1. The plaintiffs in this suit ask for a declaration of their exclusive right to the repair of a tank known by the name of the Kalkattu uruni in the village of Karakudi at their exclusive cost, and that the defendants be restrained by perpetual injunction from entering into the uruni for the purpose of conducting repairs; that the plaintiff's possession of the uruni for the purpose of carrying on repairs in their own right be confirmed; and that the defendants be ordered to pay plaintiffs Rs. 350 to restore the uruni to its former condition.
2. Plaintiff's set out in their plaint that their ancestors originally dug and constructed this tank with the consent of Miras Ambala-gars (headmen) of the village, and that, therefore, he and his descendants became hereditary Hakdars (or rightful owners) of the said uruni, and that they (including the plaintiffs) have ever since maintained the uruni charity by constructing stone walls round it and by digging supply and surplus channels, building flights of steps, building a large mattam on the western bank of the uruni, and by laying out a flower garden open to the public; that in 1842 a dispute arose between the plaintiffs and the defendants in which the action of the defendants in interfering with the uruni was held to be wrongful, that on the 2nd September 1842 a kararnama was executed by the two parties before the Collector to the effect that all the tanks and urunis of the Karakudi Ilaka Nagarattars should henceforward be common to the whole community of Nagarattars (townsfolk) to which plaintiffs and defendants belong; but that the repairs should be made by the Hakdars who have right to the uruni respectively by virtue of their ancestors having originally constructed the same; that the terms of the kararnama were, however, abandoned, and plaintiffs and their ancestors have since that date retained exclusive control of the uruni and carried on repairs at their own cost; that in 1878 they proceeded to make repairs, when defendants interfered and wrongfully dug up and removed the stones forming one of the flights of steps of the south bank of the said uruni and heaped up several bandy loads of earth and mud in the midst of the uruni on pretence of-making repairs themselves, as if they possessed right to make repairs independently of the plaintiffs.
3. Defendants 2 to 4 and 6 and 7 in their written statement deny that the luruni belongs to plaintiffs in the manner asserted by them, and contend that it was originally constructed for charity by a female of the caste of Kalkattu Yadayars, and, on default of heirs to her, it became property common to the Nattars (country-folk) and Nagarattars of Karakudi; that it has all along remained in. the common enjoyment of Nattars and Nagarattars, and that the latter, including plaintiff's and defendants, defrayed all the costs attending ordinary repairs, the income from different sources such as trees, shops, fisheries, being expended on account of Koppudaya Nayakiamman Kovil, situate near the uruni and belonging to both Nattars and Nagrattars; but that, though the uruni was thus common, the plaintiffs and defendants both built certain steps to the uruni prior to 1842 for charity; that of the two sets of steps on. the east side, the plaintiffs' ancestors built the northern set, and the ancestors of the fifteenth defendant the southern; that of the two steps on the south side, the western one was built by plaintiffs' ancestors, and the eastern one by the ancestors of defendants 1 to 7; that prior to 1842 the plaintiffs' ancestors built one flight of steps on the west side of the uruni and one on the north side of it; that after the year 1850 plaintiff's built a small flight of steps near the southwest corner, a sluice near the north-west corner, and a vangupaditurai at the south-east corner of the two sets of steps built by defendants; that each is entitled to look after his own sets of structures; and that the agreement of 1842 manifests that plaintiffs' claim to an exclusive right is not maintainable.
4. Defendants 8 to 13 in a separate written statement supported the contentions of defendants 2 to 4 and 6 and 7, but said they had nothing to do with the kararnama in 1842. They claimed that the mirasi in dispute was common property. The fifteenth defendant supported the statements of defendants 8 to 13 and claimed a flight of steps on the east side as having been constructed by his ancestor, Karuppatti Mayappan Chetti. The following issues were recorded ;--
I. Whether the 'uruni' in dispute belongs to the plaintiff's in the manner stated by them, or whether it is the common private property of the villagers ?
II. Whether the flight of steps which defendants 1 to 4 and 6 and 7 allege as having been constructed by their ancestors was so constructed, or was it constructed by the ancestors of the plaintiffs ?
III. Whether the flight of steps which the fifteenth defendant claims as having been constructed by his ancestors was so constructed, or was it constructed by the ancestors of the plaintiffs ?
IV. Whether the right of conservancy of the steps exists in the parties that constructed them, or that right resides in the village community ?
V. Whether the plaintiffs are entitled to any relief, and, if so, to what relief ?
5. The Subordinate Judge was of opinion that plaintiff's, since the. date of the kararnama in 1842, had had the exclusive superinten- denoe of the tank in dispute, and that the other villagers of Karakudi, whether Nattars or Nagarattars, had had nothing to do with it; that during the thirty years since 1842 plaintiff's had done everthing for the conservation of the tank, while defendants had not lifted a finger to assist in its conservation. He held, therefore, on the first issue that plaintiffs had a right to conserve and improve the tank in question, they having exclusively dealt with it for more than thirty years, and that it is not a common property in the sense that any one can interefere with it, even to improve it without the consent of the plaintiffs.
