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Sri Sri Sri Gajapathi Krishna Chandra Deo Garu, Zamindar of Nandigam Estate Vs. His Highness Sri Mirja Rajah Sri Pushpati Alakh Narayana Gajapathi Raju Maharaja Manya Sultan Bahadur Varu, Rajah of Vizianagram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1931Mad561; (1931)60MLJ662
AppellantSri Sri Sri Gajapathi Krishna Chandra Deo Garu, Zamindar of Nandigam Estate
RespondentHis Highness Sri Mirja Rajah Sri Pushpati Alakh Narayana Gajapathi Raju Maharaja Manya Sultan Bahadu
Cases ReferredWheldon v. Burrows
Excerpt:
- - after the estate was restored to the heirs of that zamindar the lank repairs began in 1910 and were completed in about 1913. in 1920 the plaintiff complained that the effect of the repairs was to flood a portion of his lands in the village of mallividu and this suit was filed in 1923 for the reliefs above stated. the result of it is that on the findings of the subordinate judge that the tank was the common property of the 1st and 2nd defendants, that the 1st defendant is not bound by anything which the court of wards did and has a subsisting right to repair the tank and restore it to the condition in which it was before the breach in 1878, the plaintiff could have no right to complain if the 1st defendant chose to-morrow to repair the tank by raising the bund to its original level.....kumaraswami sastri, j.1. second defendant is the appellant. this appeal arises out of a suit filed by the plaintiff who is the rajah of vizianagram against the 1st defendant who is the zamindar of pata tekkali and the 2nd defendant who is the zamindar of nandigam for an injunction restraining the defendants or either of them from restoring and improving the irrigation tank called the padmanabha sagaram or to construct new weirs at any portion of it so as to affect the rights of the plaintiff in the lands situate in mallividu and kallada villages, to direct them to remove the newly placed bund of padmanabha sagaram tank at the places where it was breached in 1878 and to remove the newly constructed surplus weir, or in the alternative for damages, which the plaintiff estimates at rs. 1,000.....
Judgment:

Kumaraswami Sastri, J.

1. Second defendant is the appellant. This appeal arises out of a suit filed by the plaintiff who is the Rajah of Vizianagram against the 1st defendant who is the Zamindar of Pata Tekkali and the 2nd defendant who is the Zamindar of Nandigam for an injunction restraining the defendants or either of them from restoring and improving the irrigation tank called the Padmanabha Sagaram or to construct new weirs at any portion of it so as to affect the rights of the plaintiff in the lands situate in Mallividu and Kallada villages, to direct them to remove the newly placed bund of Padmanabha Sagaram tank at the places where it was breached in 1878 and to remove the newly constructed surplus weir, or in the alternative for damages, which the plaintiff estimates at Rs. 1,000 per annum.

2. The facts leading to this appeal are as follows:--The estates of Tekkali and Nandigam formerly formed one estate known as the Tekkali Estate. The Padmanabha Sagaram tank was constructed about the year 1813 or so by a former proprietor of the estate in order to irrigate certain villages. The estate was partitioned in 1864 and became two estates, one known as Pata Tekkali which is now owned by the 1st defendant and the other known as Nandigam which now belongs to the 2nd defendant. In the year 1878 owing to abnormal rains the bund breached considerably and it was not capable of storing as much water as it used to do. The proprietor of the Nandigam Estate at that time got into debt and financial difficulties and the estate was subsequently taken over by the Court of Wards and managed. After the estate was restored to the heirs of that Zamindar the lank repairs began in 1910 and were completed in about 1913. In 1920 the plaintiff complained that the effect of the repairs was to flood a portion of his lands in the village of Mallividu and this suit was filed in 1923 for the reliefs above stated.

3. When the Nandigam Estate was managed by the Court of Wards, they resolved to sell some villages in the estate in order to discharge the debts incurred by the Zamindar and put up for sale five villages. These villages were purchased in auction by the Rajah of Vizianagram on the 12th of June, 1899. Two of the villages with which we are concerned were Kallada and Mallividu.

