1. The question that arises for determination in this Second appeal is whether the plaintiffs are entitled to irrigate their lands by getting water from the lands belonging to the defendants.
2. The plaintiffs are the owners of the land S. No. 108/B in the village Komarica in the District of Nellore. The defendants had recently purchased S. No. 109/A belonging to one Thota Lakshamma and adjoining to S. No. 108/B. The plaintiffs filed O.S, No. 479 of 1951 on the file of the District Munsifs Court, Nellore for a declaration of their right to have their lands irrigated through S. No. 109/A. The case of the plaintiffs is that for several generations past then lands which are lower in level than the lands of the defendants were being irrigated by the flow of water from the defendants' lands.
The action was founded upon immemorial right, custom and prescriptive title as a right of easement and under a lost grant. The defence to the action was that there was no such right, that there was neither prescriptive title as a right of easement or a lost grant, that the plaintiffs have a separate source of irrigation, that if the water is allowed to flow to S. No. 108/B through S. No. 109/A, the defendants would suffer great injury, as there will be a diminution of the supply of water for their cultivation and also the washing away of the manure of the lands of the defendants.
3. On these pleadings, the learned District Munsif framed appropriate issues. The first issue reads as follows :
'Whether the plaintiffs are entitled to irrigate S. No. 108/B through the defendants' lands in S. No. 109/A as pleaded in the plaint?'
The evidence on the question in issue was mainly oral. Five witnesses were examined on behalf of the plaintiffs and six for the defendants. The learned District Munsif, appears to have made local inspection. The notes of inspection, however, had not been kept as part of the record, and on this circumstance considerable comment has been made by the learned counsel for the appellants, which I shall deal with later.
On the evidence, the learned District Munsif came to the conclusion that the testimony of the witnesses on behalf of the plaintiff is true, that even according to the defence witnesses, the alternative source of irrigation of S. No. 108/B is not adequate, that till the purchase of S. No. 109/A by the defendants in 1951, there was no difficulty, as the plaintiffs' land was presumably being irrigated by the flow o water from 109/A belonging to the defendants. He therefore, granted a decree in terms prayed for.
4. In appeal A.S. No. 48 of 1954, on the file of the Subordinate Judge's Court, Nellore, the findings of the learned District Munsif were affirmed. The learned Subordinate Judge held that the alternative source of irrigation pleaded in the written statement by the defendants, namely, through Juttuwadi Kalva cannot irrigate the entire extent of the respondents' lands covered by S. No. 108/B, and that there is no other source except the one claimed by the plaintiffs, and established by the Commissioners report, the oral evidence in the case and other probablising circumstances upon which reliance was placed by the trial Court. As to the injury and inconvenience that was pleaded by the defendants if the water is allowed to flow from their field to that of the plaintiffs, the learned Subordinate Judge held that they were only imaginary.
5. The_ Courts below have therefore, found (i) that the plaintiffs have proved that for long number of years prior to the action they were getting water for the cultivation of their lands in S. No. 108/B. through the lands of the defendants in S. No. 109/A, (ii) that the alternative source suggested in the written statement is not enough to cultivate the entire area comprised in S. No. 108/B, and (iii) that the injury pleaded by the defendants in case the plaintiffs are allowed to take the water is unreal and imaginary. These are concurrent findings of facts with which interference in Second Appeal is neither permissible, nor warranted.
6. Mr. Rama Sarma, the learned counsel for the appellants has, however, raised before me several contentions, which I propose to examine in the order in which they were raised.
7. The first contention of the learned counsel is that the Subordinate Judge approached the case from a wrong perspective. According to him, the-learned Subordinate Judge has proceeded on the assumption that since the plaintiffs do require water for irrigating their fields there must have been some source of irrigation and that source must be the one claimed by the plaintiffs. It is urged that this is not a correct way of approach, and that the learned Subordinate Judge should have discussed the evidence without a preconceived notion that since no other source has been proved, what is claimed in the plaint must be the only source. There is not much force in this criticism.