6. The second and third issues were decided by him in accordance with the contentions of the defendants, there being no evidence to show that plaintiffs constructed the flights of steps claimed by the defendants to have been constructed by them. On the fourth issue, he found against defendants on the ground that they had failed to establish that they had, since 1842, conserved the steps constructed by their ancestors. He disallowed the damages claimed, but granted the perpetual injunction.
7. Appeal is made by the first and 19 other defendants on the grounds that plaintiffs ought not to have been held entitled to the relief prayed; that the finding that the plaintiffs have the exclusive right to conserve and improve the tank including the two flights of steps in dispute is against the weight of evidence and contrary to law; that the Subordinate Judge is wrong in supposing that the right sought to be established by the plaintiffs can be acquired as an easement, and that the right of the original founder to conserve the flights of steps in question could be lost by non-exercise of it for a length of time; that the Subordinate Judge should not have issued the injunction to prevent the defendants entering the uruni to conduct repairs, and should not have declared that the plaintiffs have the sole right to repair the uruni at their exclusive costs; also that certain accounts specified ought not to have been admitted in evidence.
8. The plaintiffs do not set out in their plaint that there has been a grant to their ancestors of the area now occupied by the tank. What is stated is that their ancestor was permitted by the Miras Ambalagar, or headman of the village, to dig the tank. They assert that upon digging and constructing the tank, he and his descendants became the hereditary Hakdars of it, which is tantamount to saying that the State has granted it to them or tacitly recognised their right to what must have been State property. But it is apparent not only from the kararnama in 1842, but also from the proceedings in 1878 on the charge of trespass and from the oral evidence in the case, that plaintiffs have no exclusive property in the tank and have never attempted to exclude and could not exclude the defendants or the rest of the public from the use of it or of any portion of it. The tank is a public tank, to every part of which the public freely resort.
9. The evidence in the case shows, as is found by the Subordinate Judge, that since the formation of the tank, members of the plaintiffs' family have from time to time built steps and other masonry structures on, to, and for the use of the tank, and that two other sets of steps attached to the tank on its east and south sides were built on to it by some of the defendants, viz., that on the south side at the south-east angle by defendants 2, 3, 4, and 7, and that on the east side near the south-east angle by fifteenth defendant. The Subordinate Judge also finds that by the kararnama executed in 1842, all the tanks in the village were to be recognised as common property, and that each of these contending parties was thenceforward to execute repairs to the portions constructed by them respectively.
10. The kararnama no doubt recognises that all the urunies or tanks were for the future to be regarded as common, i.e., public property. The dispute then was concerning the very tank now in question, and the settlement by the kararnama had special reference to it. It seems hardly correct, however, to say that the kararnama provided that each of the contending parties should thenceforward be at liberty to execute repairs to the portions constructed by them respectively. What was provided was that in future on the occasions of removing the mud from the uruni and doing other repairs, all the Nagarattars should collect the money in common and hand over the said money to the person who may be in management as the original proprietor of the uruni and have the works done and adjust the accounts in common. The agreement bound those taking part in it to contribute to the common expenses. But it seems to have left undetermined who was the proprietor referred to. It may possibly be that at the time plaintiff's were recognised as occupying that position whether in consequence of their ancestors having dug the tank or from their family having done more to the tank than others. But this is left uncertain, and the contention of the defendants now is that plaintiffs have no more right in the tank than others, and defendants 2 to 4 and 6 and 7 allege that each party is entitled to manage and look after his own special structures, apparently putting upon the kararnama of 1842 the same construction as that placed upon it by the Subordinate Judge, which, as pointed out, appears to be incorrect.
11. Plaintiff's certainly have not established any proprietary right in the tank. The site of the tank was admittedly State property, which was not granted to plaintiffs' ancestor by the State, but on which they were permitted, if the evidence be true, to spend money for the charitable purpose of forming a tank. From a charitable action of this nature no right of property in the object on which money or labour is expended accrues to the person who expends it.
12. From their own statement of the case, therefore, plaintiffs cannot claim to be the proprietors intended by the kararnama if the word 'proprietor' is to be understood in its literal sense. But assuming that the more limited sense of manager or superintendent be intended--a position which from document XI it seems very probable plaintiffs' ancestors filled--still there seems ground for thinking that the agreement was intended to be confined to the cleaning out the mud from the waterspread of the tank, and not to have reference to matters not embraced in the cause of dispute which arose out of defendants' party interfering with plaintiffs' party in cleaning out the tank.
13. If, however, it extended to repairs of the masonry works as well, then such of the present defendants as were at that time represented by the signatories to the kararnama would perhaps be bound to contribute to the expense of the repairs to be made by the superintendent and to abstain from themselves interfering with repairs even of their own masonry works.
