaint as kha and gah have a prescriptive right based on immemorial practice to conserve water by constructing a bund at the place mentioned in schedule (ka) for the purpose of irrigating their lands (kha) and (gah). They also asked that the defendants might be restrained from interfering with any bund the plaintiffs might construct within the confines of Mitrapur and Bijoypur.
3. The defendants in their written statement alleged, inter alia, that the place where the plaintiffs claim to erect the bund was not within the confines of Mitrapur and Bijoypur as alleged by them; secondly, that neither the plaintiffs, nor the pro forma defendants, nor the ryots of Mitrapur and Bijoypur, ever constructed a dam at that place, and that they had no such right, nor had they held possession of the place, nor been in the practice of building dams for the last twelve years. The defendants also denied that the plaintiffs irrigated their land with the water of the streamlet, and they went on to allege that from time immemorial the defendants had 'as usual' a bund within the confines of their own village, and that in the event of any scarcity of water, the people of that village cause their lauds to be irrigated by taking water from the stream.
4. As the Courts below point out, there is no suggestion in the written statement that the right claimed or the right which has been found to have been exercised by the plaintiffs interfered in any way with the enjoyment by the defendants of the water of this streamlet. It will be noticed also that in the plaint the plaintiffs based their right to conserve water for the irrigation of their lands by erecting a bund, both on prescriptive and customary right. The right on which this action was therefore brought was of a mixed character, neither purely prescriptive nor purely customary. We mention this in connection with an argument put forward on behalf of the appellants in this Court, to which we shall advert afterwards.
5. The First Court in an extremely careful and well-considered judgment, in which it discussed the law relating to rights of this nature in some detail, found in the first place that the place where the plaintiffs claimed to have had their bund, and where they claimed to construct the same, was not within Arachia. In fact, although the defendants had denied in their written statement that it was within the confines of Mitrapur and Bijoypur, it was conceded in the course of the trial that ka was within the villages within which the plaintiffs have their holdings. But the contention was that the portion of the streamlet, in which the plaintiffs wanted to erect their bund, belonged to the talukdar of Arachia. The Munsif found as a fact upon the evidence in the case that the talukdar of Arachia did not possess the jalkar right in the streamlet alongside of the villages of Mitrapur and Bijoypur, nor was he in possession thereof. He found further that the portion of the kandar or streamlet which passes through Bijoypur and Mitrapur belonged either to the talukdars of those villages, or, as the thak map shows, exclusively to the talukdar of the latter village. This finding has been practically affirmed by the Subordinate Judge and there is no dispute about it in this Court. Upon that finding, as the Munsif very properly points out, the plaintiffs have clearly a right to use the water of the streamlet for ordinary purposes. Some English cases were referred to, which go to show that the ordinary purposes in England are limited to personal uses and so forth. In this country, moreover, the ordinary use to which a riparian-holder is entitled is not so limited as in England, but apart from that, the Munsif found as a fact that the plaintiffs had made out the special right which they claimed, viz., the right of damming up the streamlet for irrigating their lands, and that they had exercised that right for more than twenty years by erecting the bund, and that the use which they had made was consistent with the custom prevailing in that part of the country. He referred to the fact that there were several bunds of that character, then built by the inhabitants of the different villages for the purpose of conserving the water within the confines of their respective properties. He found further that the defendants had not shown that such conservation by the erection of periodical bunds had in any way injured them or interfered with their rights as riparian holders, and he was of opinion that the right which the plaintiffs claimed appertained to all the lands which abutted on the stream including the lands in schedule kha and gah referred to in the plaint, and he went on to say: 'Considering all the circumstances I am of opinion that the plaintiffs, as well as the other inhabitants of Bijoypur, are entitled to maintain a bund in the disputed place and that it does not signify whether the right entitling them to do so be of the nature of an easement, natural or customary.' He held further that, as the plaintiffs claimed a right by prescription, they were entitled to maintain the action for themselves, but if it were a right in which other persons were entitled to sue, leave under Section 30 had been granted; that in fact advertisements had been issued in one of the local papers and that the provisions of that section were complied with for the purpose of entitling the plaintiffs to maintain the action on behalf of themselves and the others concerned. He accordingly made a decree declaring the plaintiffs' right to erect a bund in the disputed place in terms of the prayer contained in the plaint and for possession of the disputed land for the aforesaid purpose, and also declaring that the principal defendants have no right to remove the bund and enjoining them to refrain from doing so.
