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2004 DIGILAW 302 (JK)

Gh. Mohd. Numberdar v. Mohd. Bhat

2004-10-26

S.N.JHA

body2004
This second appeal by the plaintiffs is directed against the judgement of reversal. The trial court decreed the suit, the lower appellate court set aside the judgement and dismissed the suit. The plaintiffs filed the suit in representative capacity in terms of order 1 rule 8 of the Civil Procedure Code claiming to represent the interests of inhabitants of 101 villages, compendiously described as Khulwalas, against the inhabitants of 25 villages described as Arahwalas, in Tehsil Budgam represented by defendants 1to 25. Later defendants 27 to 62 were added in view of the dispute raised by the Arahwalas regarding the number of villages on their side. The State Government through Chief Secretary/Commissioner was impleaded as defendant no.26. The suit was for declaration that the plaintiffs alone are entitled to the water of Nalla Shaliganga and its four distributaries, namely, Lani, Jani, Sonmai and Naukul khuls in Tehsil Budgam in which defendants have no right, and for permanent injunction against the defendants that they should not in any way interfere with the exclusive enjoyment of water of the said Khuls by the plaintiffs, and effect cuts or other outlets in these Khuls for irrigating their lands. The case of the appellants is that the Khulwalas own 92,274 Kanals of irrigated land in their respective villages as per details in appendix `A while the Arahwalas, own 17,922 Kanals of irrigated land in their respective villages as detailed in appendix `B. The lands of the appellants villages are irrigated by Shaliganga and its four distributaries i.e. Lani, Jani, Sonmai and Naukul and they have been exclusively using its water since time immemorial. These lands are uneven, slopey and stony and, as such, require more water for irrigation. The lands of the respondent villages are irrigated mainly by spring water from the springs detailed in appendix `C as well as seepage water leaking from the aforementioned Khuls due to uneven terrain through which the Khuls pass. The water form these springs is so abundant that besides irrigating the lands of the respondents villages, they help more than 100 rice husking mills and Ghandars run round the year. The land in the respondents villages being even and soft, they convert some of their khushki lands into abi-lands and in this manner they need ever increasing quantity of water for irrigated and non-irrigated lands. The land in the respondents villages being even and soft, they convert some of their khushki lands into abi-lands and in this manner they need ever increasing quantity of water for irrigated and non-irrigated lands. Since some time past, the respondents were trying to appropriate water form Shaliganga and its distributaries by making cuts and outlets. The revenue authorities on misrepresentation of facts by the Arahwalas took a decision regarding distribution of water of these Khuls between the appellants and respondents. However, the decision was never acted upon and Khulwalas continued to enjoy the water of these Khuls exclusively. In the current year (2010 BK = 1953 AD, when the suit was filed) on account of drought the water supply fell down. The Arahwalas illegally made cuts at various places of the Khuls and tried to forcibly take water for irrigating their lands giving rise to apprehension of breach of peace and creating a cloud over the rights of Khulwalas to the exclusive use of water of the Khuls. It is relevant to mention here that the dispute arose between the parties in the year 1930 which was referred to the Governor for arbitration under section 132 of the Land Revenue Regulation, 1980 (1923 AD). The Governor appointed two assessors, namely, Ghulam Nabi representing the Khulwalas, and Zaffar Mir representing Arahwalas. The assessors gave conflicting opinion. According to Ghulam Nabi, Khulwalas should be allowed water for five days and five nights while Arahwalas should get water for one day and one night. According to Zaffar Mir, on the other hand, Khulwalas should get water for two days and two nights and Arahwalas should get water for one day and one night. In view of the conflicting opinion, the Governor sought opinion from the Tehsildar. The Tehsildar took the view that Khulwalas should get water for three days and three nights and Arahwalas should get water for one day and one night. Disagreeing with the opinion of the Tehsildar, the Governor referred the matter to the Irrigation Tehsildar, Kh. Salam Shah, who agreed with the Tehsildar. The finding was accepted by the Governor and he accordingly gave his award sometime in the month of Sawan 1991 BK corresponding to July 1934. The award of the Governor was challenged before the Revenue Member/Minister. Disagreeing with the opinion of the Tehsildar, the Governor referred the matter to the Irrigation Tehsildar, Kh. Salam Shah, who agreed with the Tehsildar. The finding was accepted by the Governor and he accordingly gave his award sometime in the month of Sawan 1991 BK corresponding to July 1934. The award of the Governor was challenged before the Revenue Member/Minister. On 27th July 1935, the Revenue Minister affirmed that award of the Governor observing "we should stick to that decision unless the party aggrieved goes to a civil court and proves that the custom is different". The decision of the Revenue Minister was challenged before the Maharaja. Vide decision dated 22nd February, 1938, the Maharaja declined