Appeal No 212 of 1961
From the judgment and decree dated December 11 1957 of the Bombay High Court in First Appeal No 640 of 1957
G section pathak N D Karkhanis B Datta J B Dadachanji O C Mathur and Ravinder Narain for the appellant
CK Daphtary Solicitor General of India NS Bindra and R H Dhebar for P D Menon for the respondents
February 8
The judgment of the Court was delivered by GAJENDRAGADKAR J
The short question which this appeal raises for our decision is whether the appellant Shankar Narayan Ranade has established his title to the running water of the river Valdevi which runs through his Inam village Vadner
The said village had been granted to the ancestors of 887 the appellant by the Peswa Government in 1773 AD
This grant was continued by the British Government when the British Government came in power
The river Valdevi has its origin in the hills of Trimbak and from those hills it flows to Vadner and then to Chehedi where it joins the river Darna and thus loses its individuality
The total length of this river is about 25 miles while its length within the limits of Vadner village is about 2 miles 82 furlongs
The Darna river after its conjunction with Valdevi proceeds towards Sangvi and there is merged with Godavari river  The appellant is one of the sharers in the Inam village of adner and he brought the present suit No 121950 in the Court of the Civil judge Senior Division at Nasik claiming reliefs against the Union of India and the State of Bombay respon dents 1  2 respectively on the basis of his title to the running water of the said river
It appears that in 1942 during the period of the 11 Would War the Military authorities constructed barracks and other residential quarters for the army personnel within and outside the limits of Vadner
They also built a dam across the river Valdevi within the limits of Vadner and dug a well near the bank of the river
This well was fed with water carried by two channels drawn from the river
When the water reached the well it was pumped from the well and duly stored in four reservoirs where it was filtered and then it was carried by means of pipes to the residential area occupied by the military personnel
The appellant then approached the military authorities and also the Government of Bombay and claimed compensation for the use of the water and the lands by the military authorities
Since his request for adequate compensation was not met he filed the present suit on March 11 1950 in a representative character under O 1 r 8 C P C 888 In this suit the appellant speaking for himself and for the other sharers in the Inam village of Vadner alleged that the jagirdars of the village were full owners of the entire area of that village including the land the stream and the water flowing through the stream within the limits of the village
According to the plaint the acts of diversion of water committed by the military authorities had deprived the appellant and the other Inamdars of their right to utilise that water for their own gains and thus had caused injury and damage to them
As compensation for this damage the appellant claimed Rs 111250 from the respondents
The appellant further made a claim for Rs 750 as compensation for the use of his land by the military authorities
The diversion of water and the use of land continued from 1942 to 1949
Some other incidential reliefs were also claimed by the appellant
Respondent No 2 contested the appellant s claim
It urged that the Inamdars were not the grantees of the soil but were the grantees of the royal share of the revenue only and it was urged that in any case they had no ownership over the flowing water of the Valdevi river
Respondent No 1 adopted the written statement of respondent No 2 and filed the Purshis in that behalf
According to the respondents the river Valdevi had become a notified canal by virtue of a notification issued on February 17 1913 under section 5 of the Bombay Irrigation Act 1879 and in consequence the Inamdars had lost their rights if any in the waters of the said river and respondent No 2 had the absolute right of the use of the said water
A plea of limitation was also made by both the respondents
The learned trial judge made findings in favour of the appellant on all the issues
He held that the Inamdars were the grantees of the soil that the 889 river Valdevi and its flowing water belonged to them that the notification on which reliance was placed by the respondents was invalid that the acts of the military authorities were unauthorised and that the appellant was consequently entitled to the compensation for the use by the military authorities of the water of the river and his lands and also for the loss of his income from the river bed
According to the trial Court the appellant was entitled to this compensation only for two years before the date of the suit and the rest of his claim was barred by time
Accordingly it passed a decree in favour of the appellant for an amount of Rs 267881as compensation for the use of water up to December 31 1949 directed that the compensation for the use of water for the period subsequent to January 1 1950 should be ascertained in execution
proceedings and awarded compensation  Rs 100 per annum for the use of the land and Rs 50 per annum for the loss of income from the river bed during the period that the act of the military authorities continued
This decree was challenged both by the appellant and the respondents by cross appeals Nos
