JUDGMENT M. Madhavan Nair, J. 1. S. A. No. 257 of 1956 is by the plaintiffs, and S. A. No. 227 of 1956 by the 5th defendant in O.S. No. 275 of 1945 on the file of the Munsiff of Kasaragod. 2. The suit is for "a decree restraining the defendants by means of a permanent injunction (a) from obstructing the free flow of water of channel X to plaintiffs' Katta (bund) A by the defendants putting up Kattas at H, K, K1, L or anywhere in the course of the channel; (b) from obstructing the mamool (ancient) right of way of the plaintiffs along the bund of channels Y, C, B and X ; (c) from putting up picotahs (mechanical ladles) at M, N, O, P, Q, R, S or anywhere along the course of the channels X, C and Y ; (d) from leading water from channel X to the defendants' new arecanut gardens raised in Kolke fields (three crop paddy flats 604/8, 605/5 ... 601/6 and for a mandatory injunction directing the defendants to remove the aforesaid Kattas ... and picotahs along the channels ... and to remove the obstruction put in the plaintiff's pathway along the bunds of the channels X, C, Y and along the cement sluice B ........". 3. The plaintiffs are the owners of the areca gardens bearing R. S. Nos. 605/7, 12, 13 ; 651/1, 2, 6, 13 and 14; 658/2 ; 659/4. According to them they used to put up a Katta at point A in channel X and take the water of the stream to irrigate their areca gardens through the cement Voli (artificial channel) B. Channel X is fed by its tributory Y, and the water in channel C used to augment the water flowing from Voli B. The defendants are upper riparian owners having paddy flats upstream, recently converted into areca gardens within seven years prior to the institution of the suit. As the areca plantations require more water than paddy flats, the defendants have put up new Kattas and Picotahs by the side of their lands and appropriated most of the water flowing in the channels, thereby affecting injuriously the plaintiffs' easement right to use the water for irrigating their areca gardens and have also fenced off the way on the bunds of the channels used by the plaintiffs. Injunction as aforesaid was therefore sought by the plaintiffs to restrain the defendants from continuing the unauthorised acts and to remove the obstructions placed by them on the plaintiffs' right to water and right of way. 4. The defendants contended that the Katta A and the Voli B belong to the 1st defendant, that the plaintiffs have no manner of right in Voli B and can claim only the surplus water in the channels after use of defendants, and that the Kattas and Picotahs put up by them are ancient ones not liable to be challenged by the plaintiffs at this distance of time. 5. The Munsiff summarised the scope of the suit in paragraph 22 of his judgment thus: "It may also be mentioned that the defendants do not claim, either by right of easement or prescription, the entire flow of water of channels Y, X and C for their properties north of the cement Voli B, cutting off the entire supply of water of these channels to the properties of the plaintiffs south of B. Their case is that they are entitled to utilise the water of these channels reasonably for irrigation of their properties, the plaintiffs being entitled only to the surplus water of these channels after such user by the defendants. It has therefore to be adjudicated upon as to what are the rights of the respective riparian owners to the water of channels Y, X and C." He held that the plaintiff's claim for an exclusive right for the use of the water of the channels as an easement right has been barred by 'limitation and adverse possession' on account of interruptions for more than two years prior to the institution of the suit, that the Katta A and Voli B belong to the 1st defendant, that the diversion of water of the poramboke channels, X, Y and C to the defendants' garden have not materially affected the plaintiff's gardens to which the surplus water from the channels continued to flow after the defendants' use; and, considering the needs of the various plots of land belonging to the plaintiffs and defendants and the availability of water thereto, held several Kattas and Picotahs justified and several others unjustified and liable to be removed and accordingly gave decree to the plaintiffs as regards the "surplus water" in channels Y, X, C and B. 6. The plaintiffs appealed to the Subordinate Judge of Mangalore, and claimed exclusive right to the use of the water in channel X by putting up Katta A and diverting water through Voli B, and the defendants contended themselves and plaintiffs to be riparian owners entitled to make use of the channels "consistent with their requirements." The Subordinate Judge assumed that the lands upstream owned by the plaintiffs have also been recently converted into areca gardens (which is not a fact as is admitted by counsel before me) and that the plaintiffs are taking water from the channel X for such new gardens, and held that this conduct of the plaintiffs is 'sufficient answer to the appellants' claim for exclusive right, to bund up the water of channel X at A and divert the same through the cement Voli B.' He observed that 'as an uppermost riparian owner the 1st plaintiff has absolute right to use the water of channel X ............ When he himself is an uppermost riparian owner, he cannot deny the same rights to his lower riparian owners,' construed the reference in partition deeds, Exts. B1, B2, B3 and A9 to the construction of Kattas and diversion of water for paddy cultivations to mean that the plaintiffs and defendants 'have equal rights with regard to the use of the channel water for irrigation of their gardens,' and held affirming the decree of the Munsiff in substance that the 'right vests both in the appellants as well as the respondents as riparian owners to make use of the water of the channels for irrigation of their respective gardens.' He summarised the position of law applicable to the case thus : "It is clear that the appellants and the respondents are riparian owners in respect of the water of these three channels. As riparian owners, the appellants cannot claim a better right than the respondents. It is contended on behalf of the appellants that the appellants can acquire a prescriptive right over the water of the channels by diverting the same by artificial means. It may be true that the appellants will have such a right to divert the natural stream by artificial means. It is contended on behalf of the appellants that the appellants can acquire a prescriptive right over the water of the channels by diverting the same by artificial means. It may be true that the appellants will have such a right to divert the natural stream by artificial means. This can be done by the appellants without injury to the rights of the other riparian owners who would have rights on the natural course of the stream to make use of the water in the same manner." 7. It is clear from the above that neither the pleadings nor the judgments of the courts below have expressed a correct view of the rights claimed by the parties in this case. A confusion appears to have prevailed throughout as to whether the rights claimed by the parties in respect of the natural streams concerned were easement rights or natural rights. I would therefore advert to the natural rights of riparian owners and the easement rights that may be acquired in respect of natural waters before I venture to analyse the rights advanced in this case. 8. The word 'riparian' is relative to the bank of a natural stream. The dictionary meaning of 'riparian' is: "of, on, river bank." 'Ripa' is bank, and 'riparian' is an adjectival derivative thereof. So, to be a riparian owner one has to own some land abutting on the natural stream concerned. Lord Selbourn, in Lyon v. Fishmonger Co. (1 App. Cas. 683) observed: "It is, of course, necessary to the existence of such riparian rights that the land should be in contact with the flow of the stream." Coulson and Forbes on Waters and Land Drainage, 6th Edn. page 129 observes: "To obtain the right to the enjoyment of riparian rights, it is only necessary to acquire a portion of the bank of the stream, and that need only be a narrow strip, for no riparian rights can belong to back land unless it be in the same ownership as the bank, for it is contact with the stream that gives rise to the rights. (Miner v. Gilmour (12 Moo P. C. 131.) )" 9. Indian Easements Act, V of 1882, S.7, Illustrations (h) and (j) refer to the natural rights of a riparian owner. (Miner v. Gilmour (12 Moo P. C. 131.) )" 9. Indian Easements Act, V of 1882, S.7, Illustrations (h) and (j) refer to the natural rights of a riparian owner. They read : "(h) The right of every owner of land 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; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner's limits without material alteration in quantity or temperature." "(j) The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes, and watering his cattle and sheep and the right of every such owner to use and consume the water for irrigating such land and for the purposes of any manufactory situate thereon: Provided that he docs not thereby cause material injury to other like owners. Explanation.-- A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of a land or underground, which flows by the operation of nature only, and in a natural and known course." This natural right of a riparian owner to have the stream flow in its natural state, without diminution or alteration is an incident of his property abutting on the stream. 10. Lord Wensleydale in Chasemore v. Richards (1 H. L. C. 349, 382) observed: "It has been now settled that the rights to the enjoyment of a natural stream of water on the surface, ex jure naturae, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as he is to all the other natural advantages belonging to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction, upon the same principle that he is entitled to the support of his neighbour's soil for his own in its natural state. His right no way depends on prescription or the presumed grant of his neighbour." 11. Lord Kingsdown held in Miner v. Gilmour (12 Moo P. C. 131, 156): "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 purposes 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 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." 