4. The plaintiff's case is that by reason of the repairs and the erection of the surplus weir 74 acres 49 cents of his lands in Mallividu and 7 acres 30 cents of his lands in Kallada have been submerged and rendered unfit for cultivation. He states in his plaint that the Padmanabha Sagaram tank which bounds the village of Mallividu was a tank constructed in the beginning of the 19th Century to irrigate the lands of the 1st and 2nd defendants when the two estates were joint, that the estate became severed in 1864, that in 1878 the Padmanabha Sagaram tank was breached and was since abandoned as a tank by defendants 1 and 2 and remained in the same condition till 1913, that in 1912 there was a dispute between the plaintiff and the 2nd defendant regarding the eastern boundaries of Mallividu village and the Survey authorities fixed it by placing stones along the boundary as given to the plaintiff's predecessor-in-title by the sale to him in 1899, that when the villages were purchased by the plaintiff's predecessor-in-title the tank bed of the Padmanabha Sagaram was restricted and that defendants 1 and 2, having abandoned the tank in 1878 and allowed it to continue in that state till 1913, when they not only restored the tank to its condition previous to 1878 but considerably raised the bund and constructed a surplus weir, lost all their rights to restore the tank to its original condition, thereby affecting the rights of the plaintiff as they existed in 1899, the year of the purchase.

5. The 1st defendant filed a written statement stating that the Padmanabha Sagaram tank is the joint property of himself and the 2nd defendant, that the 1st defendant has his own right to take water from the Sagaram in certain proportions in certain places jointly with the 2nd defendant, and to his exclusion in other places and that it is not true that the tank breached in 1878 or was abandoned from that time or continued in a ruined state till 1913. He says that as a matter of fact the tank was being repaired in the interval every now and then as occasion arose, that he has not lost his right to restore the tank to its original condition, that he was no party to the sale by the Court of Wards or to the proceedings before the Survey Officer and that he is not bound by them. He admits that the tank was repaired in 1913, but denies that the bund was raised to a height more than what it was previously and that the plaintiff has suffered any damages, and states that even if the plaintiff has suffered any damage he, the 1st defendant, is not liable for the same. He says that the lands referred to in the plaint have always been under submersion, that even more lands were being submerged, that owing to the collusion of the 2nd defendant with the plaintiff the 2nd defendant built a weir to the north of the tank bund and fewer lands than usual are now being submerged, that the new weir forms the subject-matter of dispute between him and the 2nd defendant, that the lands referred to in the plaint form part of the tank bed and that the plaintiff has no right to cultivate the same. He denies that the plaintiff has uninterrupted and open enjoyment as of right of the lands under the tank. He states that his rights are not barred by limitation.

6. The 2nd defendant filed a written statement admitting the breach of the tank in 1878 but denying that the tank was abandoned by the defendants, and alleging that it was being repaired from time to time. He states that the defendants never lost the right to repair the tank. He denies that the bed of the tank was restricted by the Survey Officers as alleged by the plaintiff and states that any act of the Survey Officers would not bind him. He states that he is not aware of any arrangement between the Court of Wards and the Rajah of Vizianagram and in any event it will not bind him, that it is not true that the tank bund has been raised or in any way altered beyond what it was before the breach, that the plaintiff has sustained no damage and even if he did the 2nd defendant is not responsible as he only restored the tank to its original condition, that the lands referred to by the plaintiff were, as a matter of fact, subject to submersion from time immemorial and formed part of the bed of the Padmanabha Sagaram tank, that the plaintiff cannot now question the right of the defendants as those lands were always subject to submersion except when the tank was not full of water, that the defendant's right to repair the tank is not barred by limitation, that though one of the surplus weirs was newly constructed, there was formerly a weir by the side of the newly constructed weir and that the new construction does not cause any damage to the plaintiff. ,