The learned Subordinate Judge agreed with the findings of the learned District Munsif that the evidence of the plaintiffs established that for a long number of years S. No. 108/B was receiving water through S. No. 109/A. The learned Subordinate Judge tested the credibility of that evidence with reference to the probabilities. In so testing he was not wrong in taking into account the fact that there did not appear to be any other source except the one claimed by the plaintiffs. I cannot say that there is anything erroneous or wrong in principle in what the learned Subordinate Judge has done by testing the oral testimony with the general probabilities of the Case.
8. It is next argued by Mr. Sarma, that the Courts below have proceeded upon the footing that the right claimed in the plaint is in the nature of an easement, and have granted a decree on that basis. It is urged that on the pleadings and evidence tendered in the case, no easementary right had been made out. This is not manifestly a case of an easement created by grant. It must be, therefore, according to the learned counsel an easement by prescription within the meaning of Section 15 of the Indian Easements Act (Act V of 1882). If that is so, it is contended that Section 17 of the Act would be a bar to the acquisition of any such easement by prescription.
Under Clause (c) of Section 17, a right to the surface water not flowing in a stream and not permanently Collected in a pool, tank or otherwise cannot be acquired by prescription. It is urged that from the pleadings and the evidence it is clear that the water that flows into S. No. 108/B through S. No. 109/A does not flow in a stream or in any defined channel. In other words, it is urged that what is claimed in the plaint and what has been established in evidence is a right to the flow of surface water from field to field.
9. It, therefore, falls to be considered whether the water in respect to which the suit claim has been made is surface water. Regarding the nature of the surface water, Farnham in his law of 'Waters and Water-courses' (1) observes as follows : (Vol. 3; P. 2556)
'When water appears upon the surface a diffused state, with no permanent source of supply orregular course, and then disappears by percolation orevaporation, its flow is valuable to no one, and it must beregarded as surface water, and dealt with as such.'
10. In Coulson and Forbes on Waters and Land Drainage (VI Edition page 94) it is stated as follows :
'The principle which regulates the rights to water flowing in known and defined channels whether upon or below the surface of the ground, do not apply to water whether under or above ground, having no certain course or defined limits, such as that merely percolating through the strata of the earth, or that diffused over its surface, such water not being subject to law of Water Courses.'
From the passages extracted above, it would be clear that the main feature of surface water is its inability to maintain its identity and existence as a water body. It has, therefore, to be seen whether on the evidence on this case, it can be said that the water claimed by the plaintiffs is in the nature of surface water, in other words, whether the water does not maintain its identity and existence as a water body.
The case of the plaintiffs is that the water let through 'Chinna Cheruvu' 'Pulakaneela Kalva' as well as the water let through the 'Muddivathipalem' irrigation channel enters S. No. 109/A from the south and then gets into the fields of the plaintiffs for irrigation. The evidence in the case is also to the effect that the water that flows into S. No. 109/A is neither spring, nor rain water, but water let into by recognised irrigation channels. After irrigating S. No. 109/ A, the water flows into S. No. 108/B from an opening in the ridge on the southern side. The question, therefore, 13 whether by reason of the fact that the water spreads over the entire field of S. No. 109/A before being let into S. No. 108/B it can be called surface water.
11. In Adinarayana v. Ramudu, ILR 97 Mad 304: (AIR 1914 Mad 507) a Bench of the Madras High Court consisting of Sundara Ayyar and Sadasiva Ayyar JJ., held that water flowing into a field from a known channel and passing along the field onwards into another field though not over a confined track in the former field, but along its whole area is not surface water. This is a direct authority.
12. I, therefore, hold that the water claimed in the instant case does not partake of the character of surface water. It, therefore, follows that there is no legal bar to the acquisition of such a right by way of an easement or otherwise.
13. The next contention of Mr. Sarma is that, the claim of the plaintiffs cannot be based upon any-customary easement within the meaning of Section 18 of the Indian Easements Act. He urges that there is no local custom proved that water from one field flows to another. It is also pointed out that the rights contemplated under Section 18 of the Act are in the nature of public rights and not individual rights. I do not think there is any force in this criticism, as the plaintiffs have not founded their right on any local custom.