to interfere. The Khulwalas filed petition for review which was dismissed by order dated 12th August, 1938. The matter remained dormant until 1953 when the aforementioned suit was filed in the court of Senior Subordinate Judge, Kashmir at Srinagar after serving notice under section 80 of the Code of Civil Procedure. `In the written statement, the Arahwalas challenged the details of villages represented by Khulwalas and Arahwalas. (This led to amendment and addition of defendant nos. 27 to 67). They also challenged the area of their respective possession. According to them, the number of villages represented by Khulwalas was mushless than 101 and those represented by Arahwalas is much more than 25 as averred in the plaint and described in the appendices. The Khulwalas owned lands totaling only 74,683 Kanals while Arahwalas owned lands measuring 68,754 Kanals. They claimed that Khulwalas and Arahwalas were appropriating water from Shaliganga and its four distributaries in equal shares since ancient times and there was no justification for unequal distribution. They referred to the decisions of the revenue authorities, including the minister and the Maharaja, the details of which were conspicuously missing in the plaint. Though they were using the water of Shaliganga and its distributaries in equal shares since ancient times, in order to put an end to the dispute they had accepted the verdict and thus started appropriating water in the manner decided by the authorities i.e. for one day and one night as against appropriation of water for three days and three nights by Khulwalas since 1995 BK i.e. 1938 without interruption from the other side till date. On the basis of the pleadings, the trial court framed as many as twelve issues. On the basis of the pleadings, the trial court framed as many as twelve issues. The issues relevant for disposal of this appeal are: (5). Whether the Khulwalas and Arahwalas have been using the water of Shaliganga Khuls and its distributaries equally? (6) Are the lands of Arahwalas irrigated by spring water and seepage water of Shaliganga and its distributaries? (7) What is the judgment of the revenue officials regarding distribution of water and how this had affected the present suit? (8) Has the judgment of the revenue officials been acted upon? If so, how and when? (9) Are the plaintiffs exclusively entitled to the use of water of Shaliganga and its distributaries? (10) Is not the civil court competent to decide this suit between the parties? Issue No. 5 was decided against the defendants observing that there was no entry in the revenue records wherefrom it could be concluded that the water of Shaliganga and its distributaries was being used by the parties in equal shares. As regards issue no. 6, it was held that there was no clear proof in the records on the basis of which it could be concluded that Shaliganga or its four distributaries irrigated the lands of Arahwalas. On the contrary, there were materials wherefrom it could be concluded that the lands of Arahwalas got irrigated by the seepage water of Shaliganga and its distributaries and thus the issue was decided in favour of the plaintiffs. Issue nos.7 and 8 were also decided in favour of the plaintiffs holding that the decisions of the revenue officials were without jurisdiction and so was the opinion of the arbitrator/assessors because the questions did not fall within the purview of section 39 of the Land Revenue Act. They could be adjudicated upon only by the civil courts in terms of section 9 of the Code of Civil Procedure and section 7 of the Easements Act. Neither the decision of the revenue officials nor the opinion of the arbitrator was ever acted upon and there was no entry in the revenue records about the same. Issue no.10 regarding competence of the civil court to decide the suit was also decided in favour of the plaintiffs. Neither the decision of the revenue officials nor the opinion of the arbitrator was ever acted upon and there was no entry in the revenue records about the same. Issue no.10 regarding competence of the civil court to decide the suit was also decided in favour of the plaintiffs. On to the core issue regarding exclusivity of the appellants right to use the water of Shaliganga and its four distributaries vide issue no.9, the trial court held that through some of the respondents witnesses had stated that some waste water here and there appropriated by Arahwalas also, none of them had controverted the claim of exclusive appropriation of water by the Khulwalas, and thus decided the issue in favour of the plaintiffs. On the basis of these findings the trial court decreed the appellants suit on 21st September 1964. On appeal by the Arahwalas, the appellate court observed that there was no dispute that the lands of Khulwalas were irrigated by the water of Shaliganga and its distributaries. What is in dispute is their exclusive right to water. After referring to the evidence of some of the Patwaries, who were examined as witnesses on either side, and perusal of the records, the appellate court held that a considerable area of villages inhabited by Arahwalas had been getting water from Shaliganga and its distributaries for irrigation purposes since 1976 BK (1919 AD) and entries in the revenue records controverted the stand of Khulwalas that Arahwalas never got any water from the disputed streams. The appellate court went into the genesis of the dispute dating back to Hijri year 1227 i.e. about 160 years ago. General Hukuma Singh vide his order dated 10th Sawan, 