1. This is a Letters Patent Appeal against a decision of Mr. Justice Brett dated the 1st May, 1907.
2. The suit is one brought by the plaintiff to establish his right to the passage of water from a water-course or pyne.
3. The first Court gave the plaintiff a decree.
4. On appeal to the Subordinate Judge that officer found that the plaintiff had failed to establish the existence of the water passage from M.N. to the Ahar A.B.C.D. at the time when he and the defendants' father were joint proprietors of Kunda and Hasowli. The plaintiff declared that he had a right to the flow of water through the channel which leads to his reservoir and he also claimed that he had a right to erect a dam at M.N. and to obstruct the flow of water at another place marked E.F. so that the water should not flow in the direction of the defendants' mouzah through the pyne.
5. Now, the Subordinate Judge says that the plaintiff has no such right; and he has dismissed the suit.
6. The plaintiff then preferred a second appeal to this Court: Mr. Justice Brett who heard that appeal has evidently come to the conclusion that the judgment of the Subordinate Judge is wrong on facts. He finds fault with that judgment upon three points, namely. first, that the Subordinate Judge has erred in the importance which he has attached to the two maps of 1868 and 1900; secondly; that he has misunderstood the result of the Munsif's local investigation, as given in the Munsif's notes, and by reason of his so misunderstanding those notes, has entirely misdirected his mind in dealing with the facts of the case; and, thirdly, that he has failed to take into consideration at all the evidence of the witnesses who have been examined.
7. Now, it appears to us that these faults which the learned Judge of this Court has found with the judgment of the Subordinate Judge raise no question of law. They raise only a question as to the weight which the Subordinate Judge has given to certain portions of the evidence adduced before him. Mr. Justice Brett was, we think, not justified in interfering, with the findings of the Subordinate Judge on the grounds above-mentioned. To allude to them a little more in detail, they are as follows. In the first place, Mr. Justice Brett speaks of the importance which the Subordinate Judge has attached to the two maps of 1886 and 1900. Now, it is not said that these maps were inadmissible in evidenced They are relevant to the subject of the dispute and the Subordinate Judge had a right to attach to them whatever weight he thought fit.
8. Then, the same observations may apply to the result of the Munsif's local investigation, as given in the Munsif's notes. On one point the Subordinate Judge has agreed with the Munsif and on another point he has disagreed with him. But the fact that he has disagreed with the Munsif on one point is no more a point of law than the fact that he agreed with him on another point.
9. Lastly, as to the allegation that the Subordinate Judge did not take into consideration at all the evidence of the witnesses who were examined, there seems to us to be no justification for any such inference. As a matter of fact, the Subordinate Judge has alluded to the evidence of one witness in his judgment. It is true that he does not expressly allude to the evidence of other witnesses; but this is probably because he considered their evidence to be worthless. It is a well-known fact that when two zemindars quarrel they produce partisan witnesses, whose evidence is usually of very little weight. In a dispute about a water- course the question has to be decided mostly on documentary evidence and on a consideration of circumstances of the locality, the different levels of the land, and the direction in which the water flows. In such cases the testimony of partisan witnesses is of very little assistance.
10. We see no reason, therefore, to suppose that there was any point of law raised in second appeal which justified the Judge of this Court in interfering with the finding of the Subordinate Judge; and we accordingly set aside the decision of Mr. Justice Brett and restore that of the Subordinate Judge.
11. It is to be understood that, as found by the Subordinate Judge, the plaintiff's natural right to the flow of water from the pyne is not to be disturbed. The Subordinate Judge on this point has said: 'The right to overflood' the defendants' lands with water flowing out from A.B.C.D., is a right which has not been claimed in the suit.
This is such a right' which no Court of equity would allow. The plaintiff might place a small bund in the bed of his sata upon his own land to prevent his water to escape, but he has certainly no legal right to prevent the defendants from using that water in any way they liked after it entered into his lands.
12. We must mention that a preliminary objection was raised by the respondent to the hearing of this appeal, namely, that the judgment of Mr. Justice Brett is not a judgment within the meaning of Section 15 of the Charter Act. But we consider that it is a judgment within the meaning of that section, because it deals with the whole case, and, setting aside the judgment and decree of the Subordinate Judge, it refers the case to him for re-hearing.
13. The appeal is decreed with costs.
14. [The decision on the second point in the above appeal, viz., whether the judgment of the learned Judge remanding the whole case is a judgment within the meaning of Section 15 of Charter Act, has been followed in Letters Patent Appeal.No. 40 of 1907 decided on the 11th August 1908 by Rampini, A.C.J. and Doss, J.--Ed.]