1. In this second appeal preferred by the first defendant, we are concerned with a channel called Punyam kasam kalva. It has its source in a river-bed in a village called Samanthavada, passes through the lands of Samanthavada and Aravasipattada, and flows into the limits of Punyam village where it irrigates Punyam lands. If is common ground that it is an artificial channel. It is also agreed that every drop of water in the channel is intended for the benefit of the proprietor and the ryots of Punyam and that the people of Samanthavada and Aravasipattada have no rights whatever to the water flowing in this channel. Originally the Rajah of Karvetnagar was the owner of the aforesaid three villages. He mortgaged them to different persons on various dates; and ultimately Aravasi pattada and Samanthavada were purchased by the Tirumalai and Tirupathi Devasthanam, while Punyarn was purchased by the first defendant. After this purr chase, the first defendant laid claim to the trees standing on the bunds of the channel within the limits of the village of Aravasipattada and auctioned them. They were also cut and removed despite the protests by the Devasthanam subordinates. Hence this suit for a declaration that the Devasthanam is solely entitled to the bed and the bunds of the Punyam kasam kalva so far as it lies in the village of Aravasipattada and for an injunction restraining the defendants from interfering with the bunds and the bed and the trees.
2. The first defendant contended that the channel inclusive of the bed and the bunds even within the limits of the suit village belonged to him as the proprietor of Punyam village, for whose exclusive benefit the channel was dug and exists. He also relied on adverse possession.
3. The District Munsiff decreed the plaintiff's suit holding that the first defendant had no ownership of the bed or the bunds of the channel in the suit villages pf Aravasipattada and Samanthavada. While the plaintiff had not been able to show even a single act of ownership in regard to the trees standing on the banks of the channel, the first defendant had not been able to establish the adverse possession set up by him. This decree was confirmed on appeal by the Subordinate Judge of Ghittoor.
4. The question whether the first defendant had acquired title by adverse possession is concluded by concurrent findings of fact and is not open to challenge in second appeal. So Mr. V. Ramaswami Aiyar, the learned advocate for the appellant argued only the question of title to the channel and urged that when originally the Rajah of Karvetnagar as the proprietor of the three villages constructed this channel to take the spring water from its source to the Punyam lands, he must be deemed to have done so as the owner of the bed and the bunds on either side and not merely as a person who wanted to take the water over another man's lands to his own property further down. In this connection he referred to some text-books and decisions as to what was meant by a water-course and he urged that the rights with reference to an artificial water-course like the one in the present case are fundamentally different from the rights with reference to a natural water-course. As pointed out by Angell in his standard treatise on water courses, every watercourse consists no doubt of the bed, the bank and the water. This however does not mean that a person who has got the right to take the water along the water course is necessarily the owner of the bed or the bank or bund. The bed and the bund may belong to one person, the water flowing over the bed and within the banks may be the subject of enjoyment by another. This is pointed out by Angell himself at page 9 of the seventh edition of his work, where we find the following observations:
The proprietor of adjoining lands, who is also the proprietor of the bed of a river, may grant and convey the bed of the river separate from the land which bounds it. He may convey his estate in the bed of the river without his upland or his upland without the bed of the river and such conveyances will be good and available; or he may convey a part of his estate in the bed of the river and may divide it in any form or by any lines which he may think proper. But a grant of a stream of water or watercourse, eo nomine, will not pass the land over which the water runs.
In the leading case of Fishmonger's Company (1876) 1 A.C. 662. Lord Selborne observes that the right of a riparian owner to the use of the stream does not depend on the ownership of the soil of the stream and the connection where it exists of property on the bank with property in the bed of the stream, depends not upon nature but on grant or presumption of law and that the title to the soil constituting the bed of the river does not carry with it any exclusive right of property in the running water of the stream.
5. With reference to an artificial watercourse the rights of ownership of the bed, bund or bank and water depend on contract which may be proved or presumed. The difference in this respect between a natural channel and an artificial channel is pointed out in Rameshur Prasad Narain Singh v. Koonj Behari Pattuk (1878) LR. 6 IA. 33 : I.L.R. 4 Gal. 633 in the following words:
There is no doubt that 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 on with the owners of the lands, from which the water is artificially brought, or on some other legal origin.