12. Again Lord Cairns in Swindon Water Co. v. Wilts and Ferks Canal Navigation Company (L. R. 7 R. L. 697, 704) observed : "Under certain circumstances, and provided no material injury is done, the water may be used and may be diverted for a time by the upper owner for purpose of irrigation. This may well be done; the exhaustion of the water which may thereby take place may be so inconsiderable as not to form a subject of complaint by the lower owner, and the water may be restored, after the object of irrigation is answered, in a volume substantially equal to that in which it passed before." 13. These rulings indicate that, in the absence of a prescriptive right to the contrary, every riparian owner is entitled to have the flow of running water, without sensible diminution in quantity or sensible alteration in quality. These rulings indicate that, in the absence of a prescriptive right to the contrary, every riparian owner is entitled to have the flow of running water, without sensible diminution in quantity or sensible alteration in quality. A riparian owner is at liberty to pen back and divert temporarily the waters of a stream flowing by his land in a reasonable way, provided of course he does not thereby injure his neighbours above or below the stream. But any unauthorised interference with or use of the water which prejudicially affects the abovesaid right can be the subject of an action for damage and may be restrained by injunction. Actual perceptible damage is not necessary to maintain an action. See Embrey v. Owen (1851, 6 Ex. 353). 14. But this natural right of a riparian owner to the water in the stream is liable to be abridged, enlarged or modified in many ways by rights acquired by prescription or by express grant. 15. The law relating to artificial streams is entirely different. Artificial streams are those in which the flow of water is caused by the operation of man, and not by natural causes. The owner of the land at the commencement at its flow is the owner of the water in the artificial stream; he is not subject to any rights or liabilities towards any other person in respect of the water of the artificial stream. But he may become liable to duties in respect of such water by grant or contract; or others may acquire rights thereon by prescription. Vaughan Williams L. J. said, in Baily v. Clark & Morland, Ltd. (1902-1 Ch. 649), that, in the case of an artificial watercourse, any right to the flow of water must depend upon some grant, prescriptive easement or arrangement, either proved or presumed from the user by the owners of the land through which the water flowed. The right to or over an artificial watercourse as against the party who created it depends also on the character of the watercourse, whether it be of a permanent or temporary nature, and upon the circumstances under which it is created. See Greatrex v. Hyward (8 Ex. 293) cited with approval in Rameshur Pershad Narain Singh v. Koonj Behari Pattuk (4 App Cas 121). See Greatrex v. Hyward (8 Ex. 293) cited with approval in Rameshur Pershad Narain Singh v. Koonj Behari Pattuk (4 App Cas 121). At page 126 of the latter case it is also observed: "There is no doubt that the right of the water of a river flowing in a natural channel through a man's land, and the right to water flowing to it through an artificial watercourse constructed on his neighbour's land, do not rest on the same principle. In the former case each successive riparian proprietor, is prima facie, entitled to the unimpeded flow of the water in its natural course, and to its reasonable enjoyment as it passes through his land, as a natural incident to his ownership of it. In the latter, any right to the flow of the water must rest on some grant or arrangement, either proved or presumed from or with the owners of the lands from which the water is artificially brought, or on some other legal origin." 16. Prima facie no riparian rights exist, ex jure naturae on artificial watercourses, but all the rights of a riparian owner may be acquired by prescription on artificial watercourses, provided such artificial watercourses are of such a permanent character and have been under such circumstances and was used by lower proprietors as though they had been natural streams. Here, one distinction has to be observed. The party claiming a right in respect of the water in an artificial watercourse must give evidence of his enjoyment of the same as a right beyond the mere suffering by the owner of the watercourse of his receiving such water. The flow of water for 20 years from the eaves of a house cannot give a right to the neighbour to insist that the house should not be pulled down or altered so as to diminish the quantity of water flowing from the roof. In order to create a prescriptive right of easement the state of circumstances must show that the party receiving the same intended to enjoy it as a matter of right. If circumstances only show that one party never intended to give, nor the other to enjoy, the use of the stream as a matter of right, that would not create an easement in the discharge of an artificial watercourse. 