Kulwant Sahay, J.
1. This is an appeal by the defendant against the decree of the Subordinate Judge of Gaya confirming the decree of the Munsif and decreeing the plaintiffs’ suit. The plaintiffs and the defendant are the co-owners of Mauza Bagahi in Mahal Deokali, Tousi No. 4100, in the District of Gaya. Mauza Bagahi was partitioned several years ago. According to the defendant the partition took place about fourteen years ago. By this partition the village was formed into three takhtas: one of 9 annas forming the istamrari mukarrari interest of the plaintiffs Nos. 1–10 and of the defendant, another of 1 anna belonging to the plaintiffs Nos. 11–13, and the third of 6 annas belonging to the defendant exclusively. There are several ahars in this village. The southern most ahars is the Parao ahars. To the north of it is Genda ahar which the plaintiffs allege is not an ahar but is known as Kita Genda, whereas the defendant alleges that it is an ahar. To the north of it is the Ganghar ahar. To the north-east of Ganghar is Jharhi ahar to the north-west of Ganghar is Dangra ahar. The Parao, Genda, Ganghar and Dangra ahars are in the 6 annas takhta of the defendant, and the Jharhi ahar is in the 9 annas takhta belonging to the plaintiffs Nos. 1–10 and the defendant. To the south of the village Bagahi is Mauza Khutha.
2. The plaintiffs’ case is that the system of irrigation in the village since time immemorial has been that water from the southern village, Mauza Khutha, came by means of a defined channel into the Parao ahar; that after irrigating the lands to the north of Parao ahar the excess water used to flow into the Ganghar ahar and from Ganghar ahar the water used to come to the Jharhi ahar from which the lands in the 9 annas takhta used to be irrigated. The plaintiffs complain that the defendant has raised the embankment of the Genda ahar and has placed Dhongas on the western pind of Genda ahar, with the result that the flow of water into the Jharhi ahar has been stopped and the defendant has been irrigating his lands to the west of Genda and Parao ahars which used never to be irrigated by the water from these ahars. The plaintiffs, therefore, ask for a declaration that on adjudication of the plaintiffs’ title it be held that the defendant had no right to raise the height of the pind bearing No. 754 in Genda ahar and had no right to put a dhonga on the western pind, that the original height of the northern pind of Genda ahar was only 1 1/2 feet and that the defendant had wrongfully raised it to 5 feet; that it might be determined and declared that the plaintiffs were entitled to cut the pind No. 754 and to take water into the Ganghar ahar and thence into the Jharhi ahar and the Dangra ahar; that it might be declared that the defendants had no right to take water towards the west of the pind, in khasra No. 788 and they had no right to place the dhonga in the said pind No. 788; and they prayed that an order may be made to demolish the pind of the Genda ahar No. 754 and to reduce it to its original height of 1 1/2 feet and to remove the dhonga from the pind No. 788, and that a permanent injunction might be issued restraining the defendant from ever raising the height of the pind 754 to more than 1 1/2 feet or placing a dhonga in pind No. 788.
3. The defence of the defendant was that the surface water of Mauza Khutha used to come into the Parao ahar and the lands of the defendant used to be irrigated thereby, thereafter the Genda ahar used to be filled with water from the Parao ahar and the water from the Genda ahar used to Irrigate some lands of the defendant, thereafter the water of the Genda ahar used to go into the Ganghar ahar and thence into the Jharhi ahar and from it the lands of defendant as well as the plaintiffs in the 9-annas takhta used to be irrigated, after that the water of the Ganghar ahar used to go into the Dangra ahar and from it the lands of the defendant and some lands of the 9-annaa takhta used to be irrigated, that the flow of water from Khutha into Parao ahar had been stopped on account of obstructions raised by the proprietors of Khutha, and that as the flow of water from Khutha into Parao ahar had been stopped, the Parao ahar is now filled by rain water and there is no sufficient quantity of water in the Parao ahar to flow into the Ganghar and the Jharehi ahars. The defendant stated that the height of the pind No. 754 has always been 5 or 6 feet, and that he has the right to take water from the Genda ahar to irrigate his lands towards the west of the pind No. 788. He also raised certain objections as regards limitation and as regards the suit being bad for non-joinder of the proprietors of Mauza Khutha, and he asserted that he had the right to discharge the excess water from his ahars into the Jharhi ahar, but that the plaintiffs had no right to compel him to do so and they were not entitled to take water from the Parao or the Ganghar ahars into the Jharhi ahar as a matter of right.