14. It is also contended by the learned counsel that in no event could this claim be regarded as an easement of necessity. It is argued that necessity must be absolute and since the evidence shows that the plaintiffs' lands are getting water from Juttuvadi Kalva, no case of easement of necessity can arise. As pointed out in Chhotalal v. Devshankar, 3 Bom LR 601 there is a distinction between absolute necessity such as is indicated in Section 13(1)(c) and (d) and a qualified necessity as contemplated under Section 13(1)(b). In M. Gangulu v. T. Jagannadhan 45 Mad LJ 724 at p. 728: (AIR 1924 Mad 108 at p.111) a Bench of the Madras High Court following the distinction made in 3 Bom LR 601 (supra) held that where a plot was irrigated by a flow of water flowing from the adjoining land through vents it would be a qualified easement under Section 13(1)(b) of the Act, provided it is continuous and apparent.
15. It seems to me that even if all the requirements of the acquisition of an easement, either by grant or prescription are not present in this case, still the plaintiffs could claim the right on the foot of customary right. Such a right can well be apart from and independent of the Indian Easements Act, In Rajrup Koer v. Abdul Hossein, ILR 6 Cal 394 at p. 403 the Judicial Committee of the Privy Council observed as follows as regards the scope of the Indian Easements Act :
'The object of the Statute was to make more easy the establishment of rights of this description, by allowing an enjoyment of twenty years, if exercised under the conditions prescribed by the Act, to give, without more, a title to easements. But the Statute is remedial, and is neither prohibitory nor exhaustive.'
It is possible, therefore, for a party to claim a customary right on the basis of a long user.
Mr. Sarma's contention is that such a plea has not' been clearly made in the plaint. In Manmatha Nath v. Rakhal Chandra, AIR 1933 Cal 215 it has been held that the plaint should be liberally construed and though it is necessary that the plaint claim should be definite and precise, still if all the relevant allegations are present it is open to the Court to uphold a customary right on the basis of user leading to the inference of a lost grant. In Nagarentha Mudaliar v. Sami Pillai, AIR 1936 Mad 682 at p. 685, Venkataramana Rao J., observed as follows:
'No doubt in so many words lost grant or customary user are not mentioned in the plaint. The distinction between water brought on to the land by artificial means and water naturally falling to the land was also not made. But the necessary allegations to found such a right as there. To infer doctrine of lost grant or a claim based on prescription all that is necessary to be alleged is long continual and peaceful possession. Where these incidents are found the Court will if possible presume a grant of the right in question.'
I respectfully follow the principle enunciated by the learned Judge. In this case, the Courts below have given a concurrent finding that for a long number of years without any interruption the owners of S. No. 108/B were getting water through S. No. 109/A. That finding of fact is enough to sustain the decision of the Courts below. Mr. Sarma contends that the owner of one field is entitled to all the water that flows into his land through known irrigation sources, and that no obligation can be cast upon him to let out the water into the neighbouring field. In support of this contention he has placed strong reliance upon the decision of Somayya, J., in Krishnaswami Chettiar v. Pappai Naicker, 1944-1 Mad LJ 62; (AIR 1944 Mad 228).
It is contended that the only remedy in a case where the owner of a lower field requires water is to approach the Government and to request for the adequate supply of water for his irrigation, as it is the primary duty of the Government to regulate water supply to all the fields registered under a particular irrigation source. In the case cited above, the fact are as follows : A suit was filed for a declaration that plaintiffs had right of taking water of a tank. There was a surplus channel and the fields of the plaintiffs were on the east of the surplus channel and the fields of the defendants were to the west.
The defendants' lands were registered as S. No. 2765. The case of the plaintiffs was that the water which came to the southern portion of the defendants' lands after irrigating that portion was let into the surplus channel and the plaintiffs were irrigating their lands from that surplus channel. In or about 1937, the defendants made alterations in their lands, the result of which was that the water which was hitherto being let into the surplus channel was used for the cultivation of the entire field. In those circumstances, the plaintiffs filed an action requiring the defendants to keep a portion of the surplus channel in the same state as it was prior to the alterations.