7. The Subordinate Judge held that the defendants never abandoned the Padmanabha Sagaram tank but that temporary repairs were being executed, that both the defendants were jointly entitled to the tank and the water stored therein and that they have not lost their right to repair the tank. As regards the repairs which were actually effected, the case of the plaintiff that the bund was raised to a higher level than it was before was abandoned. As a matter of fact, it was found that the bund was not raised but that it was lower than the original level. He also found on the evidence that 76 acres 83 cents in Mallividu village were liable to submersion and were being actually submerged till 1878 before the tank was breached but after the breach the waterspread became restricted, that they were not under submersion for some time prior to 1899 and that after the purchase by the Vizianagram Estate in 1899 the area submerged varied, the variation depending on the rainfall. He finds that no lands were submerged in Kallada village. So far as the 1st defendant was concerned, he was of opinion that the 1st defendant was not a party to the sale or the survey proceedings between the plaintiff and the 2nd defendant and that the plaintiff is not entitled to any relief against the 1st defendant. As regards the issues as to the right of the plaintiff to the Padmanabha Sagaram tank and whether the plaintiff is entitled to have the bund of the tank lowered and the subsequent weir removed he states that they were not pressed. He was however of opinion that the 2nd defendant had no right to submerge the lands which were sold by the Court of Wards and that the plaintiff was entitled to question the submersion as no right to inundate was reserved by the Court of Wards at the date of the sale. In the result he gave a decree for the plaintiff for Rs. 600 damages for the years 1921, 1922 and 1923. He gave an injunction, against the 2nd defendant restraining him from increasing the height of the bund of the tank or of the surplus weirs or of both and refused the other reliefs claimed by the plaintiff.

8. No appeal or memorandum of objections was filed by the plaintiff as regards that portion of the decree which dismissed the suit against the 1st defendant so that that portion of the decree has become conclusive and final. The result of it is that on the findings of the Subordinate judge that the tank was the common property of the 1st and 2nd defendants, that the 1st defendant is not bound by anything which the Court of Wards did and has a subsisting right to repair the tank and restore it to the condition in which it was before the breach in 1878, the plaintiff could have no right to complain if the 1st defendant chose to-morrow to repair the tank by raising the bund to its original level and submerge all the lands which the plaintiff now complains are being submerged and rendered unfit for cultivation.

9. So far as the 2nd defendant (one of the joint owners) however is concerned a decree has been passed making him liable for damages for the restoration of the bund. [His Lordship discussed the evidence and concluded:]

10. I agree with the Subordinate Judge that there was no abandonment of the tank at any time either by the Tekkali or Nandigam proprietors. The bund was breached and though effective repairs were made only in 1912 and 1913, there was correspondence as to repairs which we have already referred to and the ryots were taking water from the tank though there was a very small quantity of water.

11. As regards the purchase by the plaintiff of the five villages referred to in the plaint including Mallividu and Kallada these villages originally belonged to the Nandigam Estate. The predecessor-in-title of the 2nd defendant had heavily encumbered the property. In order to discharge the debt the Court of Wards resolved to sell six villages by public auction.

12. [His Lordship referred to the sale by the Court of Wards in favour of the plaintiff, and the later survey proceedings wherein the disputes as to boundaries were decided and after discussing the report of the Commissioner as regards the effect of the restoration of the tank bund proceeded:]

13. On the findings of the Subordinate Judge which we accept, namely, that the Padmanabha Sagaram tank was common to both the defendants, that the tank was never abandoned, that prior to the breach in 1878 the lands now complained of were being submerged, that the sale by the Court of Wards included a portion of the tank bed and that the claim to restore the tank is not barred by limitation, the question is whether the plaintiff, who purchased a portion of the tank bed, is entitled to complain if the owners of the tank repaired the bund in such a manner as not to submerge any more lands than were submerged before the breach.

14. The ground on which the Subordinate Judge puts the liability on the 2nd defendant is that the Court of Wards having sold the property and the 2nd defendant being bound by the sale the plaintiff is entitled to question the submersion as no right to inundate was reserved by the Court of Wards who acted as guardian of the 2nd defendant. We do not think it necessary that any rights should be reserved.

15. It is clear that when the Tekkali Estate was partitioned into two estates--Pata Tekkali and Nandigam--and this tank was kept as a common tank irrigating the villages belonging to both the proprietors, Nandigam Estate could not have objected if Pata Tekkali had repaired the breach on the ground that some of his lands were being submerged.

16. The sale by the Court of Wards representing the Nandigam Estate to the Rajah of Vizianagram of the five villages could not possibly affect the rights of Pata Tekkali. The only question is whether as between Nandigam and the purchaser, the Rajah of Vizianagram, Nandigam lost his right to repair the breach' and restore the tank to its original condition.