4. Various issues were raised, and the learned Munsif decided them all in favour of the plaintiffs. He found that there was never any dhonga from before in the western pind of the Genda ahar, and, that water from Parao ahar or Genda ahar never irrigated the lands lying to the west thereof, that the dhonga and the passages for taking the water were new and recently made by the defendant, that Genda was only a kita and not an ahar, that the height of the Genda pind was only 3 feet and that the defendant had wrongfully raised it to 5 feet, that the flow of the surface water of village Khutha had not been stopped and that it was still flowing into the Parao ahar, that the plaintiffs had established their right to take the water from the Parao ahar into the Jharhi and the Dangra ahars and that the defendant had no right to stop the same. He accordingly made a decree in favour of the plaintiffs directing that the height of the northern pind of kita Genda be reduced to its original height of 3 feet, that the dhonga or Karha or any other water passage in the western pind of Genda or Parao ahars will be closed, and that the defendant be perpetually restrained from irrigating his lands to the west of Genda and Parao from the water of the Parao or Genda ahars and from increasing the height of the pinds of kita Genda above 3 feet.
5. Against this decree the defendant went in appeal before the Subordinate Judge. The points urged by him before the Subordinate Judge are set out in detail in his judgment. One of the points taken before him by the defendant was that the plaintiffs had acquired no right to compel the defendant to let the excess or surplus water of his upper land flow over his land into the plaintiffs’ ahar and that the plaintiffs had no right to reduce the northern pind of Genda or to prevent him from taking the water to the west of the Genda and Parao ahars. The learned Subordinate Judge has found that water from Khutha flows through a defined channel into the Parao ahar. He has also found that the defendant has no right to take water from kita Genda westward through the Dhonga and that the original height of the northern pind in kita Genda was 3 feet and that the defendant had no right to raise it to 5 feet. As regards the right of the plaintiffs to take the water into the Jharhi and the Dangra ahars, the learned Subordinate Judge has come to no finding. He observes as follows:
I think that when the plaintiff is entitled to the surplus water of kita Genda overflowing the pind of kita Genda to the north, the plaintiffs have a right to insist that the defendant should not increase the height of that pind.
6. He takes it for granted that the plaintiffs are entitled to take the surplus water of kita Genda. It is true that the learned Munsif came to the finding that the plaintiffs had acquired such right. Although the Munsif found that the plaintiffs had failed to prove any contract or prescriptive right by evidence, yet he was of opinion that it was to be presumed from the acts of the patties that the father of the defendant contracted or agreed to allow the excess surplus water to pass to Ganghar ahar through the newly constructed Parao ahar which he found had been constructed by the defendant’s father, and that the system of irrigation has always been as alleged by the plaintiffs in the plaint. The Munsif, therefore, proceeded upon the assumption that the plaintiffs had acquired the right under a contract. This finding of the Munsif was challenged by the defendant in appeal before the Subordinate Judge but the learned Judge has come to absolutely no finding upon the point. As was observed by Dawson Miller, C.J., in Sarban v. Phudo Sahu 69 Ind. Cas. 947 : (1922) Pat. 305 : 4 U.P.L.R. (Pat.) 105 : 4 P.L.T. 81 : A.I.R. 1923 Pat. 65 : 2 Pat. 110, every land owner has a natural right to collect and retain upon his own land the surface water not flowing in a denned channel and to put it to such use as he may desire. He may also allow it to flow away in the usual course of nature upon the lower lands of his neighbour and cannot be bound to prevent it from so doing. There is no defined channel from the Parao ahar to the Ganghar ahar or from the Ganghar to the Jharhi or the Dangra ahars, and it is for the plaintiffs to prove how they have acquired the right to compel the defendant to discharge the water from the Parao ahar into the Ganghar ahar and from there into the Parao and the Dangra ahars. So long as the water remains on the defendant’s land, he has every right to make whatever use of it he thinks proper, and even if he had never taken the water from these ahars to irrigate his land lying to the west of the Genda ahars or Genda kita and the Parao ahar, there is nothing in law to prevent him from doing so, unless and until the plaintiffs establish that they have acquired a right to compel the defendant not to do so. It is contended on behalf of the appellant that he has every right to convert his waste lands and bheeth lands into paddy lands, and there is no reason why he should not improve his estate if by so doing he does not infringe the right of any other person. I am of opinion that the learned Subordinate Judge has failed to consider the very material issue as to whether the plaintiffs have acquired either by contract or by prescription any right to compel the defendant to discharge his water into the Jharhi and the Dangra ahars as although the defend ant may have a right to discharge his excess water on to the plaintiffs’ land, the plaintiffs cannot compel him to do so unless they prove that they have acquired such right.
7. The decree of the learned Subordinate Judge, therefore, must be set aside and the appeal must be remanded to him for rehearing and disposal according to law, Costs will abide the result.
8. I agree.