Case: Shankar Narayan Ranade Vs. Union Of India

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 of the flowing water of the river cannot be accepted.12. In this connection, it is necessary to remember that the river Valdevi flows through the village only for the distance of 2 miles and 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 appellants right to the flowing water of the river is conceded, it would mean that the Inamdars would be able to divert the water completely and destroy the right 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 of the running water in terms. As we have already seen, the Sanad not only does not make any such grant, but by necessary implications also excludes the running water from the purview of the grant.13. Mr. Pathak then attempted to argue that the diversion of the water of the river Valdevi during the relevant period affected the appellants 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 v. Owen, (1851) 6 Ex. 353 "Flowing water", said Parke, B.,"is publici 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 from an unreasonable and unauthorised use of this common benefit that any action will lie."14. In this connection Mr. Pathak has also referred us to the decision of the Privy Council in the Secretary of State v. Sannidhireju Subbarayudu, 59 Ind App 56 at pp. 63, 64, 65 (AIR 1932 PC 46 at pp. 48, 49). 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 stream us gue 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 from 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.15. 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 appellants claim that the acts of the military authorities had prejudicially affected the appellants rights as a riparian owner to the use of the water, and that means, on the record 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds].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 o 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 well and does not refer to the flowing water of thethe 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 ofare two difficulties in accepting this contention. The first difficulty is that the use of the words "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.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 appellants claim that the acts of the military authorities had prejudicially affected the appellants rights as a riparian owner to the use of the water, and that means, on the record 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.