G. N. SABHAHIT, J. ( 1 ) THIS appeal by the plaintiffs is directed against the judgment and decree dt. 5 3. 1975 passed by the Prl. Civil judge, Udupi, in R. A. No. 19/1971 on his file allowing the appeal and reversing the judgment and decree made by the munsiff, Karkala on 16. 12. 1970 in o. S. No. 60/1968, on his file, decreeing the suit of the plaintiffs as prayed for. ( 2 ) THE case of the plaintiffs is that they own a Bagayath land Sy. No. 76/2, wherein there are Areca trees aged about 75 years and more. The area was a Bagayath in 1903 as shown in the Survey settlement. They have been also growing crops in the paddy lands. This they can do by putting up a bund across the river Mathibettu which flows in the Reserve forest belonging to the 2nd defendant. Mathibettu river flows to the west inside the said reserve forest on the south. The plaint lands are irrigated from the water of the said Mathibettu river through an ancient mamool channel starting from the said river and proceeding northwards through the said reserve forest and turning westwards into Sy. No. 104/1 and then northwards in Sy. Nos. 104|1, 104|2 and to Sy. Nos. 77/4, 134/6, 134/4, 134/3 and finally into the plaint lands through Sy. Nos. 74/2 and 74/4. The said enjoyment of water is as per Mamul from time immemorial by putting a katta across the said river at the point where the said ancient channel starts. This katta is put up every year after the harvest of Karthi crops, l. e. , at the end of october or early in November. The said katta is called as 'chitrabi katta' and the plaintiffs' family has been using the said water openly, uninter ruptedly and as of right for more than 60 years and hence, according to plaintiffs, they and their predecessors have obtained the right by ancient and immemorial use as also by prescription. The garden and the paddy field' have no other source of water. They further averred that they were also entitled to repair the said channel when needed as it is an incidental right. ( 3 ) THEY further claimed that the first defendant has no right to put up chitrabi katta or to take water from the said river. The garden and the paddy field' have no other source of water. They further averred that they were also entitled to repair the said channel when needed as it is an incidental right. ( 3 ) THEY further claimed that the first defendant has no right to put up chitrabi katta or to take water from the said river. At a considerable distance from Chitrbai katta and to the west of it, the first defendant used to put the Dambe katta across the said mathibettu river and he was taking water through a channel to his land called Kuchur. But the said channel is quite distinct from the plaintiffs' channel. On 23. 10. 67, the plaintiffs put up a katta and began to use the water as they had raised suggi crop. The first defendant was ill-disposed towards the plaintiffs and in order to harass them and to cause loss, destroyed the said katta and also a portion of their mamool channel on 8. 11. 1967. The plaintiffs complained to the police against him and after a local inspection, the police informed the plaintiffs that they could reconstruct the said katta and repair the channel. They attempted to do so on 24. 11. 1967 when the Forest Guards as well as Forester, probably at the instigation of the first defendant, forcibly took away the 4 spades, pickaxe, one crowbar, 2 bill hooks. 1 basket and tin containing materials and obstructed the plaintiffs from putting up the katta and repairing the channel. Thus the plaintiff are unable to irrigate their lands and have suffered heavy loss. ( 4 ) NOTICE dt. 25. 11. 1967 was issued to the 2nd defendant under S. 80 c. P. C. , but the 2nd defendant did not reply. The first defendant according to plaintiffs, has been also added as a Manager of the Aliyasanthana family and they are also disturbing the plaintiffs in the use of water. ( 5 ) THE plaintiffs, on these averments, prayed for a declaration that plaintiffs are entitled to put up the katta called' Chitrabi katta' across mathibettu river in Kabbinala village every year after the harvest of Karthi crops and to take the water of the said river through mamool channel from near about the said katta and. flowing northwards along the Andar North reserve Forset and in Sy. flowing northwards along the Andar North reserve Forset and in Sy. No. 76/4 of Kabbinala village for their suggi cultivation and crops in the A Schedule properties and also for their bagayat and areca garden therein as per mamool and as of right, and that the plaintiffs are also entitled to repair the said channel whenever it is found necessary, to facilitate the free flow of water in the said channel, and for a permanent injunction restraining the defendants from interfering in any manner with the plaintiffs' said rights. ( 6 ) THE suit was resisted by defendants. Defendant-1 resisted the suit by contending that it was his right to deviate and to take the water through his channel to his lands by putting up a bund called 'chitrabi katta'. He denied the right of the plaintiffs to do so. He denied that the plaintiffs had acquired any right to deviate and to take away the water to their lands. The 2nd defendant contended that the plaintiffs had no right claim either mamool or prescriptive right against them. The trial court raised the following Issues as arising from the pleadings : the learned Munsiff appreciating the, evidence on record answered all material issues except issue No. 6, in favour of plaintiffs and in that view, the learned Munsiff decreed the suit of the plaintiffs as prayed for. Aggrieved by the said judgment and decree, the first defendant went up in appeal before the Civil Judge, Udupi, in R. A . No. 19/1971 on his file and the learned Civil Judge, after hearing the arguments, raised the following points as arising for his consideration in the appeal: 1 Whether the plaintiffs are entitled by mamool or custom to the water of Mathibettu river, Chitrabi katta and its canal? 