1227 Hijri informed Arif Ali, Kanungo of Pargana Dandso (represented by Khulwalas) that they had stopped flow of water to Pargana Icchigam (represented by Arahwalas) IIIaqa of Dewa Hardas resulting in drying up of the lands of Icchigam. He was directed to restore the water supply as per the old practice. Report of the then Tehsildar Budgam, R.C. Razdan, referred to another order of Atta Mohd Khan issued in Sawan 1227 Hijri directing Wazir Janki Nath to allow flow of water to Pargana Icchigam in keeping with old practice. He was directed to restore the water supply as per the old practice. Report of the then Tehsildar Budgam, R.C. Razdan, referred to another order of Atta Mohd Khan issued in Sawan 1227 Hijri directing Wazir Janki Nath to allow flow of water to Pargana Icchigam in keeping with old practice. On the basis of references contained in the report of R.C. Razdan, the appellate court came to the conclusion that Arahwalas had been using water of Shaliganga and its distributaries for the purpose of irrigating their lands since long. Having recorded these findings, negativing the Khulwalas claim of exclusivity, the appellate court considered the question as to whether water of the rivers and streams can be exclusively claimed to the exclusion of others. The court held that it is sovereign right of the state to regulate distribution of water of the rivers and natural streams and channels. It observed that a citizen any acquire, by prescription, proprietary rights but no easement can be acquired against the sovereign. The appellate court further held that the decision of the revenue authorities upheld by the Maharaja cannot be called in question in civil courts. The decision of the Maharaja has the force of law which is not justiciable in the civil court. Shri M.A. Qayoom learned counsel for the appellants i.e. Khulwalas submitted that the finding regarding distribution of water of rivers and natural streams being sovereign function of the State is beyond the pleadings and in any case appellate court committed error in holding that the decisions of the revenue authorities and the Maharaja are not justiciable. As a matter of fact the decision of the Revenue Minister permitted the appellants to approach the civil court and seek cancellation of the decision on the basis of custom. In any view, it was open to the appellants to approach the civil court and seek declaration of their rights. Under section 9 of the Code of Civil Procedure a person can file suit in respect of any type of dispute of civil nature unless the suit is expressly or impliedly barred by some law. Section 139 of the Jammu and Kashmir Land Revenue Act, 1996 B.K. (1939 AD) excludes the jurisdictions of civil court with respect to matters specified therein. The suit of the present nature does not find mention therein. No such issue in fact was framed. Section 139 of the Jammu and Kashmir Land Revenue Act, 1996 B.K. (1939 AD) excludes the jurisdictions of civil court with respect to matters specified therein. The suit of the present nature does not find mention therein. No such issue in fact was framed. Counsel submitted that the appellants had approached the court seeking declaration of their customary right to exclusive use of water of the Shaliganga and its distributaries. The appellants do not wish to obstruct utilization of over flowing water by the Arahwalas but they cannot interfere with the appellants rights by effecting cuts and breaches to appropriate the water. The appellate court, it was submitted, failed to appreciate the appellants case in correct perspectives. Shri Qayoom further submitted that impugned decision of the revenue authorities remained a piece of paper and was never acted upon. In 1953 when there was less rainfall the respondents started interfering with the appellants exclusive utilization of water. It was pointed out that even the respondents do not seem to accept the decision as in their written statement they did not take the plea of sharing of water as per the decision. They rather claimed equal right to utilize water half and half. Shri Qayoom also submitted that the appellate judgement is fit to be set aside on a short point that the appellate court did not consider the oral or documentary evidence on record and without assigning reasons reversed the findings of the trial court. The judgement, therefore, cannot be said to be in accordance with law. He referred to Madhukar v. Sangram, 2001 (4) SCC 756. On merit, counsel further submitted that the appellate court committed error in relying on Wasila Abpashi (source of irrigation) but not Riwaj-i-Abpashi (custom of irrigation) which is a relevant document and admissible as evidence under section 35 of the Evidence Act vide Haji Ahad Pandit v. Mahda Khan, 1974 JKLR 462. Lastly, it was submitted that as per section 100 of the J&K Code of Civil Procedure 1977 (1920 AD), as it then stood prior to amendment in 1983 in cases of reversal of trial courts judgement by the appellate court, the High Court is required to consider evidence in the case. This court should therefore re-appraise the evidence on record and then record finding on all the issues including issues of fact. This court should therefore re-appraise the evidence on record and then record finding on all the issues including issues of fact. Shri Z.A. Shah learned counsel for the respondents i.e. Arahwalas submitted that the appellants cannot claim exclusivity of right in the matter of appropriation of water of rivers and natural streams either as an easement or on