P L D 1978 Peshawar 157 (PLP)

Gul Haider and others have by this appeal questioned the judgment of 10-5-1968 passed by Additional District Judge, Peshawar whereby affirming the judgment of the Court of first instance the appeal by the plaintiffs was dismissed.

2. The plaintiffs who are appellants in this appeal instituted a declaratory suit in representative form praying for the demolition of an indigenous dam constructed by the respondents for irrigation of their lands in an innundatory ravine known as Algada Lawaghar in the Revenue estate of village Chokara, District Kohat.

3. The suit was resisted by the defendants giving rise to as many as nine issues, however, arguments were addressed by the learned counsel for the parties on Issues Nos. 6, 7 and 8 reproduced below "Issue No. 6.-Whether the plaintiffs' lands, are "Bandgora" and are entitled to be irrigated through dams in suit in the Algadah "Kam Lawaghir" and that the defendants' lands in suit being of the kind of barani are not entitled to be irrigated through the waters of the Algadah in question? Issue No. 7.-On proof of issue No. 6, whether the plaintiffs are entitled to get the dams constructed by the defendants in the suit Algadah (as alleged in the plaint) demolished as prayed for and also for the grant of an order of perpetual injunction as prayed for? Issue No. 8.

Whether the rights of the plaintiffs are not affected by the construction of the dams of the defendants, because of the distance between and of the situation of the dams of the parties? A brief note on the site plan Exh. P. W. 2/9 adequately explains the point at which the parties are at variance.

4. A ravine with its source in the hills to the North runs from East to West along the lands of the parties of village Chokara. This ravine is known as Lawaghar which is innundated occasionally by hill torrents, the water of which is stored in dams for irrigation of lands adjoining the ravine. In the settlement of 1886 two dams known as Band "Sui Khel" irrigating about 870 kanals and 17 marlas of land of the appellants are shown in existence. These lands irrigated from these dams are recorded as 'Bandgora' and the kind of land situated upstream belonging to the respondents are basically recorded as Barani, however, if and when there was sufficient water in the dams of the appellants, the surplus water having been titled back upstream would partially irrigate the lands of the respondents. The lands of the respondents for the irrigation of which the dam with abutments 1 to 6 has come into existence in 1960; were originally Seris, but at present a portion of it has been sold by the Serikhors. The case of the appellants in brief is that in the settlement of 1886 there being no Band in existence except the two Bands of 'Sui Khel' the respondents have no right to construct their Band which being upstream obstructs the flow of water of Sui Khel dams. On being asked the learned counsel for the appellants claimed that no other owner of land upstream up to the source of Lawaghar which originates in the hills, is entitled to erect a Band as it will cause obstruction in the flow of water to their Bands. Prima facie this appears to be quite a tall claim, therefore, it necessitates to be seen whether or not it has any foundation in the record-of-rights. The question is whether the record-of-rights gives the right of monopoly to the owners of Sui Khel dams, over the hill torrent entirely to the exclusion of owners of land situate upstream. The Wajibul Arz Exh. P. W. 2/3 of 1903/4 four sheets mainly records the system of irrigation for the Bands in existence however the following therefrom might be of some assistance: - This clause explains the inter se right of irrigation of the upper riparian of Band. It lays down the principle that the upper riparians have priority inter se the other shares in completely blocking the flow, but the complete diversion of water by the upper riparian qua the other participators in a Band A must not be equated with complete obstruction of water flow for feeding the Band upstream to the exclusion of lower riparian i.e the Sui Khel dams. Explaining this position one of the parties present in Court stated that the abutment in the bed of the ravine for diverting water to the Band does not extend beyond the middle of the bed of the ravine. There is a lot of sense in it for the lower riparian is not deprived of his natural rights. The rule relating to the user and flow of water in a defined natural stream to which every riparian owner has a natural right has been aptly stated in Gaved v. Martyn ((1865) 99 C B (N S) 732), 34 L J C P 352 and 147 R R

739. Mr. Brinda Ban Katiar in his treatise on Easements and Licences in India-Rights relating to Flow of Water says :- "

16. Natural rights relating to the uninterrupted flow of water for supply.-Every owner of land has a right that the water of every natural stream, which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner's limits without interruption and without material alteration in quantity, direction, force or temperature. For the accrual of this right two things are necessary, viz., the stream for which the right is claimed must be natural as defined above and it must pass in a defined natural channel, or more briefly as stated above the source and course both must be natural. If either of them is artificial no natural rights do apply but rights of the originator as well as persons by, through, or over whose land it passes or governed by the agreements, if any, between them or by the law of easements or licences as the case may be. The channel through which such stream flows must also be known and defined. If it is underground or unknown no natural rights to the flow of it are available to the person by, through or over whose land it passes. The reasons for the opposition are the same as were already noticed in connection with the rights relating to the use and consumption of water. The law on the subject has been laid down by a series of great Judges in England and it will not be out of place to notice some of the cases in detail. Parke B. stated the law as follows :- 'The right to have a stream to flow in its natural state without diminu tion or alteration is an incident to the property in the land through which it passes; flowing water is publici juris, not in the sense that it is a bonum vacans to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it; that none can have any property in the water itself, except in the particular portion which be may choose to abstract from the stream and take into his possession, and that during the time of his possession only. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it. This right to the benefit and advantage of the water flowing past his land is not an absolute and exclusive right to the flow of all the water in its natural state, but is a right only to the flow of the water and the enjoyment of it, subject to the similar rights of all the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence. It is only, therefore, for an unreasonable and unauthorised use of this common benefit that an action will lie. For such an use it will, even though there may be no actual damage to the plaintiff." In Miner v. Gilmour Lord Kingsdown said 17.

Natural rights fn natural watercourse.-By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purpose and for his cattle, and this without regard to the effect which such use may have in case of a deficiency upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors either above or below him. Subject to this condition, he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation; but he has no right to interrupt the regular flow of the stream if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury."

5. Finding no merit in the appeal the same is dismissed with no order as to costs. S.Q. Appeal dismissed.