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Srinivasa Rau Saheb, Jagirdar of Arni Vs. the Secretary of State for India and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Judge
Reported in(1882)ILR5Mad226
AppellantSrinivasa Rau Saheb, Jagirdar of Arni
RespondentThe Secretary of State for India and ors.
Cases ReferredMaharani Rajroop Koer v. Syed Abdul Hossein L.R.
Excerpt:
.....the use of the water flowing through the channel to their village of devakipuram for a very long time as of right, and with the knowledge of the local officers of government, it may be that, having regard to all the facts established, the court might fairly presume a grant to the ancestors of the plaintiff by virtue of which the plaintiff may have inherited a right to the easement independently of act ix of 1871. that such a right may in certain circumstances exist independently of the statute was shown by the decision of the judicial committee of the privy council in the case of maharani rajroop koer v. and he complained of certain openings and obstructions made by the defendants in the channel by which his supply of water had been reduced. it was held that that being an artificial..........of suit. period of limitation. time when period begins to run._______________________________________________________________________________________________ for a declaration of right twelve years ... when the easement ceased to beto an easement. enjoyed by the plaintiff, or the persons on whose behalf he sues.]_______________________________________________________________________________________________2 [article 31:_______________________________________________________________________________________________description of suit. period of limitation. time when period begins to run._______________________________________________________________________________________________ for.....
Judgment:

1. This was a suit to establish the plaintiff's right to carry through a channel called Thone Madai the rain-water falling on a portion of the hill called Thone Madai to the Periyeri tank in the village of Devakipuram, and to recover Rs. 10, being the cost of closing two breaches made by the defendants on the eastern bank of that channel. The hill in question lies in the limits of the villages of Devakipuram, belonging to the plaintiff, and of Kalkaraipadi and Tuchampadi, belonging to Government, and the channel takes its rise in that part of the hill which is situated within the limits of the Devakipuram, and runs from a distance of 30 or 40 yards from its source, and until it enters Devakipuram again, through the Government villages of Kalkaraipadi and Tuchampadi. It was alleged by the plaintiff that his ancestors had exercised the right of taking water through the channel in question from time immemorial; that that part of Thone Madai channel which lay in the limits of Devakipuram was entered in the survey account as supplying channel No. 10; that on the 22nd April 1826 and the 29th July 1828 the second defendant's father and the ninth and tenth defendants' uncle executed agreements acknowledging that the said channel and the water flowing through it belonged to the village of Devakipuram; that since 1870 the defendants 2 to 16 had opened the bank of the channel and had taken water to the Kalkaraipadi and Tuchampadi tanks.

2. The defendants denied that the plaintiff's ancestors enjoyed the right of taking water through the Thone Madai channel from time immemorial or for any shorter time. The first defendant stated that the channel claimed by the plaintiff, from its head to boundary stone No. 5, was on Government land; that the right set up was in the nature of an easement; that the agreements alleged to have been entered into by former village officers could not, even if genuine, affect the rights of Government; and that the claim was barred by lapse of time.

3. The District Munsif held that the suit was governed by Article 1461 and not by Articles 312 and 323 of the Second Schedule of Act IX of 1871, and therefore not barred by limitation; but dismissed it on the ground that the documents relied on by the plaintiff in his plaint were not genuine; that the plaintiff had foiled to prove immemorial enjoyment; and that such enjoyment as his ancestors had was clandestine and collusive as against Government.

4. The District Judge, referring to the 27th Section of Act IX of 1871, the Limitation Act which was in force at the time at which this suit was brought, dismissed the suit because it was a suit to establish a right in the nature of an easement, and there had been no user for the two years next preceding the institution of the suit. On second appeal it has been contended that the suit -was not barred, the suit not having been based upon the statute.

5. The plaintiff in his plaint, after describing the manner in which the water used to flow through the channel in question to his village of Devakipuram, alleges: 'To this the plaintiff has long had an hereditary and customary right.' The plaintiff adduced evidence in support of this allegation, which the District Munsif did not believe. The District Judge has expressed no opinion on this part of the case; and we think that it deserves further consideration. If the evidence shows that the plaintiff's ancestors' have enjoyed the use of the water flowing through the channel to their village of Devakipuram for a very long time as of right, and with the knowledge of the local officers of Government, it may be that, having regard to all the facts established, the Court might fairly presume a grant to the ancestors of the plaintiff by virtue of which the plaintiff may have inherited a right to the easement independently of Act IX of 1871. That such a right may in certain circumstances exist independently of the statute was shown by the decision of the Judicial Committee of the Privy Council in the case of Maharani Rajroop Koer v. Syed Abdul Hossein L.R. 7 IndAp 240. In that case the plaintiff, a landowner, claimed a right to the uninterrupted flow of water through a certain channel, which had its course through the defendant's land, to his mehal; and he complained of certain openings and obstructions made by the defendants in the channel by which his supply of water had been reduced. The High Court of Calcutta understood the Subordinate Judge to find that those openings and obstructions had been made more than two years before the suit was brought, and on this ground the suit was dismissed, the Court observing that the plaintiff, in order to obtain relief in respect of the infringement of his easement, must come into Court within two years from the time at which such infringement took place. But that decision was reversed by the Judicial Committee; their Lordships holding that, even assuming that the obstructions had existed for more than two, but less than twenty years, no provision of the Statute of Limitations interfered with the plaintiff's right to recover. Their Lordships pointed out that Act IX of 1871 contained two sets of provisions, which were in their nature distinct; one relating to the limitation of suits, the other enacting a mode of acquiring ownership by possession or enjoyment. They held that the object of this last mentioned part of the statute was to make more easy the establishment of rights of this description, but that the statute was remedial, and neither prohibitory nor exhaustive. A man might acquire a title under it, but it did not exclude or interfere with other titles and modes of acquiring easements. And their Lordships thought that in that case there was abundant evidence upon the facts found for presuming the existence of a grant at some distant time. It was held that that being an artificial watercourse constructed on the land of another man at a distant period, and enjoyed down to the time of the obstructions complained of by the plaintiff and his ancestors, any Court which had to deal with the subject might, and, indeed, ought to refer such a long enjoyment to a legal origin, and under the circumstances to presume a grant or an agreement between the two owners.

6. We are not to be understood as deciding that similar circumstances exist in the present case. But the plaintiff in his plaint has not claimed any. statutory right; and we think that the suit has been erroneously dealt with as if it had been brought under Act IX of 1871. The decree of the District Judge must therefore be reversed, and the appeal must be remanded for disposal on its merits.

7. The costs will abide and follow the event and will be provided for in the final decree.

1 [Article 146 :

_______________________________________________________________________________________________

Description of suit. Period of limitation. Time when period begins to run.

_______________________________________________________________________________________________

For a declaration of right Twelve years ... When the easement ceased to be

to an easement. enjoyed by the plaintiff, or the

persons on whose behalf he sues.]

_______________________________________________________________________________________________

2 [Article 31:

_______________________________________________________________________________________________

Description of suit. Period of limitation. Time when period begins to run.

_______________________________________________________________________________________________

For obstructing a way or a

water-course. Two years ... The date of the obstruction.]

_______________________________________________________________________________________________

3 [Article 32:

_______________________________________________________________________________________________

Description of suit. Period of limitation. Time when period begins to run.

_______________________________________________________________________________________________

For diverting a water-

course. Two years ... The date of the diversion.]

_______________________________________________________________________________________________


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