the basis of custom. The plaintiffs are an indeterminate fluctuating body comprising of local inhabitants and easement can be claimed only by an individual or individuals. He relied on Parbhawati Devi v. Mahendra Naraian Singh, AIR 1981 Patna 133. Shri Shah pointed out that in terms of section 2(b) of the J&K Easements Act, nothing contained in the Act affects the right of the government to collect, retain and distribute water in streams. The collection, retention and distribution of water in natural streams is sovereign function and right of the state which cannot be curtailed. It is only the proprietary right which can be curtailed by prescription, and hence it cannot be subject of customary right either. In support of his submissions counsel placed reliance on Secretary of State V.P.S. Nageshwar Iyer, AIR 1936 Madras 923, Lakshmidhar Misra v. Rangalal, AIR 1950 Privy Council 56, Ramsewak Kazi v. Ramgir Choudhary, AIR 1954, Patna 320 and State of Madras v. S.K.S.O. Muhammad Ghani Tharoganar, AIR 1959 Madras 464. The crux of the dispute, it would appear, lies in the question as to whether inhabitants of the riparian villages can claim exclusive right in the use and appropriation of flowing water of the rivers and natural streams. It is true that the question whether the right to collect, retain and distribute water of the rivers and natural streams is sovereign function of the state or not was not gone into by the trial court. The suit was decided as an ordinary run-of-the-mill civil suit on the basis of evidence adduced by the parties, mostly oral evidence of the local Patwaries who spoke about their respective segment. The larger issue as to whether a group of persons being residents of villages abutting the rivers and natural streams can claim exclusive right of use the water in law at all, was not gone into. The respondents apparently were not correctly advised to take such a plea and no issue was framed. The larger issue as to whether a group of persons being residents of villages abutting the rivers and natural streams can claim exclusive right of use the water in law at all, was not gone into. The respondents apparently were not correctly advised to take such a plea and no issue was framed. However, it is well known that the plaintiff can succeed on the strength of his own case and not on the weakness of the case set up by the defendant. Even if the respondents did not take such a plea, the court was/is not precluded from going into the question which goes to the root of the appellants entitlement. The findings on the issues apart, the court has to finally decide as to what relief/ reliefs the plaintiff is entitled to. No error in the circumstances can be found with the findings of the appellate court regarding sovereign right of the state in the distribution of water in the rivers and natural streams on the ground that it was not part of the pleadings of the respondents or an issue in the suit. The relevance of the issue cannot be doubted. The question is whether the finding is in accordance with law or not. Before considering the correctness of the findings I may deal with the finding about the nature of he decisions of the revenue authorities and the Maharaja. The dispute, as seen above, was dealt under the provisions of the Land Revenue Regulation, 1980 BK = 1923 AD. It was initially referred to the Governor as Chief Revenue Officer who referred it to Ghulam Nabi and Zaffar Mir for arbitration under section 132 of the Regulation. The ultimate decision of the Governor was challenged before the Revenue Minister/Member. After the Revenue Minister gave his decision the dispute was taken to the Maharaja by way of appeal. The question is what was the nature of decision of the Maharaja. Whether it was a `law which could not be challenged in an ordinary court of law. I have looked into the Land Revenue Regulation. Chapter VII contained provisions relating to arbitration. Section 140(1) provides that the Revenue Officer may accept, modify or reject the award. Section 6 provided the hierarchy of Revenue Officers which included Revenue Member (at the helm) and Governor. I have looked into the Land Revenue Regulation. Chapter VII contained provisions relating to arbitration. Section 140(1) provides that the Revenue Officer may accept, modify or reject the award. Section 6 provided the hierarchy of Revenue Officers which included Revenue Member (at the helm) and Governor. Section 11(1) of the Regulation provided for appeal from an original or appellate order made under the Regulation by a Revenue Officer. As per the table, appeal from the original/appellate order of the Governor lay to the Revenue Member and appeal from the original or appellate order of the Revenue Member lay to the Maharaja. Section 140(2) provided for appeal against the decision of the Revenue Officer under sub-section (I), accepting, modifying or rejecting the award-referred to above-"as if arbitrator had not been appointed." In Ameer-un-Nizam Begum v. Mehboob Begum, AIR 1955 SC 352, decision relied upon by the appellate court, it was held that Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority to act in any these capacities. This observation was made while considering the legal effect of farman promulgated by the Nizam in the context of dispute as to whether revocation of one farman resulted in revival of the previous farman. A Constitution bench of the Supreme Court explained the judgement in Union of India v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., AIR 1964 SC 1903 in