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PETITIONER: SHANKAR NARAYAN RANADE

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 08/02/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. HIDAYATULLAH, M. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1964 AIR   24            1964 SCR  (1) 885

ACT:    Inam-Construction  of  sanad-Grant of  village  including water-If  includes water of flowing river-Claim of  riparian right  -Vaildiiy-Bombay  Land Revenue Code, 1879 (Act  5  of 1879),  s.  37 (1)-Bombay Irrigation Act, 1879  (Bom.  7  of 1879), s. 5-Transfer of Property Act, 1882 (IV of 1882),  s. 8.

HEADNOTE: 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 s. 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

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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 v. Government of Bombay (1931) 47  Bom. L.  R. 839 and Lyen v. 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.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil 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.   S. 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.    1963.   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

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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

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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 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 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

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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 s.    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

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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  v. 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)  (1945) 47 Bom.  L.R. 839, 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  v.  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

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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. (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  v. 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 : 155 E R. 574. (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

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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.