17. So far as the Indian Law is concerned, no reservation is necessary where there is a conveyance or partition of property. The Easements Act follows the law as laid down in Pyer v. Carter (1857) 1 H. & N. 916 : 156 E.R. 1472, which was referred to with approval by Mellish, L.J., in Watts v. Kelson (1871) L.R. 6 Ch.A. 166 and does not adopt the law as laid down in Wheldon v. Burrows (1879) 12 Ch.D. 31 that in the case of a grantor express reservation was necessary with certain exceptions as in the case of ways of necessity while in the case of a grantee of part of a tenement all those continuous and apparent easements over the other part of the tenement which are necessary for the enjoyment of the part granted and have been hitherto used therewith would pass as a general rule.

18. The mere fact that the Court of Wards sold a part of the Nandigam Estate which included this tank bed would not of itself take away the right of the Zamindar who was the owner of the rest of the property to repair the tank unless there was any negligence in the repairs--and it is not suggested here that there was any negligence--or unless he raised the bund higher than it was when the tank was breached. The mere fact that he stored water in this tank after repairing the bund and that the water inundated the plaintiff's land which was in the tank bed would not give the plaintiff a right to sue for damages.

19. Reference has been made by the respondent to the English Law on the subject of storing water as laid down in Rylands v. Fletcher (1868) L.R. 3 H.L. 330 and the other cases and to the observations of Blackburn, J., where the learned Judge lays down the rule governing those cases as follows:

We think that the true rule of law is, that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his own peril and if he does not do so, he is prima, facie answerable for all the damage which is the natural consequence of its escape.

20. Reference is also made to the cases where a person by artificially raising the surface of his own land causes water, even though arising from natural rainfall, to pass to his neighbour's land, and interferes with his enjoyment.

21. I think these principles are inapplicable to irrigation tanks in India which have been in existence for several years. The Fifth Report shows that when Permanent Settlements were made instructions were given by the East India Company as to tanks in existence and also new tanks that may be constructed (page 184, para. 59) and there is no reason to draw any distinction between tanks in existence at the time of the Permanent Settlement and that constructed afterwards. Their Lordships of the Privy Council in the case I shall refer to presently speak of the duty 'of maintaining existing tanks and of constructing new ones.' The Madras Estates Land Act also casts on the landlord the duty of repairing tanks in existence without any reference as to when they were constructed.

22. The law on the subject has been clearly settled by the decision of their Lordships of the Privy Council in Madras Railway Company v. Zamindar of Carvatenagrum , where it has been held that the storing of water for agricultural purposes is a natural and lawful user and is not actionable for damages done unless there was negligence proved. In dealing with this point their Lordships of the Privy Council observed:

The tanks are ancient, and formed part of what may be termed a national system of irrigation, recognised by Hindu and Mahomedan Law, by regulations of the East India Company, and by experience older than history, as essential to the welfare, and, indeed, to the existence of a large portion of the population of India. The public duty of maintaining existing tanks, and of constructing new ones in many places, was originally undertaken by the Government of India, and upon the settlement of the country has, in many instances, devolved on Zamindars, of whom the defendant is one. The Zamindars have no power to do away with these tanks, in the maintenance of which large numbers of people are interested, but are charged under Indian Law, by reason of their tenure, with the duty of preserving and repairing them. From this statement of facts referred to in the judgment of the High Court, and vouched by history and common knowledge, if becomes apparent that the defendant in this case is in a very different position from the defendants in Fletcher v. Rylands (1868) L.R. 3 H.L. 330.

In that case the defendants, for their own purposes, brought upon their land and there accumulated a large quantity of water by what is termed by Lord Cairns 'a non-natural use' of their land. They were under no obligation, public or private, to make or to maintain the reservoir; no rights in it had been acquired by other persons, and they could have removed it if they had thought fit. The rights and liabilities of the defendant appear to their Lordships much more analogous to those of persons of corporations on whom statutory powers have been conferred and statutory duties imposed. The duty of the defendant to maintain the tanks appears to their Lordships a duty of very much the same description as that of the Railway Company to maintain their railway.

23. Under the Madras Estates Land Act the tenants can compel a landlord to repair a tank which is the source of irrigation by a proper application to the Collector.

