KAVERIKANA ISHWARA BHATT Vs. KERI ISHWARA BHATT
LAWS(KER)-1974-10-20
HIGH COURT OF KERALA
Decided on October 10,1974

Kaverikana Ishwara Bhatt Appellant
VERSUS
Keri Ishwara Bhatt Respondents

JUDGEMENT

G.VISWANATHA IYER,J. - (1.) PLAINTIFF is the appellant.The suit is for a prohibitory injunction restraining defendants 1 and 2 from sinking tanks in their property and also for a mandatory injunction to the 1st defendant to fill up the tanks already sunk by him in his property.One Kumblo Narasimha Nayak owned extensive properties on both sides of a poramboke channel(thodu)comprised in R.S.No.606/1,604/7;587/2 in Enmakaje village,Kasargode Taluk.Ext.C -2 is the plan showing the lie of the various properties on both sides of the above poramboke channel.By Ext.A -1 sale deed dated 23rd July 1940 the said Narasimha Nayak and other members of his family sold properties comprised in Sy.Nos.585/3 and 4,587/1,3,4 and 5 and also the southern portion in Survey No.604/6 to the plaintiff's father Krishna Bhatt.Properties comprised in Survey Nos.587/3,4 and 5 lie immediately south of the above channel and Survey Nos.587/1 and 604/6 lie to the north of it.Properties lying to the east and north of the properties conveyed also belonged to Narasimha Nayak and continued to be in his possession after the said transfer.The thodu flows in a south -western direction.Survey Nos.606/3,606/2,586 retained by Narasimha Nayak lie south and east of the said channel.At the time of transfer the water flowing through the channel was being used for the irrigation purpose by Narasimha Nayak.In the sale deed there are provisions conferring certain right to the plaintiff's father to use the water from this channel.Plaintiff's father is given the right to put up kattas(bunds ),across this thodu and take water as he likes.The vendor was allowed to take water for cultivation of any plot that may thereafter be reclaimed only without dimini­shing the water supply to the properties sold.The vendor is allowed to take water from this thodu for raising vegetables only in Survey No.606/2.1st defendant is a lessee of Survey Nos.606/3 and 2.2nd defendant is interested in Survey No.586.The 1st defendant dug a tank(marked T in the plan)in Survey No.606/2 about 158 feet east of this channel.Similarly,the 2nd defendant also has dug a tank in Survey No.586,140 feet east of the said thodu.These tanks have been dug deep.Tank T has a depth of 110 feet and tank T -1 a little less.Plaintiff alleges that as a result of the sinking of these tanks the quantity of water collecting and flowing through the poramboke channel has diminished to a considerable extent and this has affected the water supply to his fields included in Ext.A -1 sale deed.According to him,the water which would other­wise get collected in the thodu is withdrawn or percolated into these tanks.This is said to be an infringement of his right to water as a riparian owner and also under the terms of Ext.A -1 sale deed.Therefore,in the suit he claimed for a mandatory injunction to fill up these tanks and to restrain the defendants from sinking any further tanks in Survey Nos.606/2 and 586.Defendants 1 and 2 disputed the plaintiff's claim.They urged that they are entitled to sink tanks in their property and that the plaintiff has no right over underground water in their property and even if as a consequence of sinking of these tanks the collection of water and the flow in the poramboke channel got diminished the plaintiff in his capacity either as a riparian owner or on the terms of Ext.A -1 has no cause of action against the defendants.The extent of the right claimed under Ext.A -1 to take water from the poramboke thodu was also disputed by them.The trial court found that on account of the sinking of these tanks there is an appreciable reduction in the supply of water in the thodu and that the plaintiff has a right to restrain the defendants from using these tanks in such a way that they may affect the water supply in the thodu.Therefore,the trial court directed the defendants to fill up the tank T to a level equal to the level of the thodu.They appealed to the Sub Court.That court came to a different conclusion and dismissed the suit.Hence this second appeal.