these words: "Whenever a dispute arises as to whether an order passed by an absolute monarch amounts to law, all relevant factors should be taken into consideration such as nature of the order, the scope and effect of its provisions, its general setting and context, the method adopted by the Ruler in promulgation legislative as distinguished from executive orders. Whether a particular order of a Ruler continues under Article 372 as a law the jurisprudential distinction between legislative, judicial and executive acts must always be kept in mind and only those orders of the Ruler which are jurisprudentially legislative acts will continue as laws under Article 372 of the Constitution." As seen above, in the instant case, decision of the Maharaja was on appeal under a Regulation which had the force of statute and therefore statutory in character while deciding a dispute between two parties. The decision undoubtedly was the last word so far as the dispute was concerned. But it cannot be said to be a sovereign act amounting to `law so as to be non-justiciable in a court of law in the absence of any bar express or implied. The civil courts under section 9 of the Code of Civil Procedure have jurisdiction to try all suits of civil nature unless barred expressly or impliedly. It cannot therefore be said that the suit was not maintainable. It is also to be kept in mind that the Revenue Minister in his decision dated 27-7-1935 had given liberty to the appellants to approach the civil and prove that the custom is different. In other words he gave liberty to the appellants to file civil suit and challenge the decision. The finding of the lower appellate court in this regard, therefore, does not appear to be in accordance with law. The question, however, is whether the plaintiffs were entitled to declaration from the civil court that they are exclusively entitled to utilize water of the Shaliganga and its four distributaries and the respondents have no share in it. The following observations in Re: Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96, appear to provide a complete answer to the question. It is relevant to point out that the observations were made in the context of inter-State water dispute on a reference by the President of India under Article 143 of the Constitution of India. But though the context was `inter-state water dispute, the principle would govern intra-State water dispute as well. The relevant observations are: - "Though the waters of an inter-State river pass through the territories of the riparian States such waters can not be said to be located in any one State. They are in a state of flow and no State can claim exclusive ownership of such waters so as to deprive the other States of their equitable share. Hence in respect of such waters, no state can effectively legislate for the use of such waters since its legislative power does not extend beyond its territories. It is further an acknowledged principal of distribution and allocation of waters between the riparian States that the same has to be done on the basis of the equitable share of each State. Hence in respect of such waters, no state can effectively legislate for the use of such waters since its legislative power does not extend beyond its territories. It is further an acknowledged principal of distribution and allocation of waters between the riparian States that the same has to be done on the basis of the equitable share of each State. What the equitable share will be will depend upon the facts of each case. It is against the background of these principles and the provisions of law we have already discussed that we have to examine the respective contentions of the parties." The above observations were preceded by extracts from two decisions of the Supreme Court of United States and it would be useful to notice them as under: -- " The right to the use of flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such character that, whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it, as it passes through his land, and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it can not be said to be wrongful or injurious to a proprietor lower down." " The right to the use of flowing water is publici juris, and common to all the riparian proprietors; it is not an absolute and exclusive right to all the water flowing past their land, so that any obstruction would give a cause of action; but it is a right to the flow and enjoyment of the water, subject to a similar right in all the proprietors, to the reasonable, enjoyment of the same gift of Providence. It is, therefore, only for and abstraction and deprivation of this common benefit, or for an unreasonable and unauthorized use of it that an action will lie." If a riparian State can not exclusively claim water flowing in rivers across the state to the exclusion of lower riparian states, I fail to understand as to how the lower riparian villages within the same state can be denied the right to use water of rivers and nature streams. Rivers/ streams are natural resource -- a gift of the nature and no person or group of persons can claim exclusivity to it simply because they are more advantageously placed. When a dispute arises in this regard, it becomes the function, nay, duty of the state to make equitable distribution by allocation water between the contending villagers. What will be their respective share will depend on the facts and circumstances guided by considerations of equity and reasonableness. In the instant case, after considering