On the facts found, Mr. Justice Somayya, took the view that there is nothing to preclude the owners of S. No. 2765 to make such alterations in their land as they deemed fit and to use water that flowed , inta their lands, and that the only course that the owners of the lower field can take is to approach the Govern-1 merit for the necessary water. The facts of1 this case are entirely different. It is not the case of the defendants here that the plaintiffs have a right to take the water, though it is subject to their own enjoyment. The defendants in this case denied the right of the plaintiffs in toto to take any water from their fields. That being so, the only question is whether on the facts proved the plaintiffs are entitled to the right or not.
16. There is a considerable body of judicial authority for the proposition that the owner of an upper agricultural land is entitled to let his water to flow in its natural course without any obstruction Into the lands adjoining and lower in level, and that the owner of the lower land is not entitled to raise any bund in his land, which will have the effect of seriously interfering with the upper owner's right.
17. In Young (John) & Co. v. Bankier Distillery, '(1893) AC 691 Lord Watson describes the right thus:
'It is an incident of property arising from the relative levels of their respective lands and the strata below.'
The same principle is embodied in illustration (I) to Section 7 of the Easements Act. I need not refer to other decisions that lay down the same rule, whether based on natural right or customary right.
18. But there are very few decisions which deal with a converse case of the right of an owner of the lower field to insist upon water being let down into his land. It seems to me there is no definable principle of distinction between the two cases. In Harnessur Persad Narain Singh v. Koonj Behari Pattuk, ILR 4 Cal 633 it has been held that the right to water flowing to a man's land through an artificial water course constructed on a neighbour's land, must rest on some grant or arrangement proved or presumed, from or with the owner of the land from which tiia water is artificially brought, or in some other legal origin. Such a right may be presumed from the time, manner, and circumstances, under which the easement has been enjoyed. I am of the view that where water is brought to the higher land by artificial means, it may be open for the owner of an adjoining lower land to claim by customary right based on long immemorial user that the water from the higher land shall be let into his land for the purpose of irrigation.
19. It is argued that the rights of the plaintiffs must not be enforced in such a manner as to be destructive of the beneficial enjoyment of the defendants of their lands. The defendants have not proved that by allowing the water to flow into Section No. 109/A there will be a diminution in the supply of water for their irrigation purposes. But what has been contended in the Courts below and here before me is that if the water overflows from the defendants' lands all the manure on the defendants' lands would be washed away.
The Courts below have found that the water is taken to the plaintiffs' lands only through a vent or a 'madava' in the southern ridge of the plaintiffs' lands. Further D.W. 3 has admitted that the manure of the field's precedes the ploughing and it is only after the fields are ploughed that water is let in. In view of these two circumstances, the Courts below have held that the alleged injury to the defendants is only imaginary. I see no reason to differ.
20. The last contention of Mr. Sarma is that the judgment of the learned District Munsif is vitiated by the fact that the full notes of his inspection are not made part of the record. He has placed reliance on the recent decision of the Madras High Court in Kaliammal v. Pongiammal, AIR 1958 Mad 331, where it has been held that the failure to prepare and keep the notes of inspection on the record will vitiate the judgment, as the facts observed by the Judge at the local inspection must have consciously and unconsciously been taken into consideration by him in arriving at his conclusion in the judgment although the judgment itself is not visibly proved to have been so influenced.
21. The facts of that case are that the learned Subordinate Judge who was hearing the appeal made a local inspection of the suit locality during the pendency of appeal and decided the case on a reference to his personal inspection and failed to keep a record of his inspection. There is one difference between the facts of that decision and those of the present case. In the instant case, the local inspection was not made by the Subordinate Judge who heard the appeal, but by the learned District Munsiff. The learn Subordinate Judge decided the appeal on the evidence on record.