17. In Chamber Colliery Co. v. Hopwood (32 Ch. If circumstances only show that one party never intended to give, nor the other to enjoy, the use of the stream as a matter of right, that would not create an easement in the discharge of an artificial watercourse. 17. In Chamber Colliery Co. v. Hopwood (32 Ch. D. 549, 558) Bowen L. J. observed: "......... a man may claim a right to continue the enjoyment upon his land of the discharge on to his land of an artificial flow of water from a watercourse made by somebody else above. That is a very difficult kind of right to establish. The mere discharge of water by an upper proprietor upon the land of a lower, may easily establish a right on the part of the upper proprietor to go on discharging, because so long as the discharge continues there is a submission on the part of the lower proprietor to proceedings which indicate a claim of right on the part of the proprietor above, but it is difficult for the lower proprietor to establish a right to have the flow continued, just as it would be very difficult to make out that because for 20 years my pump has dripped on to a neighbour's ground, therefore he has a right at the end of twenty years to say that my pump might go on leaking. The claim that is being made in the present case is not exactly that. It seems to me to be really a claim to conduct a watercourse across another man's land to your own. It is accompanied with a claim of some right in this watercourse which was made by the defendants. Has there been enjoyment of such a right as of right for twenty years ? That is a pure inference of fact to be drawn from all the circumstances of the case." 18. Thus easements of water may arise in respect of natural streams as also in respect of artificial streams. Such easements, Coulson and Forbes classified under four heads, viz., "1. The right to affect or use the water of a natural stream in any manner not justified by natural right (a) in quantity; (b) in quality. 2. The right to conduct water across a neighbour's land by an artificial watercourse and to go on his land for purposes of clearing it. 3. The right to affect or use the water of a natural stream in any manner not justified by natural right (a) in quantity; (b) in quality. 2. The right to conduct water across a neighbour's land by an artificial watercourse and to go on his land for purposes of clearing it. 3. The right to discharge water or other matter on a neighbour's land. 4. The right to go on a neighbour's land to draw water from a well." 19. Such easements may be acquired by grant, prescription, or implied grant arising from the peculiar relation of the parties at the time they became possessed of their respective tenements. It may be created by a deed or devise. Acquisition by prescription is also possible, founded on usage, longa continuaet pacifica, the acts of user being uninterrupted, open and as of right, nee vi, nec clam, nee precario. As observed by Cresswell J. in Sampson v. Hoddinot (26 L. J-C. P. 148): "By usage (a person) may acquire a right to use the water in a manner not justified by his natural right ......... If the user of the stream by the plaintiff for irrigation was merely an exercise of his natural right, such user, however long continued, would not render the defendant's tenement a servient tenement, or, in any way affect the natural rights of the defendant to use the water. If the user by the plaintiff was larger than his natural rights would justify, still there is no evidence of its affecting the defendant's tenament, or the natural use of the water by the defendant, so as to render it a servient tenement. But if the user by the defendant has been beyond his natural right, it matters not how much the plaintiff has used the water or whether he has used it at all. In either case his right has been equally invaded and the action is maintainable." 20. Turning to the case at hand, the plaintiffs are claiming a right to have a free flow of water in a natural stream. This may be a natural right or an easement right. Plaintiffs 2 to 5 do not own lands abutting on the stream below Katta A. Their lands lie in the back, and therefore they are not riparian owners as such, and cannot claim any natural rights in respect of the water in the suit channels. This may be a natural right or an easement right. Plaintiffs 2 to 5 do not own lands abutting on the stream below Katta A. Their lands lie in the back, and therefore they are not riparian owners as such, and cannot claim any natural rights in respect of the water in the suit channels. The 1st plaintiff does own land abutting on the channel X below Katta A and on channel Y. In respect of the channel Y what the 1st plaintiff claims, is a natural right to have the flow in the channel undiminished in quantity by the artificial use by the defendants for purpose of irrigation of their new gardens. The defendants' lands were, except in the immediate neighbourhood of Voli B, admittedly, before seven years of the suit, Kolke fields (three crop paddy flats). As