14. But I think that the kararnama could not have been intended to apply to-anything more than the mere cleaning out of the tank; and this was the construction put upon it in 1878 by the Second-class Magistrate. Probably it did not occur to either party at that time that the masonry structures might eventually need repair, and it is at all events improbable that the defendants' party in 1842 would be willing to relinquish their right to interfere further with the masonry steps they had constructed in such keen competition with plaintiffs. Then, if we confine the terms of the kararnama of 1842 to the mere cleansing of the tank and the mud work of its banks, have the plaintiffs shown cause for the injunction they seek as against those of the defendants who may be bound by it, on the ground that in August 1878 they interrupted plaintiffs in making repairs and heaped up earth in the bed of the tank with the intention of making repairs themselves '? Plaintiffs now deny all right of the defendants in the tank, even the right of contributing to the expenses of the repairs, on the ground that the terms of the kararnama were abandoned and that plaintiffs have since had exclusive control. This position proceeds on the assertion that the defendants have, since the date of the kararnama, ceased to have anything to do with cleansing or repairing the tank or contributing to the expense of doing this. The evidence is certainly in favour of the plaintiffs having taken upon themselves exclusively the duty of clearing out the tank, but it does not follow from this that they have acquired a right to exclude the defendants. It is not shown that the plaintiffs attempted to enforce the liability of defendants under the terms of the kararnama to contribute, and that the defendants refused to do so, and from the mere fact that defendants did not contribute, no inference could be fairly drawn that they had abandoned their common right in. the tank as recognised by the kararnama.
15. The contention some time before 1878 was such that the plaintiffs would certainly not have been willing to receive contributions from the defendants for the repairs of the tank on the footing of the arrangement in 1842.
16. If then the kararnama was still in force when the act complained of by the plaintiffs was committed by defendants, and defendants were not allowed to contribute to the cleaning of the tank according to the terms of the kararnama, they would be driven to assert their rights and would be justified in ignoring the special terms of the kararnama which plaintiffs had ignored, and in falling back upon their rights prior to and recognised by the kararnama, and taking common part in the cleaning the tank and repairing, the mud work of the waterspread of the tank. Defendants in so' doing would not be acting in excess of their rights, as plaintiffs, apart from the kararnama, would have no right to insist on their exclusion from taking part in the cleansing of the tank in which they possess an equal right with plaintiffs.
17. Plaintiffs, therefore, would not be entitled to the injunction they seek on the ground of defendants' interference with the general repairs of the water-spread of the tank, confined to cleansing and mud works. Very few of the defendants are descendants of those who took part in the kararnama, and the other defendants could not of course be bound by it. Equally with the defendants who were represented by the signatories to the kararnama, they would be at liberty to take part in the general repairs of the tank confined to mud works; and the only question as regards them is whether plaintiffs have made out the exclusive right, to which they lay claim, to the repairing of the masonry works. Upon this point, therefore, the rights of the plaintiffs as against all the defendants may now be considered.
18. We were referred to Churton v. Freioen L.R. 2 Eq. 635 as showing that a right to the conservancy of property may exist apart from the right of property; but that case does not show this. It is an authority for the position that a portion of a building may be shown to be the property of one person, while the property in the rest of it resides in another, and in this respect it resembles the later case of The Duke of Norfolk v. Arbuthnot L.R. 4 C.P.D. 290 on App. 5 C.P.D. 390. The right to use and to repair the portion of the building, established in Churton v. Frewen L.R. 2 Eq. 635 was not held to have arisen from repeated acts of repairing, shown to have taken place from time to time for a long series of years, but it was held to have arisen out of the right of property of which the acts of repairing were evidence.
19. Here there neither is, nor can be, any right of property alleged in the tank itself. Nor does there appear to be any authority for saying that the construction of substantial adjuncts to the property of another can give the constructor a right of property in such adjuncts.
20. Plaintiff's, who were allowed to construct certain masonry works, must be presumed to have constructed these adjuncts to the tank by license of the original owner---the State--for the use of the public to whom the tank is dedicated; but this does not give plaintiffs any right to exclude others from interfering with the conservancy of the tank generally.
21. If it did so, then some of the defendants, 2 to 4 and 7, who constructed one set of steps, and defendant 15, who constructed another, would equally have a right to exclude plaintiff's from all part in the general conservancy of the tank.
22. It is not necessary to consider whether plaintiff's, who have always repaired the steps built at their exclusive cost, may not have a right to exclude others from interfering with the repairs of those particular sets of steps. The relief which they seek goes far beyond this; and as the defendants are not alleged to have interfered with any exclusive right which the plaintiff's may have to repair heir own steps, the plaintiff's have no ground in this respect for their application to the Court for an injunction.
23. The plaintiffs not having made out the right they contend for, I would reverse the decree of the Subordinate Judge and dismiss the suit, with costs throughout.