No reference was made to the impressions formed at the local enquiry by the District Munsif. In fact, diere was no occasion to refer to them as admittedly no record of the inspection was kept and made part of the record. So it seems to me that the judgment of the learned Subordinate Judge which is now under appeal is not liable to objection on the basis of the decision referred to above. Assuming however, that it makes no difference whether it is the District Munsif that made the local inspection during the trial or the Subordinate Judge during the pendency of the appeal, it remains to be considered whether the mere failure to keep the notes on record irrespective of the fact that the findings are based upon other evidence is as such an illegality as would vitiate the entire trial and the decision.
22. Order 18, Rule 18 of the Civil Procedure Code provides that the Court may at any stage of the suit inspect any property or thing concerning which any question may arise. There is no obligation on the part of the Court to make an inspection. It may inspect the locality, if it thinks fit. There is no express provision in the Code that notes should be made and kept on file. The only limitation to use of the impressions gathered by the Judge is that his impres sions cannot be substituted for evidence. In London General Omnibus Co. Ltd. v. Lavell, (1901) 1 Ch D 135 at p. 138, Lord Alverstona C. ]., in interpreting tho terms of Order 50, Rule 4 of the Rules of the Supreme Court (1883) similar to Order 18, Rule 18, C.P.C., observed as follows :
'It is quite true that by Rule 4 of Order 50, it is provided that the Judge may inspect 'any property or thing concerning which any question may arise,' in the action; but I have never heard it said, and speaking for myself, I should be very sorry to endorse the idea, that the judge is entitled to put a view in the place of evidence. A view, as I have always understood, is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply the evidence.'
This rule has generally been followed in India. In Municipal Council, Calicut v. Velayudha Menon, AIR 1931 Mad 531, Anantakrishna Aiyar, J., has stated that tho judgments should not be solely based on the judge's observation. In Paimasani Bai v. Sabhapathy Mudaliar, (1939) 2 Mad LJ 284, Mr. Justice Somayya held, following the authority of Anantakrishna Aiyar. J., cited supra that the notes of local inspection of premises made by the Judge should be used by him only to test the accuracy of the evidence let in and that ho should not make his knowledge the sole evidence for determining the questions raised before him without giving opportunities to the parties to lot in counter evidence and explain what he noted at the inspection.
In Kessowji Issur v. Great Indian Peninsular Rly. Co., ILR 31 Bom 381, the Judicial Committee of the Privy Council reversed the decision of the Bombay High Court in appeal solely on the basis of the local inspection made by the learned Judges. In Ahmed Sahib Shutari v. The Mangnesite Syndicate Ltd., ILR, 39 Mad 501: (AIR 1915 Mad 1214 (D), it has been held that the judgment should not be based solely on the result of the inspection made by the Judge.
23. From the aforesaid authorities, it is clear that the Judge making the local inspection cannot substitute his own impressions for the evidence in the case and cannot act solely on his impressions.
24. It remains to be seen in this case whether the learned District Munsif has acted solely on his impressions. In para 24 of the judgment, the learned District Munsif says as follows :
'At the time of ray inspection, the plaintiffs showed me a portion of the ridge, and stated that the vent existed there previously. I directed them to remove that portion of the ridge and it was removed very easily by one of the friends of the plaintiffs. The defendants in their turn showed that it was not difficult for any one to remove a portion of the ridge within a short time and one of them directed their servant to remove a, portion of the ridge in another place.
Those two openings were made in a few minutes. That revealed that it was possible for any one to make an opening even in a big ridge within a short time. Hence the existence of a big ridge does not help the cause of the defendants. The plaintiffs wanted to show that the earth forming the ridge at the place where they made the opening was loose and that it was hard at the place where the opening was made by the defendants. But I did not find any such difference.'
From the above passage extracted from the judgment, it would be seen, that the learned District Munsif had not acted on his own impressions and the reference to his observations were merely in confirmation of certain immaterial particulars about which there was independent evidence,
25. But what is argued is that, it is the duty of the Judge inspecting the scene to reduce into writing his impressions of local inspection and keep it as part of the record.