regards the quantity of water used for the paddy cultivation therein the defendants might have acquired a right by prescription. But the conversion of those lands into arecanut gardens, being within seven years prior to the suit, no prescriptive right as regards the excess quantity of water required for areca plantations over what was formerly appropriated for the paddy cultivation, could have been acquired by them. It then follows that the 1st plaintiff is entitled to have the same quantity of water as he used to receive before the conversion of the defendants' lands into areca gardens in respect of the water in channel C. 21. But the case is different in respect of channel X. Here all that the plaintiffs claim is a right to have the flow of water to Katta A which is not a point at which even the lands of the 1st plaintiff abut on the stream. It is an artificial point at which the artificial watercourse in Voli B belonging to the 1st defendant commences. So in respect of the water collecting at A and passing through the Voli B, which alone is the subject matter of the suit, even the 1st plaintiff cannot claim a natural right. It can only be an acquired right of the nature of an easement to divert the water in the channel X for purposes of irrigation. So in respect of the water collecting at A and passing through the Voli B, which alone is the subject matter of the suit, even the 1st plaintiff cannot claim a natural right. It can only be an acquired right of the nature of an easement to divert the water in the channel X for purposes of irrigation. He must then prove that for a period of more than 20 years, ending within a period of two years prior to the institution of the suit, he had been exercising an easement of water out of the discharge of Voli B. In respect of the water in channel X all that the defendants could claim is only their natural right, which, in regard to the diversion for purposes of irrigation, cannot entitle them to diminish the water in downstream to any sensible extent. As I have observed in respect of the water in channels, the defendants might have an easement to a certain quantity of water taken for the irrigation of their lands when they were used for paddy cultivation. But with respect to the excess water required for areca plantations they could not have acquired any easement right as the plantations are admittedly within seven years of age before the institution of the present suit. It then follows that the defendants are bound to allow the flow of such quantity of water beyond their lands as used to be before the conversion of their lands into areca gardens. This proposition applies to the stream up to Katta A at which the plaintiffs and the 1st defendant are claiming acquired rights to the water through the artificial watercourse, Voli B. If the plaintiffs 2 to 5 who are not riparian owners in respect of the suit channels have also been enjoying as of right, as an easement, water for irrigation of their lands out of the discharge of Voli B or of channel C for more than 20 years ending within a period of two years prior to the institution of the suit, certainly that easement can also be the subject of enforcement in this suit. 22. 22. As the court below did not keep these distinctions in its view in disposing of the appeal, I am constrained to set aside the decree and remit the case to the first appellate court (now, the Subordinate Judge's Court, Kasaragod) for a fresh disposal in the light of my observations above. The fact that the plaintiffs are upper riparian owners in relation to the defendants in respect of other lands not involved in this suit is not relevant in this suit which is for enforcement of their riparian or easement rights in respect of the water in channel X at Katta A and in channel C. So also the rights of the defendants inter se do not arise for adjudication in this case ; the disputes if any, in respect of those rights can only be the subject of proceedings properly framed for that purpose. 23. One other point that needs mention in this connection is the right claimed by the plaintiffs of a way over the bunds of the poramboke channels. It is stated that the western bund of channel X and the eastern bunds of channels C and Y are poramboke lands. If that be really so it is not open to the adjacent owners to enclose them with their lands and thereby obstruct the plaintiffs' use of those bunds as a way to their lands up the stream. The court below will consider this aspect of the case also in the revised disposal of the case. The parlies shall be at liberty to adduce their respective evidences in the case. 24. As this is an old suit the court below is directed to dispose of the same within a period of five months after the receipt of the records there; and if any extension of time be required that shall only be with the leave of this Court. 25. As the remand is occasioned mainly by the confused way in which the pleadings have been drafted, I do not think this is a fit case in which refund of institution fee paid on the appeal memoranda or costs of these second appeals between party and party should be ordered.