JUDGMENT : The defendants in O.S.No.183/2004 on the file of the Munsiff's Court, Nadapuram are the appellants. The plaintiff is the respondent. 2. The plaintiff and defendants are adjacent property owners on the two sides of a water channel. The property of the plaintiff lies on the north of the stream, and the properties of the defendants lie on the south of the water channel. 3. The plaintiff's case is that the defendants constructed a bund across the water channel in such a way as to stagnate water, causing the same to flow to the plaintiff's property, leading to waterlogging and damage to the improvements made in the property. 4. Therefore, the plaintiff prayed for a mandatory injunction directing the defendants to dismantle the bund. The plaintiff also prayed for a permanent prohibitory injunction restraining the defendants from putting bund across the channel. 5. The defendants resisted the claim, contending that they have the right to extract water from the channel, which is a natural stream. According to the defendants, when there was scarcity of water in summer, they would divert water to their property for percolation to the well and the pond in their property. The bund put up across the channel is not a new one, as alleged by the plaintiff. It is more than 50 years old. Defendants pleaded that they have the right to extract water from the channel as riparian owners. The defendants claimed that the allegation that the bund caused water stagnation, resulting in waterlogging, is baseless. 6. The parties went to trial. The evidence consists of oral evidence of PWs 1 and 2, and DWs 1 and 2. Exts.A1 to A3 were marked on the side of the plaintiff, and Exts.C1 and C2 were marked as Court Exhibits. 7. The Trial Court decreed the suit directing the defendants by way of a mandatory injunction to demolish the bund constructed across the water channel. 8. The defendants challenged the decree and judgment passed by the Trial Court in A.S.No.51/2005 before the Additional District Court, Vadakara. The First Appellate Court confirmed the decree and judgment passed by the Trial Court. 9. The defendants are in appeal under Section 100 of the CPC. 10. 8. The defendants challenged the decree and judgment passed by the Trial Court in A.S.No.51/2005 before the Additional District Court, Vadakara. The First Appellate Court confirmed the decree and judgment passed by the Trial Court. 9. The defendants are in appeal under Section 100 of the CPC. 10. On 19.07.2007, this Court admitted the appeal on the following substantial question of law :- “Whether on the evidence Courts below were justified in granting a decree of mandatory injunction in the absence of sufficient evidence to prove that the bund constructed, which was directed to be removed causes damages to the property of the respondent, where appellants have a right to extract water being the riparian owners.” 11. Heard Sri. M.V.S. Nampoothiry, the learned counsel appearing for the appellants/defendants and Sri.Parthasarathy, the learned counsel appearing for the respondent/plaintiff. 12. The plaintiff and defendants are the property owners on the two sides of a natural stream. The case of the plaintiff is that the defendants constructed a bund across the channel in such a manner obstructing and diverting the natural flow of the water channel. 13. The defendants' challenge is that the bund found across the channel is 50 years old, and they have the right to divert the water from the natural stream for percolation to the well and pond in their property. 14. The subject matter in this litigation deals with “riparian rights”, which refer to rights of proprietors of land on the banks of streams, arising, not from the ownership of the bed over which the water flows, but from the right of access which such proprietors have to the water. 15. In the present case, the water channel involved is natural. The parties have no case that they have acquired any right of easement regarding the water channel. What is claimed is a natural right. The plaintiff and defendants have similar rights over the natural stream. 16. In the Indian Easements Act, 1882, the rights of a riparian owner of immovable property to enjoy without disturbance by another the natural advantages arising from its situation are dealt with in Sub-section (b) of Section 7 read with illustration (j). What is claimed is a natural right. The plaintiff and defendants have similar rights over the natural stream. 16. In the Indian Easements Act, 1882, the rights of a riparian owner of immovable property to enjoy without disturbance by another the natural advantages arising from its situation are dealt with in Sub-section (b) of Section 7 read with illustration (j). Section 7 reads thus:- “7.Easements restrictive of certain rights.-Easements are restrictions of one or other of the following rights (namely)- (a) Exclusive right to enjoy -The 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 thereto. (b) Rights to advantages arising from situation.-The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.” 17. Section 7(b) of the Indian Easements Act recognises the right of every owner of immovable property to enjoy, without disturbance by another, the natural advantages arising from its situation subject to any law for the time being in force. One of the natural advantages that are enjoyed by an owner of a property which is situated adjoining a stream is to exploit the water of the stream for his own purposes subject to the limitations prescribed in the statute. Illustration (j) in Section 7 refers to the limitations in this regard. Illustration (j) runs as follows: "(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 does 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 land or underground, which flows by the operation of nature only and in a natural and known course." 18. A survey of the English Law on the subject is profitable. 19. Explanation.-A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course." 18. A survey of the English Law on the subject is profitable. 19. In Coulson and Forbes on The LAW OF WATERS, (6th Edition, Page 129), the learned author, on riparian rights comments thus:- “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.” 20. In Mr.Chancellor Kent's Commentaries (Vol. 3, Leet. 52, Pages 439, 445 and 544), the learned author comments thus:- “A proprietor of lands has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat is the language of the law. Though he may use the water while it runs over his land, as an incident to the land, he cannot unreasonably retain or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back on the proprietors above, without a grant, or an uninterrupted enjoyment of 20 years, which is evidence of it.” 21. In George Chasemore v. Henry Richards (VII HLC 1859, Page 358), it was held that the owner or occupier of the land has the right to take the water flowing through it to a reasonable extent, and for purposes connected with the land through which it flows, but not otherwise. 