26. There seems to be nothing in the language of Order 18, Rule 18 of the Civil Procedure Code to require any such record being made or kept on file, In Raj Chandra v. Iswar Chandra, AIR 1925 Cal 170, this very point was considered by a Bench of the Calcutta High Court. Suharawardy J., observed as follows :
'It is, however, argued that the learned Munsif left no note on the record on the result of his inspection, it was not possible for the plaintiffs to fore see the points that struck the Munsif most and to adduce evidence to explain it. I do not desire to he a party to Living down any such proposition as has been done in some of the cases, that it is the duty of the Court when holding a local inspection to leave a note of the same. There is nothing in the statute to make it obligatory on the Court and no such provisions should be read into it. The only limitation that has been placed on the right of the Court to make such local inspection is that the Judge should not make it the basis of his judgment irrespective of the evidence adduced by the parties.'
Mr. Justice Graham, agreeing with Suhrawardy J, observed as follows :
'As regards the second contention it is to be observed that the Civil Procedure Code nowhere lays down that the result of a local enquiry must be placed on record and I do not think that we ought to read into the rule something which has not been stated therein.'
To the same effect is the decision in Bholanath Ghose v. Momena Khatun, AIR 1946 Cal 444, where Sharpe J., held that there is no provision in Order 18, Rule 18 of the Civil Procedure Code for making the memorandum of the local inspection to form part of the record, such as is provided by Section 539(b) of the Cr. Procedure Code, and where, therefore, a local inspection is made on the prayer of both the parties for the express and limited purpose of understanding file evidence and appreciating the arguments, a party cannot have any grievance on the ground that the memorandum of the inspection was not referred to or incorporated in the judgment.
In an early case in Joy Commer v. Bundhoolal, ILR 9 Cal 393, this question came up for consideration. In that case, the Munsif visited the locality, and it appeared that in his judgment he relied upon certain facts which came under his observation when he was on the spot. Some of those facts were not proved by evidence. The District Judge on appeal reversed the decision of the Munsif basing his decision mainly upon the oral evidence on record and wholly excluding the result of the investigation held by the Munsif. The High Court in Second Appeal took the view that the exclusion of the impressions of the learned District Munsif was not correct and reversed the decision of the District Judge. They however observed as follows :
'It is very desirable that the judicial officers conducting local investigation should place upon record the result of their investigations as soon as they are completed so that the parties may have an opportunity of seeing what facts are which the judicial officers considered to be established by the local investigations.'
27. In Govindaswamy Naidu v. Pushpalammal, : AIR1952Mad181 , Rajamannar C J., has held in a case under Buildings (Lease and Rent) Control Act that 'it is most desirable' that the Rent Controller should keep a record of his impressions of the local inspection. In AIR 1958 Mad 331, already referred to, the learned Judges have taken a view that goes further. They held that the failure to prepare such notes and keep them on record will vitiate the judgment as the facts observed by the Judge at the local inspection must have consciously or unconsciously been taken into consideration by him in arriving at his conclusion in the judgment, although the judgment itself is not visibly proved to have been so influenced. With great respect to the learned Judge, I find it difficult to assent to a proposition so widely stated. I am unable to see how the preparation of the notes and keeping it as a part of the record would eliminate the chance of the Judge being consciously or unconsciously relying upon his own impressions.
28. I am, however, in respectful agreement with Rajamannar C: J., and other learned Judges that it is most desirable that whenever Judges make local inspection, the notes of such inspection should be kept as part of the record. But where I am unable to follow the learned Judges who decided Kaliammal v. Fongiammal, AIR 1958 Mad 331 (Supra) is that irrespective of the fact whether the Judge has relied upon his impressions at the local enquiry or not and irrespective of the fact whether the judgment rendered by him is based upon independent evidence or not, the mere failure to keep the notes on file would render the entire trial vitiated.
It seems to me such a view would convert a salutary principle of prudence into a mandatory rule of law. The failure to keep the notes as part of the record may at the worst amount to an irregularity in a proceeding or suit, not, however affecting the merits of the case or the jurisdiction of the Court. In these circumstances, I do not think that there is any substance in the points raised by the learned counsel for the appellants.
29. In the result, the appeal fails and is dismissed with costs. Leave granted.