HARIHAR PRASAD SINGH Vs. MTJANAK DULARI KUER

JUDGEMENT

(1.) This is an appeal from a decision of the Additional Subordinate Judge at Arrah, dated 16 May 1938, affirming a decision of the Munsif of Arrah, dated 12th October 1936. The Munsif dismissed the appellants suit with costs, and the subordinate Judge similarly dismissed the appeal. The appellants are the maliks and raiyats of village Dihra, and they sued the respondents as maliks and raiyats of a lower village Chasi for a declaration of their right to take water from a certain water-course known as nadi Harkhaine to their village Dihra for irrigation purposes, along a pyne plot No. 167 of that village, and also by means of sair and don; for a permanent injunction restraining the defendants from interfering with this right; and for damages.

(2.) The plaintiffs case was that there was a natural stream coming from the Sasaram Hills a long way to the south and flowing northwards through villages Baghi, Muradpur, Chaprapur, Dihra, Ohasi, Kurmichak, Dargaon, Poswa, Ahile, Bara, Bartiar and various other villages, and ultimately joining the Gangi river at Gyanpur, which Gangi river in turn falls into the Ganges. The maliks and tenants of village Dihra as riparian owners are entitled to take water from this nadi for irrigation purposes. There is a pyne in village Dihra, plot No. 167, which meets the nadi at a point A shown in the plaint map through which water is always taken for irrigating Dihra lands. Sair and don are also used. Besides the appellants rights as riparian owners, they have also acquired a right by prescription, easement and lost grant to take water from this nadi, as they have been taking it for over twenty years.

(3.) This natural stream is called by various names at different places, namely Harkhaine, Kumhari, Nagini, Nagri and Souraha. Besides this nadi there was formerly another nadi named Kumhari, which also came from the south and flowed northwards on the eastern side of the Harkhaine through villages Amarpur, Gurdiha and Bargaon. This nadi used to join the Harkhaine to the north of village Chasi, and for some distance north of that the joint nadi was called Kumhari.