22. In Harlow Miner v. Francis Gilmour, [(1858) XII Moore, P.C. 131, (14 E.R. 861)], the right of a riparian proprietor is explained thus: “Every riparian proprietor has a right to the reasonable use of the water flowing past his land, namely, 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. He has, also, the right to the use of the water for any other purpose, provided he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, a riparian proprietor 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.” 23. In Sampson v. Hoddinott [C.B. (N.S.) 590], it was held thus: “Every proprietor of lands on the banks of a natural stream has a right to use the water, provided he so uses it as not to work any material injury to the rights of the proprietors above or below him on the stream, and may begin to exercise that right whenever he will.” 24. In Rameshur Pershad Narain Singh v. Koonj Behari Pattuk and Another [18 L.J.(Ex.) 305], the Privy council held thus:- “The right to 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 water course 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.” 25. In Embrey v. Owen (6 EX. 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.” 25. In Embrey v. Owen (6 EX. 353), it was held thus:- “Flowing water is publici 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.” 26. In Bickett v. Morris [1866 L.R. 1 Sc App. 47] the House of Lords held that, where the two sides of a stream belong to different proprietors the presumption is that the ownership of each extends usque ad medium filum aquae. 27. In Bickett v. Morris (supra), the following principles were deduced:- (a) Neither of two opposite riparian proprietors is entitled to use the stream or river in such a way as to interfere with its natural flow. (b) He cannot even protect his land from inundation if the means employed for such protection causes actual injury to the property of the opposite proprietor. (c) An obstruction to the current of a stream is an injury of which the Courts will take notice even though immediate damage cannot be described or actual loss predicated. 28. In the former part of illustration (j) of Section 7 of the Indian Easements Act, the primary use is referred to. There is no limitation in the matter of primary use. In the latter part of the illustration, the secondary use is dealt with. The secondary use is subject to the limitation that no material injury to other like owners be caused. What exactly would be a material injury to other riparian owners is a question of fact. There is no limitation in the matter of primary use. In the latter part of the illustration, the secondary use is dealt with. The secondary use is subject to the limitation that no material injury to other like owners be caused. What exactly would be a material injury to other riparian owners is a question of fact. Material injury will be caused to other riparian owners if their right to protect their land is adversely affected. It would be materially affected if there is perceptible diminution in the supply of water to them. 29. The learned author, B.B.Katiyar, in his book, the Law of Easements and Licences (15th Edition, Page No.159), on the enjoyment of natural rights accruing from its situation, writes thus :- “Therefore, in the name of enjoying the natural rights accruing from its situation, an owner of one property cannot subject his neighbour to a disability, now or in future, by which the latter will be prevented from enjoying the natural rights flowing from the situation of his own property. Therefore, natural rights which a person enjoys in an orderly human society are such as are reconcilable with those of others and do not disturb the rights of others.” 30. In Rama Bhatta and Others v. Krishna Bhatta and Others [1962 KHC 263], this Court held 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. 31. In M.Kanna and Others v T. Chathu and Another [ 1970 KLT 124 ], this Court held that the water in a natural stream or river course is open to use by the riparian owner for all primary purposes, irrespective of diminution in the quantity of water resulting from such use. Domestic use, use for cattle, and such other purposes are primary purposes. Domestic use, use for cattle, and such other purposes are primary purposes. The Court held that in diverting water for secondary purposes such as for irrigation or for running a mill, the use by the riparian owner is subject to the restriction that such use shall not cause material diminution in the supply in the stream to other riparian owners. The rights of the other riparian owners should not be sensibly injured. Any riparian owner who seeks to use the water of a natural stream must use it reasonably, keeping in mind that he is not entitled to exclusive user of the water of the stream and that the fundamental consideration is that the user by the other riparian owners should not in any way be prejudiced by the way he diverts the resources to his own purposes. 32. Coming to the fact of this case, the defendants were extracting water from the natural channel not for their primary purposes but for irrigation purposes also. In exercise of the right of a riparian owner, the defendants cannot divert or obstruct the natural course of flow of the stream or channel, and there cannot also be material diminution in the supply to the other riparian owners. The bund put up by the defendants would obstruct and divert the natural flow and course of the water channel and that will also cause harm or legal injury to the plaintiff. 33. Admittedly, the plaintiff's property is lying at a lower level than the property of the defendants. The materials brought before this Court, make it evident that there is possibility of water logging in the plaint schedule property in case of stagnation of water in the channel due to obstruction of the course of water. Naturally, the water logging would destroy the improvements in the property and obstruct the cultivation therein. The defendants have no legal right to stop the natural course of the water channel being a riparian owner. The detention of water by the defendants by constructing the bund is necessarily injurious to the natural rights of the plaintiff as a riparian proprietor. 34. The defendants have a legal obligation to see that there is no water logging due to their acts. The plaintiff has established the ingredients for getting mandatory and prohibitory injunctions against the defendants. 35. The detention of water by the defendants by constructing the bund is necessarily injurious to the natural rights of the plaintiff as a riparian proprietor. 34. The defendants have a legal obligation to see that there is no water logging due to their acts. The plaintiff has established the ingredients for getting mandatory and prohibitory injunctions against the defendants. 35. The Trial Court and the First Appellate Court held that the plaintiff established that the defendants would extract water not only for their primary purposes and for irrigation purposes. The Courts below further held that as the property of the plaintiff is lying at a lower level than the property of the defendants, obstructing the natural flow of the water channel by constructing a bund would cause harm and injury to the plaintiff in the form of water logging in the plaint schedule property. The substantial question of law is answered accordingly against the appellants/defendants. The Regular Second Appeal is dismissed. The parties are directed to bear their respective costs.