When there is no proof of any original contract, a presumption of a lost grant or a legal origin has to be drawn consistent with the enjoyment of rights by the several parties. This is apparent from the same decision of the Privy Council where this passage occurs at page 639:
It may be that at the time when this system of irrigation was adopted the mouzahs now belonging to the plaintiff and the defendant formed one estate; and if so, on severance, the right to the continued flow of the water in the accustomed channels would arise and subsist (see on this point Watts v. Kelson L.R. 6 Ch. A. 166); or, if the mouzahs were always separate, it may be that, by the construction of the Maheoet Tal, vvaterlwas intercepted which would naturally have flowed to Chahul, and that this or some other consideration existed which led to an agreement between the proprietors respecting the use of the water.
It is in evidence that the course of passage of the Punyam kasam kalva is through the poromboke lands of Aravasipattada. The adangal accounts show the bed and the bund of the channel as kalva bed (channel waste or poromboke)--see Exs. C, D and E. It is therefore clear that the lands through which the channel passes are the lands of Aravasipattada and it is through these lands that the channel was dug by the original owner, namely, the Rajah of Karvetnagar. Poromboke lands may be communal or non-communal poromboke. If they are communal poromboke the ryots have got certain rights of enjoyment over the lands; if they are non-communal poromboke, the proprietor has got powers of disposal over them. In any event, they appertain to the village in which they are situate. When the Rajah of Karvetnagar cut this channel through from the spring to the village of Punyam, did he part with such ownership as he had of the poromboke lands in Aravasipattada in favour of himself as the proprietor of Punyam or is it more consistent to presume that he retained with himself the rights over the communal lands and merely took the water along the channel that he dug up for the benefit of one of his three villages? Surely we cannot suppose that he intended to confer a benefit on himself as the proprietor of the Punyam village to the detriment of himself as the proprietor 0f Aravasipattada. The future possibility of the villages going into the hands of different persons might well have been present to his mind at the time the channel was dug up. Though the Rajah was the owner of the three villages he had different capacities as the proprietor of each one of those villages and the digging of the channel has to be viewed as if it was dug when the ownership vested in different persons.
6. Where a street vests in a municipality the subsoil does not vest in them (see Sundaram Iyer v. Municipal Council, Madura and the Secretary of State (1901) 12 M.L.J. 37 : I.L.R. 1925 Mad. 635.); where a pathway is dedicated the land under the pathway does not pass by reason by the dedication (see Maharajah of Pithapuram v. The Chairman, Municipal Council, Cocanada : (1936)71MLJ749 . The presumption of a lost grant or legal origin must be consistent with the enjoyment of the right in support of which the presumption has to be made; neither more nor less should be deemed to have been conferred or taken away. The same result is indicated by a reference to Section 13 of the Easements Act. When the Rajah of Karvetnagar transferred the Punyam village by mortgage an easement in the transferor's other immovable property was necessary for enjoying the subject of the transfer and this means that the transferee could take thewater in the channel over the bed and within the bunds to his own village of Punyam. To make out the ownership of the entire channel with the bed and the bunds even within the limits of other villages the Punyam proprietor has to make out a grant from the proprietors of Aravasipattada. The fact that Aravasipattada and Samanthavada belonged at one time to the same proprietor as Punyam will not justify any presumption in favour of such a grant We can say nothing more than that the proprietors of Aravasipattada and Samanthavada parted only 'with such rights as were necessary for allowing the channel to pass through their lands.
7. Much was made of the fact that the bund of the channel sot only within the Punyam lands but also within the limits of the other villages was repaired from time to time by the Punyam people. This however is not of much evidentiary value because even if the Punyam ryots or proprietor had only a right to take the water in the channel to their lands it would still be their primary duty to keep the channel in good repair so that they could enjoy their rights effectively and without loss or wastage of the water flowing in the stream. As regards trees on the bunds we have the findings of the Courts below that while the plaintiff has not been able to show any single act of enjoyment the defendant has not been able to establish the possession set up by him. On the other hand it has been pointed out that except on a solitary occasion the real trouble has arisen only after the purchase of the Punyam village by the first defendant who asserted his rights to the trees on the bund of the stream in Aravasipattada village and got them auctioned, cut and removed.
8. I am of opinion for the reasons given above that the conclusion reached by the lower Courts is correct and the second appeal must be dismissed with costs. Leave to appeal refused.