2. Whether the plaintiffs have acquired the right of irrigation by mamool? 3. What order? additional Point : 4. Whether respondents 1 and 2's petition I. A. No. III has to be allowed? the learned Civil Judge, reassessing the evidence on record, answered point nos. 1 and, 2 in the negative and additional point No. 4 also in the negative and in that view he allowed the appeal on reversing the judgment and decree of the trial Court and directed the suit of the plaintiff to be dismissed. the learned Civil Judge, reassessing the evidence on record, answered point nos. 1 and, 2 in the negative and additional point No. 4 also in the negative and in that view he allowed the appeal on reversing the judgment and decree of the trial Court and directed the suit of the plaintiff to be dismissed. Aggrieved by the said judgment and decree, the plaintiffs have come up with the above Second Appeal before this Court. ( 7 ) THE learned Advcoate for the appellants strenuously urged before me that the very approach of the learned Civil Judge to the facts of the case is illegal and erroneous and, as such, the appreciation of the evidence by him is vitiated. He pointed out that the learned Civil Judge laboured under the impression that no mamool or prescriptive right could be established against the Government for the use of river water and, as such, his very approach was erroneous and illegal. His appreciation of evidence was perverse obviously because of his illegal approach to the facts of the case. Hence, he submitted that the judgment and decree of the learned civil Judge should be set aside and those of the learned Munsiff should be upheld and sustained. ( 8 ) AS against that, the learned government Advocate strenuously argued supporting the judgment and decree of the learned Civil Judge, and the learned Advocate appearing for defendant-1 arrayed as respondent-1 in the appeal, argued agreeing with the learned Counsel appearing for the appellants that the approach of the learned Civil Judge was erronepus and, as such, the judgment and decree of the learned Civil Judge should be set aside and the matter should be remitted back to the learned Civil Judge for re-assessment of evidence in the proper perspective. The points, therefore, that arise for my consideration are:1. Whether the learned Civil judge was justified in his approach that no prescriptive or mamool rights could be established against the Government for the use of the river waters ? and 2. Whether the appeal should be sent back to the first Appellate Court for reassessment of evidence? ( 9 ) B. B. KATIAR, in his commentary on Easements and Licences, 9th Edn. 2nd Reprint, at page ?48, speaking about the acquisition of prescriptive rights against the Government at Note-45, under the heading. and 2. Whether the appeal should be sent back to the first Appellate Court for reassessment of evidence? ( 9 ) B. B. KATIAR, in his commentary on Easements and Licences, 9th Edn. 2nd Reprint, at page ?48, speaking about the acquisition of prescriptive rights against the Government at Note-45, under the heading. In the case of Government, Thirty year's Enjoyment must be proved, has observed : "whether a right of easement can be claimed against the Crown by means of a long and continued user was questioned under the Indian limitation Act, 1871, and 1877 which did not contain a provision similar to that contained in the Indian Easements Act, (Act No. XV of 1877), though such rights were recognized as capable of acqufsition against the Ease india Co. as well as against the state before the Indian Limitation act, 1871, came into force (Ponnuswamy v. The Collector of Madura. 5 M. H. C. 6; Collector, Thana v dadabhoy, 1 B. 352 ). It has been held both in England as well as in india that the State is never bound by statutory enactment unless the intention of the Legislation to bind the state is clearly and unmistakably expressed. The English prescription act in Sections 1 and 2 expressly authorises the acquisition of easements (except easements of light) which are provided for by See. 3 and profits a Prendre against the State as well. "the addition of a separate clause for this purpose to Sec. 15 of the indian Easement Act, 1882, and to sec. 26 of the Indian Limitation Act 1908 which corresponds to Sec. 25 of the Limitation Act, 1963 (36 of 1963) now leaves no doubt that all easements can be acquired even against the State notwithstanding any law to the contrary prevailing before those enactments. "thus, it becomes clear that the easement by mamool or by prescription can be against the State also. "thus, it becomes clear that the easement by mamool or by prescription can be against the State also. S 25 of the Indian Limitation Act 1963 corresponding S. 26 of the old Act reads:"acquisition of Easement by Prescription: (1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right without interruption, and for twenty years, and where any way or water course or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person