6341954 and 6401953 respectively The appellant claimed a larger amount of compensation whereas according to the respondents no compensation was payable in respect of the alleged diversion of the running water of the river Valdevi
It appears that before the High Court the respondents did not dispute the finding of the trial Court that the Inamdars were the grantees of the soil and conceded that the rights of the Inamdars such as they were to the waters of the river Valdevi had not been extinguished by the notification issued under the Bombay Irrigation Act
It was however urged that the Valdevi river being a notified canal the military authorities could have used its water by making appropriate applications under 890 sections 17 and 27 of the said Irrigation Act but since there was no evidence to show that any such applications had been made the said point did not survive
The main argument urged by the respondents in their appeal was that the appellant was not the owner of the running water of the stream and so he had no right to claim any compensation for the alleged diversion of the said water by the military Authorities
The High Court has substantially accepted this contention
It has held that as owners of the lands in the village situated on both banks of the river the Inamdars were entitled to the use of the water of the river as riparian owners and what belonged to them was water which they took out from the river and appropriated to their use they were however not entitled to claim title over the flowing water of the river and so the diversion of the flowing water of the river cannot sustain their claim for compensation
The decree passed by the trial Court in respect of compensation for the wrongful use of the lands was not challenged by the respondents
In the result the High Court modified the decree passed by the trial Court by setting aside that part of it which related to the compensation for the use of the water of the Valdevi river by the military authorities and confirmed the rest of the directions issued by the decree
It is against this decree that the appellant has come to this Court with a certificate issued by the High Court  and the main point which has been urged before us by Mr Pathak on behalf of the appellant is that the high Court was in error in rejecting the appellant s claim that the Inamdars of the village were the owners of the running water of the river Valdevi during its course within the limits of the Inam village of Vadner
In support of the appellant s case Mr Pathak has urged that in construing the Sanad on which the appellant s title is founded it would be necessary to 891 bear in mind two important considerations
The first consideration is that the flowing water of a river constitutes property which can belong to a citizen either by grant or otherwise and assistance is sought for this argument from the provisions of section 37 of the Bombay Land Revenue Code Act V of 1879
Section 37 1 provides inter alia that all public roads lanes and paths which are not the property of individuals belong to the Crown and amongst the items of property specified in this clause are included rivers streams nallas lakes tanks and all canals and watercourses and all standing and flowing water The argument is that this sub section Postulates that the items of property specified by it can belong to private individuals and it provides that if they are not shown to belong to private individuals they would vest in the State
Therefore in construing the Sanad We ought to remember that the river and its flowing water constitute property which can be granted by the Ruler to a citizen
The other consideration on which Mr Pathak has relied is that tinder the provisions of section 8 of the Transfer of Property Act it should be assumed that unless a different intention is expressly or necessarily implied a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof
Mr Pathak contends that assuming that prior to the grant the Peshwa Government as the ruling power of the day was the owner of the river and its flowing water when the said Government made a grant to the appellant s predecessors the principle enunciated by section 8 of the Transfer of Property Act should be applied and the grant should be construed to include all rights title and interest of the grantor unless there is a contrary provision either expressly made or implied by necessary implications
892 Bearing those two considerations in mind let us consider the terms of the Sanad itself
The Sanad is drawn in terms which are consistent with the pattern prevailing in that behalf in those days and contains the usual familiar recitals
The relevant portion of the Sanad reads as follows   Seeing the respectable Erahsins performing Snan Sandhya bath and prayer leading ascetic life devoted to the performance of their duties as laid down in Shrities and Smrities the Government has constructed houses there and given to them
Thinking that if the same are given to them it would be beneficial to the Swami and to the Kingdom of Swami the village of mouje Vadner Pargana aforesaid in a b Swarajya as well as Moglai Dutarfa on both sides has been given to them as Nutan New c d Inam together with Sardeshmukhi Inam Tizai e f g Kulbab Kulkanu Hali Patti and Pestr Patti excluding the rights of Hakkadar and Inamdar and together with water trees grass wood stones and hidden treasures for maintenance of their families The Sanad then defines the shares in the current revenue of the said village amongst the respective shares
