Case: Shankar Narayan Ranade Vs. Union Of India

The said village had been granted to the ancestors of the appellant by the Peshwa Government in 1773 A. D. 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 Cheheri 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 and 2 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 shares in the Inam village of Vadner and he brought the present suit No. 12/1950 in the Court of the Civil Judge (Senior Division) at Nasik, claiming reliefs against the Union of India and the State of Bombay, respondents 1 and 2 respectively, on the basis of his title to the running water of the said river.2. It appears that in 1942, during the period of the World War II, 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 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.3. The appellant then approached the military authorities and also the Government of Bombay and claimed compensation for the use of the water and the land by the military authorities. Since his request for adequate compensation was not met, he filed the present suit on the 11th March, 1950, in a representative character under O. 1, R. 8 C. P. C. 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 owner 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 rights 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. 1,11,250/- 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 incidental reliefs were also claimed by the appellant.4. Respondent No. 2 contested the appellants 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 the 17th February 1913 under section 5 of the Bombay Irrigation Act, 1879, and in consequence, the Inamdars had lost their rights, if any, in the water 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.5. 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 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. 26,728/1/- as compensation for the use of the water up to the 31st December 1949, directed that the compensation for the use of water for the period subsequent to 1st January, 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 lost of income from the riverbed during the period that the act of the military authorities continued.6. This decree was challenged both by the appellant and the respondents by cross appeals Nos. 634/1954 and 640/1953 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 Ss. 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 High Court was in error in rejecting the appellants 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.

Reasoning: .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.