claims of the parties at different levels, the Governor as Chief Revenue Officer decided that the appellants would get water for three days and three nights and the respondents would get water for one day and one night. The decision was in recognition of better claim of the appellants. It was a decision which appeared to be just and proper not only to the Governor on the basis or the reports and opinion of the Arbitrators, Tehsildar and Irrigation Tehsildar but also the Revenue Minister and, finally, the Maharaja who did not interfere in the matter. The appellants also did not challenge the decision for 15 years. Apparently, the parties shared water of the Shaliganga and its distributaries in the manner decided by the authorities during this period until dispute again arose and the appellants filed the instant suit claiming exclusive right of user. In Ramsewak Kazi v. Ramgir Choudhary, AIR 1954 Patna 320, riparian land was defined as land on the bank of a stream extending to a reasonable depth inland and it was held that the natural rights to the use of water of a natural stream does not depend upon a grant or upon the ownership of the soil of the stream, but are `jure nature incident to the ownership of the soil of the land abutting the stream. Each riparian owner has the right to use the water of a natural stream provided he does not interfere with the quantity or the quality of water to which the proprietors below are entitled. An upper riparian owner can take only so much or water of the stream as can be abstracted with-out diminishing the quantity to which the proprietors below are ordinarily entitled and upper riparian owner has no right whatsoever to cause any prejudice to the proprietors below who have the natural right to use the water of the stream for irrigational purposes. If such water owner causes obstruction to the free flow of water in the stream, the remedy of the proprietors below is by way of a suit for injunction and damages. Mr. Qayoom submitted that the plaintiffs do not deny the riparian rights of the Arahwalas, if any. What the Arahwalas did was that they effected cuts and breaches in the stream, and thereby appropriate water. Counsel submitted that the plaintiffs had approached the court for enforcement of their customary rights for the question of riparian rights of the lower riparian villages is not involved in the case. The submission that the Arahwalas i.e. defendants were effecting cuts and braches to enable them to divert flowing water of Shaliganga or its distributaries was not an issue in the suit and no finding was returned in plaintiffs favour even by the trial court. The plaintiffs suit in essence and substance was for declaration of exclusive rights to use water of the river and its distributaries on the basis of custom. They also claimed to have acquired right by prescription. In Secretary of State v. P.S.Nageswar lyer, AIR 1936 Madras 923, it was held that the relationship between the plaintiff and defendant no.1 i.e. Secretary of State precluded any claim based on prescription and though plaintiffs were entitled to the accustomed supply of water for irrigation of their lands, yet they can not acquire any exclusive right to the detriment of the paramount right of Secretary of State to regulate and control all supply of water in public streams and channels. Dwelling upon the nature of customary right and prescriptive right, the Court observed that though there are some common factors, there is a fundamental difference between the two. Dwelling upon the nature of customary right and prescriptive right, the Court observed that though there are some common factors, there is a fundamental difference between the two. The customary right might give the plaintiffs all they really wanted but it may not give them and exclusive right to all the waters of the channel to the extent of preventing Government from using the water of the channel for other purpose even without prejudice to the plaintiffs accustomed user. Prescriptive might in certain circumstances support a claim of exclusive right, though the extent of a prescriptive right must generally be measured with reference to the user made by the claimant and not with reference to the mere flow in the channel. The Court further observed: ". A right may by prescription to water in channel can be acquired as against the proprietary right of another, but not as against the sovereign right, which under the Indian Law the State possesses to regulate the supply of water in public streams so as to utilize it to the best advantage." In the aforesaid case, the plaintiffs had brought a suit claiming exclusive right to all the waters flowing in a particular channel on the basis of customary right and also on the basis of prescription. From the above observations, it is clear that the custom cannot confer exclusive right to the detriment of state. Prescriptive right may confer exclusive right but vis-a-vis only proprietary right of another and not the state. The state in any case in empowered to regulate and control the supply of water in public streams and channels. On behalf of the respondents attention was drawn to the Canal and Drainage Act 1963 (1906 AD) which empowers the Government to regulate the water of any river or steam flowing in nature channel etc. for public purposes and it was submitted that right of the individuals to use of water of any river or natural stream etc. is subject to paramount right of the State to regulate the use, otherwise in public interest. On behalf of the appellants