In the concluding portion it makes certain other provisions with which we are not concerned in the present appeal
This Sanad was executed in 1773 A D During the British rule this Sanad was confirmed in 1858 A D
It is common ground that the material terms which have been construed for the purpose of determining the title of the appellant are contained in the earlier sanad
It would be noticed that the Sanad refers to the rights in water trees grass wood stones and hidden 893 treasures
It is well settled that the word water jal refers to water in tanks or wells and does not refer to the flowing water of the river
Indeed if a grant of the river including its flowing water is intended to be made the Sanad would have definitely used the word  river nadi because it is wellknown that when rivers drains or culverts are intended to be gifted the Sanads usually use the words nadi and nalla
Therefore on a plain construction of the relevant words used in the Sanad there can be no doubt that what is conveyed to the grantee by the Sanad is stationary or static water in the ponds or wells and not the flowing water of the river
The specific reference to water meaning water of the well or the pond serves two purposes  it defines the kind of water which is conveyed and by necessary implication excludes the grant of flowing water of the river
Sanads containing words like these have frequently been considered by the Bombay High Court in the past and it has been consistently held that the word water means only water in the ponds or wells and does not refer to the flowing water of the river vide Annapurnabai Gopal vs Government of Bombay 1
Therefore the two considerations on which Mr Pathak strongly relied in support of his construction of the Sanad do not really assist him
The language of the Sanad precisely defines the nature of the water that is conveyed and in doing so by necessary implication excludes the flowing water of the river
Mr Pathak however suggests that it is not disputed by the respondents that the Sanad in question grants title to the soil of the village and is not confined to the royal share of the revenue only  and he argues that the grant of the soil necessarily means the grant of the bed of the river while it flows within the limits of the Inam village
If the bed of the river has been granted to the appellant s predecessors by the Sanad why does it not follow that the water flowing 1  894 on the said bed during the said limits belongs to the appellant  The title to the running water of the river must Mr Pathak says go with the title to the bed of the river
There are two difficulties in accepting this contention
The first difficulty is that the use of the word water jal in the Sanad as we have already held excludes the running water of the river
Besides it is by no means clear that the title to the flowing water of the river necessarily goes with the title to the bed of the river
As was observed by Lord Selborne in Lyon vs Fish mongers  Company  The title to the soil constituting the bed of a river does not carry with it only exclusive right of property in the running water of the stream which can only be appropriated by severance and which may be lawfully so appropriated by every one having a right of access to it
Therefore the argument that the grant of the soil of the village including the bed of the river must necessarily include the grant of the title to the flowing water of the river can not be accepted
In this connection it is necessary to remember that the river Valdevi flows through the village only for the distance of 2 miles  2 furlongs
It is not a case where the whole of the stream of the river from its origin to its merging in another river runs entirely through this village
If a river takes its origin within the limits of an Inam village and its course is terminated within the limits of the same village that would be another matter
In the present case if the appellant s right to the following water of the river is conceded it would mean that the Inamdars would be able to divert the water completely and destroy the rights of the other riparian owners whose lands are situated outside the village
They may be able to pollute the water or do anything with it to the prejudice of the said riparian owners
Such rights cannot be claimed by the appellant unless the Sanad in his favour makes the grant 895 ofthe running water in terms
As we have already seen the Sanad not only does not make any such grant but by necessary implication also excludes the running water from the purview of the grant
Mr Pathak then attempted to argue that the diversion of the water of the river Valdevi during the relevant period affected the appellant s right as the riparian owner and that according to him would furnish him with a cause of action for claiming damages against the respondents
In this connection Mr Pathak invited our attention to the observations of Parke B in Embrey vs Owen
1 Flowing water said Parke B is public juris in this sense only that all may reasonably use it who have a right of access to it and that none can have any property in the water itself except in the particular portion which he may choose to abstract from the stream and take into his possession and that during the time of his possession only