24. There can be little doubt that this tank which was built about 1813 was inundating the lands now in question till the breach in 1878. The plaintiff purchased a portion of the bed of that tank. When he purchased that portion, owing to the tank not having been repaired, the bed was over-grown with trees and shrubs. From the very nature of things he must have known that if the bund was repaired, the land would be flooded. No representation was made to him that the owners would not repair the bund. It is no doubt true that from 1878 to 1900 the tank was in a state of disrepair but the right to repair was never abandoned. Attempts were being made to restore the tank by the owner of Pata Tekkali and the only thing that stood in the way was that the Court of Wards, owing to the Zamindar of Nandigam Estate having mortgaged the lands and encumbered the estate, did not think it prudent to embark upon an expense about the repair as any benefit that would arise would be enjoyed by the mortgagees. It cannot be said that there was anything in the case which would have reasonably led the Vizianagram Zamindar (the purchaser) to infer that there was any abandonment by the Nandigam Estate. It seems to me to be clear that where a person buys property which is a portion of a tank bed he must know that the bed is liable to submersion if the owner of the tank should repair it. And having regard to the sale proclamation and to the price which was paid for this village I have little doubt that there would have been no representation that the tank would not be repaired and that these lands could be converted by the purchaser into cultivable wet lands.

25. The mere fact that the bund was not repaired from 1878 to 1910 would not amount to an abandonment of any easements or rights as mere non-user is not sufficient.

26. Chapter V of the Easements Act deals with the extinction, suspension and revival of easements. Section 38 says that extinction may be by a release by the dominant owner, expressly or impliedly, in favour of the servient owner, and Explanation II to the section distinctly says that mere non-user of an easement is not an implied release within the meaning of the section.

27. Section 47 States that a continuous easement is extinguished when it ceases to be totally enjoyed as such for an unbroken period of twenty years and that a discontinuous easement is extinguished when for a like period it has not been enjoyed as such. Such period shall be reckoned in the case of a continuous easement from the day on which its enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner, and, in the case of a discontinuous easement, from the flay on 'which it was last enjoyed by any person as dominant owner.

28. Treating the case as one of easement, the right to flood the lands by storing water in an irrigation tank is a continuous easement as after the tank is constructed no further act is necessary. Rain when it falls fills the tank and the tank overflows. It is analogous to the case of a man building a house and putting up a window. It is also an apparent easement.

29. I am of opinion that the decision of the Subordinate Judge awarding damages or granting an injunction against the 2nd defendant cannot be supported.

30. It is unnecessary, in the view I take of the case, to consider the further question as to whether on the allegations in the plaint that both the defendants repaired the tank and the decision of the Judge that the 1st defendant is not liable for damages and that the sale by the Court of Wards is not binding on him, no damages can be awarded against the 2nd defendant or the further argument that the Court of Wards when they sold the property could not have entered into any covenant the effect of which would be to throw a personal liability on the Zamindar and prevent him from using the tank as an irrigation tank.

31. I would reverse the decree of the Subordinate Judge and dismiss the plaintiff's suit with costs of the 2nd defendant throughout. The memorandum of objections is also dismissed with costs.

32. It is unnecessary in this case to decide anything as to the rights of the parties should the bund be further raised.

Reilly, J.

33. It is admitted that the Padmanabha Sagaram was constructed not later than 1833, at a time when the present Fata Tekkali and Nandigam Estates were parts of one Estate, the original Tekkali Estate, and that, as the bund was then constructed, the water in the tank when full covered considerable areas in several villages, including Mallividu and Kallada, with which we are concerned in this case. It is also admitted that a very serious breach was made in the tank bund by a flood in 1878 and that breach was never completely and thoroughly repaired until 1913. The allegation that in the repairs of 1913 the original height of the weir was raised has been given up. Indeed the Commissioner's report and plan disprove it. It is clear therefore that no more land has been submerged in consequence of the repairs of 1913 than was submerged by the. tank as originally constructed. The plaintiff's land in Mallividu and Kallada, so far as it has been submerged in consequence of the repairs of 1913, is within the original tank-bed. The plaintiff in 1899 bought the Mallividu and Kallada villages from the Nandigam Estate, and included in his purchase was part of the tank-bed, though that part was not being submerged at that time in consequence of the breach of the tank-bund.