(2.) THE plaintiff has urged his right in two ways,firstly as a riparian owner and secondly on the terms of Ext.A -1.The plaintiff as a lower riparian owner is entitled to the use of water flowing through Survey Nos.606 and 587/2 which is a natural thodu.It is a natural right.An upper riparian owner is not entitled to interfere with the flow of water through the channel except that the use of water from the thodu for his domestic purposes and irrigation may cause a reduction in such flow.In England abstraction of water for irrigation is not an use for natural purposes.But in India with a hot and arid climate water doubtless is indispensable to the cultivation of the soil and water for irrigation would be a natural want.Some Ameri­can courts have also taken the view that in places with arid climate it is a natural want(See Angell on Water Courses,Seventh Edition,para 121 to 128 ).The same is the restric­tion on the rights of an upper riparian owner over the water flowing through a defined underground channel.But,there is no property right in water flowing in underground undefined channels.An owner of a property is entitled to sink a well or a tank in his property for getting water and if this causes a withdrawal of the underground water from a neighbouring property or prevents the flow or percolation of water from his property to the neighbour's property the neighbour cannot have any cause of action.The law on this point is fairly well settled and I shall briefly refer to the leading decisions on this point. In Action v. Blundell 152 English Reports 1223 Tindal,C.J.stated the law thus at page 1235:" "We think the present case,* * * * is not to be governed by the law which applies to rivers and flowing streams,but that it rather falls within that principle,which gives to the owner of the soil all that lies beneath his surface,that the land immediately below is his property,whether it is solid rock,or porous ground,or venous earth,or part soil,part water;that the person who owns the surface may dig therein,and apply all that is there found to his own purposes at his freewill and pleasure,and that if,in the exercise of such right,he intercepts or drains off the water collected from underground springs in his neighbour's well,this inconvenience to his neighbour falls within the description of damnum absque injuria,which cannot become the ground of an action " ;. This principle was applied in George Chasemore v. Henry Richards 1859(7)House of Lords Cases 349.In this case the appellant Chasemore was the occupier of an ancient mill on the side of a river He and his predecessors had been accustomed for 60 years and up­wards to use and enjoy the flow of water in the river for the purpose of working and using in the mill.The river had always been fed and supplied above the mill by among other sources the rainfall.Large quantities of this water sink into the upper ground to various depths,and then flowed and percolated through the strata towards and to the river in some instances rising to the surface as springs and then flowing as little surface streams into the river;but in other instances finding their whole way underground into the river.The Local Board for the purpose of supplying the town with water and for other sanitary purposes sank a large well to the depth of 74 feet in a piece of land belonging to them.They erected pumps and steam -engines on their ground and pumped water from the well into a reservoir for supply in the town.Pan of the water so pumped and taken by them from the well was water then flowing and finding its way underground through the strata towards the river and if not intercepted by the operation of the well and pumping,would have found its way into the river above the appellant's mill and would have been serviceable for the working of the mill;but by the operation of the well and pumping it was drawn away into the well and taken by the Local Board.In an action by the appellant against the Board,after referring to the nature of the right of a riparian owner to the water flowing in a natural stream as an incident of the ownership of the property through or along which it passes,that principle was held to be inapplicable to percolating underground water and the observations of Tindal,C.J.referred to above was approved.These cases were again considered by Lord Hatherley,L.C.in Grand junction Canal Company v. Shugar 1871(6)Chancery Appeals 483.At page 406 he stated the law thus:" "Now,as regards the law of the case,I should think it beyond dispute after Chasemore v .Richards [7 H.L.C.349;5 Jur.( N.S.) 873].Mr.Justice Wightman there laid down the Law very plainly in giving the opinion of the Judges upon the subject,and the distinction was there drawn "and,I should have I thought,firmly established "between water which comes no one known exactly whence,and flow no one knows exactly how,either underground or on the surface,unconfined in any channel,either as rainfall or from springs of the earth,which may vary from day to day,or spring up from beneath the surface in a direction which no one knows "between that species of water and water once confined in a regular channel.When 1 say 'once ' ;,of course I mean,for such a period of time as that there can be no difficulty raised with reference to the rights of the parties." No doubt,in that case on the facts it was found that Local Board had also drawn water from the running stream over and above withdrawing underground springs flowing in undefined channels and the conduct of drawing of water from the running stream was held actionable.The learned Judge at page 487 has noticed the distinction that has to be made in the case of tapping underground water,flowing in an undefined channel and withdrawing water flowing in a defined surface channel thus: "If you are simply using what you have a right to use,and leaving your neighbour to use,the right of the water as it flows on,you are entitled to do so;but you must not appropriate that which you have no right to appropriate to yourself.In this case