Case ID: 1577

Judgment:
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. C.K. Daphtary	 Solicitor General of India	 N.S. 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 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 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. 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	 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. 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 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. 26	788/1/as 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. 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 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 187(9). 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 of	the 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 (1)(1851) 6 E	.c. 353 : ; (2) (1931) L	R. 59 I.A. 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.