6. On appeal to the Subordinate Judge, various questions were raised, but apparently, so far as we can see from the judgment of the Lower Appellate Court, no question was raised regarding the right to the portion of the streamlet running through Mitrapur and Bijoypur, nor as regards the permission granted to the plaintiffs under Section 30 of the Civil Procedure Code. The Lower Appellate Court has held that the exercise of the right by the plaintiffs as alleged by them in their plaint for more than twenty years had been satisfactorily established. He also found as a fact that, although ordinarily the holder of a dominant tenement has no right to interrupt the regular flow of a stream so as to interfere with the use of the water by other proprietors or to inflict upon them any injury, it was clear that such a right may be acquired by a grant or uninterrupted enjoyment for twenty years, which is evidence of the grant. He in fact incorporates in his judgment the dictum of Chancellor Kent in his Commentaries, and agreeing with the Munsif that the user by the plaintiffs was not by any means of an extraordinary character, but under the circumstances of this case was a right which they had established both upon prescription as well as by custom, he affirmed the decree of the Court of First Instance.
7. The Subordinate Judge's judgment naturally is not so full as that of the Munsif with whom he agreed, and that probably has furnished the reason for this second appeal.
8. It has been contended on behalf of the appellants before us first, that the plaintiffs have not proved their prescriptive right; second, that the leave which was granted under Section 30 was not sufficient, and that therefore the plaintiffs were not entitled to maintain the action on behalf of others, and that a declaration based upon custom could not be made, because it was not proved in the case that others had enjoyed the right which the plaintiffs claimed. It was also contended that the terms of the injunction were indefinite, first, because the size of the bund had not been indicated; second, nothing was said as to the period during which the bund should be maintained; and third, because the rights of the defendants were not protected.
9. As regards the proof of the right by prescription claimed by the plaintiffs, the Subordinate Judge no doubt says 'that the witnesses for the plaintiffs do not depose having seen the plaintiffs irrigate their lands with the water of this stream taken from the place of the disputed dam for twenty years;' but he goes on to say that they prove the existence of the dam for more than twenty years, and this is sufficient to give the plaintiffs the right to maintain the dam. As we have already mentioned, the plaintiff's claim was based upon a right founded on immemorial user as well as customary right, that is, the right which appertained to the villages abutting on the stream and through which the kandar flows. In considering what the Munsif had found, it seems to us that the Subordinate Judge, who was affirming the judgment of the First Court, was of opinion that upon the evidence it had been clearly shown by the plaintiffs that the user which they claimed had been sufficiently and clearly established, although some of the witnesses may not have seen the plaintiffs actually irrigating their lands with the water of the stream. Heading the two judgments together, we feel no doubt, that what was intended to be found by the Subordinate Judge was exactly what had been found by the First Court.
10. As regards leave under Section 30 of the Civil Procedure Code, we are of opinion that, as it was given in fact upon the plaintiffs application, and notices were issued in compliance with the plaintiffs' prayer, the mere fact that the order was not recorded in the order sheet does not vitiate the proceedings, and in this view we are supported by the decision of Chief Justice Petheram and Mr. Justice Ghose, in the case of Dhunput Singh v. Paresh Nath Singh (1893) I. L. R. 21 Calc. 180., where the learned Chief Justice held that the grant of permission under Section 30 may be inferred from the circumstances of the case. Here the Munsif finds that in the local paper, the Burdwan Sanjibani, the fact that a suit had been instituted by the plaintiffs of the character in question was duly notified, and we are of opinion that the requirements of Section 30 were therefore sufficiently complied with.