there is, ex concessis ,a defined channel in which this water was flowing,and I think the evidence is clear that some of it is withdrawn by the drain which the Local Board have made.As far as regards the support of the water,all one can say is this:I do not think Chasemore v .Richards or any other case,has decided more than this,that you have a right to all the water which you can draw from the different sources which may percolate underground;but that has no bearing at all on what you may do with regard to water which is in a defined channel,and which you are not to touch.If you cannot get at the underground water without touching the water in a defined surface channel,I think you cannot get at it at all.You are not by your operations,or by any act of your to diminish the water which runs in this defined channel,because that is not only for yourself,but for your neighbours also,who have a clear right to use it,and have it come to them unimpaired in quality and undiminished in quantity.That appears to be to be clearly the course which the Local Board have taken,and,therefore,they have clearly and plainly given ground for the injunct ion." These observations are likely to be understood as recognising a right over percolating underground water but as stated in English v. Metropolitan Water Board 1907(1)K.B.588 they relate only to a direct tapping of an overground stream flowing in a defined channel and not a mere withdrawal of percolating under­ground water.It is argued on behalf of the appellant that the principle in English law as regards the right of an owner to tap underground water by sinking tanks or wells in his property cannot be applied in this country and in support of it reliance was placed on the decision of the Madras High Court in Basavana v .Narayana A.I.R.1931 Mad.284.In this case ryots of a village filed a representative suit against the ryots of another village for a declaration of the formers right to take water to their fields from a particular point in a river,without any interference from the latter.Both these villages lie on opposite sides of a river.Both villages have registered wet land irrigated by the river by channels there from which are recognised as irrigation source.When there is water flowing in the river,each village gets its supply -direct from its channels taken off from the banks.When the surface flow in the river ceases the ryots have been in the habit of tapping the subsoil flow and leading it to the main channel.The plaintiffs claimed that it has been their custom and right to tap the river bed subsoil water at a particular point and the custom of the defendants to tap the water from another point lower down.The defendants changed the point of tapping further upstream than usual which came close to the point from which the plaintiffs were taking water,as a consequence they drew off from the plaintiffs 'channel a considerable portion of their former supply.Alleging that this has seriously diminished the water supply to the plaintiffs the suit was filed for an injunction restraining the defendants from tapping the water near the point from where plaintiffs were tapping.In allowing the plaintiffs 'suit a Division Bench of the Madras High Court observed that on the evidence the plaintiffs have established a custom to take water from a particular point and that it is a legal right.It was observed that the river­bed is like a large well or a subterranean pond from which authorised channels took off at various points for irrigating wet areas.In the course of the judgment it was observed that the law regarding underground streams as applied in England may not be applicable to this country.The water flowing in a river bed is always in a defined channed and therefore the tapping of water in a defined channel even if underground so as to diminish the supply of water to another person accustomed to have the use of it was held actionable.The case of rival owners of the surface lawfully using their own property and claiming that ownership of the surface imports ownership of and property in subsoil water is different from the case of rights of rival claimants to water which is a property of a third party,namely the Government.That is not the case here.The water which may otherwise come into and then flow through the poramboke channel is withdrawn underground and flows into the tank of the defandant.In such a case,according to me,plaintiff has no right to complain and hence the above decision of the Madras High Court does not apply.The other decision relied on by the plaintiff is Manjappa Shetty v .Manjakke Shedthi A.I.R.1961 Mysore 268.There it was held that the defendant has no right to draw or abstract or tap water flowing in a defined overground channel.If he does that the lower riparian proprietor who has a right to the water flowing in such overground water course can institute an action against the other.With respect,that decision has no application here.In this case there is little evidence to show that the defendant was tapping water flowing in the overground channel.The action of the defendant in sinking a well or tank in his property resulting in the stoppage of subterranean water flowing into the channel does not amount to tapping of the water flowing along the surface channel Even if the plaintiffs 'case that water which was otherwise oozing into the channel from the eastern side of it,namely from the property of the defendant,is withdrawn as a consequence of the defendant sinking a tank in his property is correct,for the reasons stated the plaintiff has no cause of action against the defendant.
(3.) THERE is also no satisfactory evidence to prove the plaintiff's contention that water used to come out of springs at the point situated in the middle of the thodu and that as a consequence of the defendant's action that has stopped.Even assuming that it is not actionable.Therefore,the plaintiff as a riparian owner has no cause of action against the defendants.;


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