cliaming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible. (2) Each of the said periods of twenty yeras shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. (3) Where the property over which a right is claimed under subsection (1) belongs to the Government that sub-section shall be read as if for the words 'twenty years' the words 'thirty years' were substituted. "thus, it becomes clear that the Limitation Act has recognized the acquisition of right to use the water or watercourse by mamool or prescription even against the Government. ( 10 ) IT is no doubt true that S. 2 of easements Act provides for certain rights in favour of the Government it reads :"nothing herein contained shall be deemed to affect any law not hereby expressly repealed; or to derogate from- (a) any right of the Government to regulate the collection, retention and distribution of the water oi rivers and streams flowing in natural channels, and of natural lakes and ponds, or of the water flowing. collected, retained or distributed in or by any Channel or other work constructed at the public exponse for irrigation". This makes it clear that if the Government wants to undertake any irrigation project, then the right oi the government prevails over the right of the private parties acquired by way of mamool or easement. That is how the Karnataka Irrigation Act, 1965 has been enacted by our State, and Chap.-2 of the Act contemplates construction, control and maintenance of irrigation works. That is how the Karnataka Irrigation Act, 1965 has been enacted by our State, and Chap.-2 of the Act contemplates construction, control and maintenance of irrigation works. It shall be the power of the state to construct, control and maintain such irrigation works, and S. 4 (1) prohibits any private person to construct, any irrigation work, and S. 46 read with Rule 17b of the Rules framed under the Act, further contemplates that a private person cannot undertake an irrigation work with regard to the use of water of a flowing stream. This makes it clear that if and when Government wants to undertake any irrigation project, the right of the Government prevails over any private right acquired by individuals against the government. The right of the Government is paramount. That is what is contained in S. 2 of the Easements act. ( 11 ) IN the instant case, there is no contemplation of any project for purposes of irrigation by the Government and, as such the irrigation Act does not apply to the facts of the present case. The river has been flowing un-obstructed in the reserve forest area and since it was near the lands of the plaintiffs, their ancestors according to the plaintiffs dug a chanel connectted it with the drainage and deviated the course of that water to their garden lands and to grow second crop in the paddy lields. This they have been doing, according to them, for more than 80 years and thus they have acquired the right by way of mamool as also prescription. ( 12 ) THE learned Civil Judge appears to think that by virtue of S. 2 of the easements Act no prescription can be claimed against the Government. He has observed so at the very commencement of his reasoning. He has also referred to Sec. 6 and 17 of the madras Forest Act. According to him, a Notification was produced by the learned Government Advocate before him, wherein the right of the plaintiffs was not reserved, only the right of one Govinda Bhat of karvashe Kasba village was mentioned in the Notification and as such the learned Civil Judge thinks that the plaintiffs' alleged right was disproved, and he further thinks that since the right of the plaintiffs was not mentioned in the Notification the rights, if any have been extinguished by Section 6 of the Madras Forest Act. ( 13 ) IT may at once be stated that the plaintiffs have not claimed any rights by grant, on the other hand, they are claiming their right having acquired it by prescription by limitation under S. 25 of the Limitation act read with S. 15 of the Indian easements Act. Such rights are not contemplated to be mentioned in the notification issued under S. 6. Such right is claimed against the Government by open continuous peaceful enjoyment of the right for the statutory period, earlier for 60 years, now for 30 years after the new Limitation act 1963 came into force. The learned civil Judge has ignored that point. Ths learned Civil Judge has wrongly referred to the case of Venkatasami v. Chenna Reddy (1 ). The proposition that any prescriptive right cannot be acquired against the Government is erroneous. That being so, it is obvious that the very approach of the learned Civil Judge to the facts of the case is legally erroneous and his appreciation of the evidence is vitiated. Hence, it becomes necessary to allow the appeal. ( 14 ) IN the result, the appeal is allowed. The judgment and decree of the learned Civil Judge are set aside and the appeal is remitted back to the first appellate Court, the Civil Judge Udupi, with a direction that the learned Civil judge shall now proceed to appreciate the evidence in the light of the observations made above and then dispose of the appeal expeditiously after hearing the arguments of the parties in accordance with law. ( 15 ) THE parties are directed to appear before the Civil Judge, udupi, on 24. 1. 83 to take further instructions in the matter. Send back the concerned records to the first appellate court forthwith. No costs in this appeal. --- *** --- .