The right to have a stream of water flow in its natural state without diminution or alteration is an incident to the property in the land through which it passes  but this is not an absolute and exclusive right to the flow of all the water but only subject to the right of other riparian proprietors to the reasonable enjoyment of it and consequently it is only for an unreasonable and unauthorised use of this common benefit that any action will lie In this connection Mr Pathak has also referred us to the decision of the Privy Council in the Secretary of State for India vs Subbararayudu 1
In that case the Privy Council has elaborately considered the nature and extent of the rights which a riparian owner can claim
A riparian owner observed Viscount Dunedin is a person who owns land abutting on a stream and who as such has a certain right to take water from the stream
In ordinary cases the fact that his land abuts on the stream makes him the proprietor of the bed of the 11851 6 Ec
353   2 1931 LR 59 IA 56 63 64 896 stream usque ad medium filum
But he may not be
He may be ousted by an actual grant to the person on the other side or he may be and often is ousted by the Crown when the stream is tidal and navigable the solum of the bed belongs to the Crown
 It was also observed that the right of a riparian owner to take water is first of all for domestic use and then for other uses connected with the land of which irrigation of the lands which form the property is one
This right is a natural right and not in the strict sense of the word an easement though in many cases it has been called an easement
 We do not however think that it is possible for us to allow Mr Pathak to raise this alternative argument before us because it is clear that the reliefs claimed by the appellant were based only on one ground and that was the title to the flowing water of the river
In paragraph 8 of the plaint the appellant has specifically stated that he was claiming the amount of compensation for the use of water belonging to the plaintiff and in paragraph 3 it has been clearly averred that the running water of the river belongs to the appellant and so by the unauthorised acts of the military authorities the appellant and the Inamdars were not able to let out their bed of the stream for the plantation of water melons etc and were thus put to loss
In other words the plaint has made no allegation even alternatively that the appellant and the other Inamdars of the village had certain rights in the flowing water of the river as riparian owners and the illegal acts of the military authorities had affected the said rights and thereby caused damage to them
In fact as the High Court has pointed out there is no evidence on the record which would sustain the appellant s claim that the acts of the military authorities had prejudicially affected the appellant s rights as a riparian owner to the use of the water and that means on the record 897 there is nothing to show that any damage had been caused to the Inamdars of the village as a result of the diversion of the water caused by the military authorities
Therefore we are satisfied that the appellant cannot now make an alternative case on the ground of his rights as a riparian owner
The result is the appeal fails and is dismissed with costs two sets one hearing fee
Appeal dismissed


Summary:
The appellant was one of the sharers in the Inam village of vadner and brought a suit against respondents claiming relief on the basis of his title to the running water of river valdevi
During World War 11 the military authorities constructed residential quarters within and outside the limits of vadner
They built a dam across the river within the limits of vadner and dug a well near the bank of the river which was fed by the river water and the water was carried to the residential areas
The diversion of water and the use of land continued from 1942 to 1959 which deprived the appellant and the other Inamdars of their right to utilise that water for their own gain and of others  this had caused injury and damage to them for which the appellant claimed compensation from the respondents
According to the respondents by virtue of a notification under section 5 of the Bombay Irrigation Act 1879 the river had become a notified canal and consequently the Inamdars had lost their rights if any in the waters of the said river
They also took a plea of limitation
The trial court decreed the suit and held that the appellant was entitled to the compensation only for two years before the date of the suit and the rest of his claim was barred by time
The decree was challenged both by the 886 appellant and the respondents by cross appeals in the High Court
The High Court dismissed the appeal with modifications
Then followed an appeal to this court on certificate
Held that the use of the word water  in the sanad pro perly construed excludes the running water of the river and it could not be said that title to the flowing water of the river went with the title to the bed of the river
If the sanad made no grant of the running water in terms the appellant could not claim the same as the riparian owner
Anapurnabai Gopal vs Government of Bombay 1931 47 Bom
L R 839 and Lyen vs Fish Mongers  Company 1876 1 App
Cas 662 referred to
Held further that the appellant could not be allowed to make an alternative case on the ground of his rights as a riparian owner as there was neither any allegation in the plaint nor any evidence on the record to that effect