11. Then arises the question whether the right claimed on behalf of the other inhabitants of the village has been sufficiently established. We are of opinion that upon the findings of the Munsif, which have been substantially affirmed by the Subordinate Judge, there can be no doubt regarding the fact that the riparian holders of the villages of Mitrapur and Bijoypur were entitled' with the plaintiffs, the present respondents, to the right which the plaintiffs in their plaint claimed, namely the right to conserve water by building up a dam in the streamlet in question during the rainy season. The rights of those persons are coextensive with those of the plaintiffs, and regard being had to the fact that the plaintiffs have established, in the opinion of both the Courts below, that they had been in the habit of erecting for many years pasta dam across the streamlet in question at the particular place mentioned by them for the conservation of water for agricultural purposes, it may be taken that that right is, as the Munsiff has found it to be, the light of the villagers whose lands abut on the stream. The case of the Duke of Bedford v. Ellis (1901) A. C. 1. and the other cases cited by the learned pleader for the appellants therefore do not in our opinion touch the present case.
12. The question remains as to the indefiniteness of the terms of the injunction. As we have mentioned, the objections are of a three-fold character. As regards the periodicity of the construction of the bund, it is unnecessary for us to say anything, for it will be found that in the plaint itself it is mentioned that the bund is thrown up only during the rainy season.
13. As regards the right of the appellants, it seems to us that the way in which the case has been dealt with, and upon the facts found by the Courts below, the defendants are sufficiently protected. The plaintiffs have established their right to take the water for irrigating their lands by building a bund in accordance with the custom and user which has prevailed from time immemorial, and that right is co-extensive with the right of the other tenement holders--a right which is exercised by the defendants themselves as against others. We do not see how any question regarding the protection of the rights of the defendants can arise in such a case.
14. It was urged, on the authority of the case of Debi Pershad Singh v. Joynath Singh (1897) I. L. R. 24 Calc. 865 : L. R. 24 I. A. 60., that an injunction of such an indefinite nature ought not to be granted by the Courts in the exercise of their discretion. We may observe that the case referred to was of a special character. There the plaintiffs claimed the unrestricted right of constructing a dam and of taking water without any proof that they had ever done so before, or that they had enjoyed the right by prescription or custom. The Court of First Instance and the Lower Appellate Court had made a decree in their favour upon equitable considerations. The High Court holding that the plaintiffs claimed an unrestricted right of stopping the flow of the stream for the purpose of utilising its water to such an extent as they might think fit at any time, even if the effect of the obstruction was wholly to deprive the defendants of the water, dismissed the plaintiffs' suit, and naturally so because they had not either proved custom or the right of user. Their Lordships of the Privy Council held as follows: 'The right of a riparian proprietor to divert and use water for the purpose of irrigation is certainly not understated in the plaint. The right claimed by the appellants in the first conclusion is not less broadly asserted in the body of the plaint, and is neither more nor less than a right on the part of an upper proprietor to dam back a river running through his land and to impound as much of its water as he may find convenient for the purposes of irrigation, leaving only the surplus, if any, for the use of proprietors below.' Then they add what is most important: 'In the absence of a right acquired by contract with the lower heritors or by prescriptive use, the law concedes no such right.' The suit was dismissed because the plaintiff's bad failed to make out any case for the relief they claimed. In this case, both the Courts below have found as a fact that the plaintiffs have established that they have acquired by prescriptive use the right they claim; and we are of opinion that in second appeal, it is not open to the appellants to question the correctness of that finding.
15. The Lower Courts have declared that the plaintiffs are entitled to construct the bund at the place mentioned. That must be consistent with what they have been doing for the last twenty years and the custom prevailing in the locality. We, therefore, see no reason for complicating matters by endeavouring to define more particularly the size of the bund.
16. Having regard to all the facts and circumstances of case, we are of opinion that this appeal ought to be dismissed and we accordingly dismiss it with costs.