34. Mr. Jagannadha Das for defendant 2, the Zamindar of Nandigam, in one part of his argument tried to persuade us that, when Nandigam sold the two villages to the plaintiff, an easement to submerge the parts of them within the tank-bed was implicitly reserved to Nandigam by Clauses (c) and (d) of Section 13 of the Easements Act. I have no doubt that neither of those clauses can apply to that sale. The right of submersion could not be an easement of necessity under Clause (c) in such circumstances; and it may be remarked that for 35 years, from 1878 to 1913, the Zamindar of Nandigam enjoyed his estate without the benefit of it. Nor could the right come within Clause (d) as necessary for the enjoyment of the Nandigam Estate as it was enjoyed at the time of the sale in 1899, when the bund had been breached for 21 years. These contentions are in no way essential for this appeal; but they appear to have, been put forward because Nandigam is anxious for some reason to succeed in this appeal without, if possible, winning a victory for Pata Tekkali also.

35. Those two estates were formed by partition of the Tekkali Estate in 1864. That was more than 30 years after the tank was constructed. It is admitted that the water of the tank has been used for villages of both Estates since the partition and was intended under the partition so to be used. The learned Subordinate judge in his judgment has made inconsistent statements about the ownership of the tank since the partition. In para, 25 he says that 'there is absolutely no evidence to show that the Tekkali Estate has any right as owner or joint-owner to any portion of the Padmanabha Sagaram tank-bed.' But in the previous paragraph he had recorded a finding that 'the tank belongs to defendants 1 and 2' and has described them as the 'owners thereof.' No means of reconciling these statements has been suggested to us. But it is admitted that the bund of the tank and the part of the waterspread nearest to the bund--a very considerable area--were left common to the two estates at the partition. In the plaint it is alleged that the Zamindars of Pata Tekkali and Nandigam abandoned the tank in 1878 and that they restored the bund in 1913, and it is pleaded that the tank-bad was restricted at the time of the plaintiff's purchase in 1899. Defendant 1 in his written statement definitely asserted that the tank belonged to both defendants. Defendant 2 said nothing on this point in his written statement. On the pleadings it is clear that all parties proceeded on the basis that the tank bund and the lower part of the tank-bed, whatever its present extent might be, were owned in common by the two defendants. There is no reason to suppose that that is not still the position. In the latter part of his argument Mr. Jagannadha Das said that he admitted this 'for the purpose of this case.' It is not necessary to consider now whether anything is gained for Nandigam by putting the admission in that guarded way, as at any rate it agrees with the pleadings of both the plaintiff and defendant 1 and leaves no dispute on the question in this case.

36. The position therefore is that at the partition of 1864 the tank-bund and a considerable part of the bed of the tank were kept common to the two Estates, and of the rest of the original Tekkali Estate, some villages were allotted to Pata Tekkali and others, including Mallividu and Kallada, which embraced part of the bed of the tank--the upper part which would not be submerged except when the tank was full or nearly full-were allotted to Nandigam. That being so, the important question appears to me to be whether at the partition of 1864 any right to submerge that upper part of the tank-bed in Mallividu and Kallada was reserved by way of easement in favour of Pata Tekkali and Nandigam, the tenants-in-common of the bund of the tank and the lower part of its bed. If such an easement was then reserved, it could not be affected by the sale of Mallividu and Kallada to the plaintiff by Nandigam and, unless it has been lost, it still subsists in favour of Pata Tekkali and Nandigam.