reference was made to section 7 of the Easement Act 1977 (1920 AD) -- particularly clauses (f) to (j). is subject to paramount right of the State to regulate the use, otherwise in public interest. On behalf of the appellants reference was made to section 7 of the Easement Act 1977 (1920 AD) -- particularly clauses (f) to (j). These clauses are illustrations of the easementary rights which the Act defines to mean "exclusive right of every owner of immovable property subject to any law for the time being in force to enjoy and dispose of the same and all products thereof, and accessions thereof and further to enjoy without disturbances by another the natural advantages arising from its situation." The submission based on Easementary rights in my opinion, is totally misconceived in view of the saving clause appended to section 2 of the Act which provides: - "Nothing herein contained i.e. the Act 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 of 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 expense for irrigation. (b) Any customary or other right not being a licence in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property. (c) ......" From a bare reading of the above provision, it is clear that the easementary rights under section 7 of the Easement Act are subject to the right of the Government to regulate collection, retention and distribution of water of the rivers and streams flowing in natural channels and also, any customary or other right (not being that of a licence) in or over immovable property which the Government, the public or any person may possess. The appellants, therefore, cannot claim any exclusivity to the user of the water of the Shaliganga and its distributaries as an easement to the extent of curtailment of rights of the respondents in particular the right of the State to regulate its distribution. The decision of the Governor affirmed by the Revenue Minister and finally by the Maharaja, therefore, it would follow, was in accordance with the general principles and statutory provisions. The decision of the Governor affirmed by the Revenue Minister and finally by the Maharaja, therefore, it would follow, was in accordance with the general principles and statutory provisions. The appellants, approached the court claiming that they were exclusively using water of the Shaliganga and its distributaries since time immemorial. As rightly submitted on behalf of the respondents, the evidence on record rather suggests that being inhabitants of riparian villages, respondents also were getting water from Shaliganga or its distributaries, which means that were owners of the riparian rights. Reference was made to the evidence of Ahad Dar and S. Dewan Singh examined on behalf of the appellants who had stated that Shaliganga and its distributaries are natural streams flowing down from mountainous places. Reference was also made to the evidence of Aziz Mir, Mohammad Parray and Gaffar Kuchay who stated about irrigation of their lands by the water of Shaliganga and its distributaries. Evidence on record does not seem to lend any assistance to the appellants case of any custom regarding exclusive use of water of the river and its distributaries. In Lakshmidhar Misra v. Rangalal, AIR (37) the Privy Council observed that a customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large. What is required of a custom, if it is to be upheld as a right, is that it should be immemorial in origin, certain and reasonable in nature and continuous in use. On whatever grounds the right to exclusive use of the water of Shaliganga and its distributaries may be claimed -- base on custom, easement or prescription, basically, the dispute revolves around the riparian rights of two sets of villages. The dispute as raised in the instant case does not relate to apportionment or sharing of water. Decision to this effect had already been taken by the authorities of the State which held the ground for fifteen years. The appellants superior claim vis--vis that of the respondents was recognized. That is how they were allowed to use water for 3 days and 3 nights against respondents who were allowed to use for only one day and one night. The suit was brought claiming exclusive right to the exclusion of the respondents. The appellants superior claim vis--vis that of the respondents was recognized. That is how they were allowed to use water for 3 days and 3 nights against respondents who were allowed to use for only one day and one night. The suit was brought claiming exclusive right to the exclusion of the respondents. Neither the appellants can deny the rights of the respondents to use water except to the extent required by them, being owners of upper riparian rights, nor can they deny right of the state to regulate and distribute the water and thus regulate its user. The decision of the State authorities was taken for public good after considering the claims of both sides. The decision was based upon consideration of materials produced by the parties. The decision apparently worked well for fifteen years. There was hardly any justification to approach the court re-agitating the old dispute and in the process, virtually seeking to challenge the correctness of the said decision. In my opinion, both on general principles and on facts, the appellants were not entitled to any relief. The judgement and decree of the lower appellate court dismissing the suit, therefore, does not warrant any interference. In the result, the appeal is dismissed but without any order as to costs.