1. It is found that the plaintiff, a Government raiyat, has suffered damage by reason of the negligence of the defendant, a. revenue officer of Government, in causing the Government channel from which the plaintiff's land derives its supply of water to be closed: before the date on which it ought to be closed.
2. These are the facts found by the District Munsif and the District Judge does not express any dissent. It must be taken that there was no malice on the defendant's part and no intention to harm the plaintiff. It was part of the defendant's duty as Tahsildar to see that the channel was closed at a certain date, but he made the mistake of closing it fifteen days too soon.
3. On these facts the question is whether the plaintiff can maintain an action for damages against the defendant. In support of the judgment Mr. Desikachariar contends that the plaintiff's right to the water is in the nature of an easement, and that the plaintiff has a right of action against any person who disturbs it. He cites the case of Kistna Ayyan v. Venkatachella Mudali 7 M.H.C.R. 60. That case appears to us to affirm the very proposition which was denied on behalf of the plaintiff and affirmed on behalf of the defendant. Innes, J., in the course of his judgment, shows how, having regard to the relation between Government and its raiyats, there can be no question of easement and places on the footing of contract the right to a supply of water, which a raiyat occupying wet lands enjoys. In Bamachandra v. Narayanasami I.L.R. 16 Mad. 333, where this case was followed, damages were given against the raiyats on whose petition the diversion complained of was made, but the ground of the defendant's liability is not explained. The plaintiff's right being founded in contract it follows that in case of improper withholding of water he may have his action against Government, but he has none against the defendant by whom no legal injury has been committed, He is in exactly the same position as a householder whose supply of gas or water has been out off by the negligence of a servant of the company which contracted to supply him with gas or water. He has his remedy against the company and not against the servant. The plaintiff has failed to show that any right of property has been infringed by the defendant, not has he proved the malicious intention on the defendant's part which, if it had existed, might possibly have given him a right of action.
4. The appeal must be allowed and the suit dismissed with all costs.