37. Such an easement would be a continuous one in the technical sense and also an. apparent one, as its extent could be calculated easily from the height of the weir by a competent person. It would also have been necessary for the enjoyment of the tank-bund and the lower part of the tank-bed as they were enjoyed at the time of the partition. If the partition has been a simple one, by the terms of which Mallividu and Kallada fell to the Nandigam Estate and the tank-bund and the lower part of the tank-bed to Pata Tekkali, there is no doubt that such an easement would have been created by the partition in favour of Pata Tekkali. That is the principle of Section 13 (f) of the Easements Act; and, though that Act was not in force in 1864, the time of the partition, the Act made no change in the law in that respect--see Pearson v. Spencer (1863) 3 B. & S 761 : 122 E.R. 285, Alien v. Taylor (1880) 16 Ch.D. 355 Phillips v. Low (1892) 1 Ch. 47, Nicholas v. Nicholas (1900) 81 L.T. 811 and Purshotam Sakharam v. Durgoji Tukaram I.L.R. (1890) B. 452. Authorities indeed are hardly required on that point, as in such a partition each party is in turn grantee, and the ordinary rule applies, that such an easement goes by implication with the grant. Here the position is not so simple, as, though Nandigam was grantee in the case of Mallividu, Kallada and other villages and Pata Tekkali was grantee in respect of another set of villages, both the grantors, Pata Tekkali and Nandigam, retained the tank-bund and the lower part of the tank-bed in common. So far as Mallividu and Kallada were concerned, Nandigam was grantee and Pata Tekkali was grantor; but both grantor and grantee retained the tank-bund and the lower part of the tank-bed. Did that transaction create an easement in favour of Nandigam and Pata Tekkali over the part of the tank-bed within the limits of Mallividu and Kallada? Unfortunately the partition deed has not been produced. But we know that for 14 years after the partition--until the breach was made in 1878--the part of the tank-bed within the limits of Mallividu and Kallada was submerged whenever the tank was full. We also know that the water of the tank was required, and is still required, for villages below the tank both in Nandigam and in Pata Tekkali. Nandigam is as much interested now, and was as much interested at the time of the partition, in the right to submerge parts of Mallividu and Kallada as Pata Tekkali. In the circumstances it appears from the very nature of the transaction, by which, while the rest of the original Tekkali Estate was divided, this tank-bund and the lower part of the tank-bed were reserved to be held in common, that the intention of the parties must have been to preserve in the interests of both the right to submerge the upper part of the tank-bed in Mallividu and Kallada whenever there was a full supply to the tank. This is not a case of setting up an implied reservation in favour of the grantors against the doctrine of Wheldon v. Burrows (1879) 12 Ch.D. 31. It is rather on examination Something implied in favour of the grantees. Nandigam and Pata Tekkali granted to each other their rights in certain villages below the tank, which were then irrigated by the tank. That implied in favour of each grantee the right to water from the tank for irrigating the villages below the tank which fell to his share, and that right could not be enjoyed to the extent it was then enjoyed unless the grantors together retained the right to submerge the parts of Mallividu and Kallada which were within the tank-bed. By the very nature of the transaction therefore the grant of Pata Tekkali's interest in Mallividu and Kallada to Nandigam was subject to that easement being created in favour of both Nandigam and Pata Tekkali.

38. If that is the right view of the transaction--and so it appears to me--the rest of the case is simple. Nandigam could not affect that easement by the sale to the plaintiff in 1899. Nor is the continuance of the easement affected by the fact that it was not used from 1878 to 1913, while the tank-bund was breached. Under Section 47 of the Easements Act non-user does not extinguish a continuous easement until it has lasted for 20 years from the day on which enjoyment was obstructed by the servient owner or made impossible by the dominant owner. It is not suggested that Nandigam or Tekkali ever did anything to make their enjoyment of the easement impossible or that the plaintiff ever obstructed their enjoyment. On the contrary the plaintiff did not even bring this suit until 10 years after the breach had been closed and use of the easement had begun again. I agree that the plaintiff can get no relief in this suit.

39. It was represented to us at one stage for the plaintiff that, if the submersion of land in Mallividu were allowed to continue, he would be very hardly used as he had bought that village at a high price believing the land submerged to be cultivable. We could not decide the case on any such consideration. But it is satisfactory to know that there is no basis for the plaintiff's supposed grievance. As he bought five villages, including Mallividu and Kallada, in auction for a lump sum we do not know what he paid for Mallividu. But the sale notification shows that of the whole village only a small fraction was represented to be cultivable land, and the explanation of that no doubt is that a large part of the village was, as any one could ascertain, liable to submersion if the tank-bund was repaired.

40. I agree that this appeal should be allowed and the suit dismissed with costs of defendant 2 in both Courts and that the Memorandum of Objections also should be dismissed with costs. Defendant 1 has not appealed against the order that he should bear his own costs in the Subordinate Judge's Court.


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