1. This revision petition arises out of an order giving findings on three preliminary issues in a suit for an in-juaction restraining the defendant from doing certain acts with reference to his tanks over which the plaintiff claims a right of easement. The three issues are as follows:<
1. Whether the suit claim is not cognizable and triable by the municipal Courts and whether the same is determinable only by treaty between the British Government and H. E. H. the Nizam's Government.
2. Whether any cause of action arose within the territorial jurisdiction of this Court and whether this Court has jurisdiction.
3. Whether the reliefs are properly valued for purposes of jurisdiction and has this Court pecuniary jurisdiction to try this suit.
2. In order to determine these issues, it is necessary first to have a clear idea of the true nature of the plaint. The plaint as originally framed sought an injunction restraining the defendant from diverting the water flowing out of his tanks and from increasing the full tank level of those tanks, an injunction restraining him from diverting water to a newly dug channel, an injunction restraining him from closing the surplus weirs and diverting the water through a new canal into another tank and lastly a fixation of the full tank levels and the levels of the weirs of a number of the defendant's tanks. There was a long-fought battle on the court-fee question as affecting the jurisdiction of the District Munsif's Court in which the suit was filed. After the case had come up twice to this Court in revision, it was finally decided by the order of Krishnaswami Aiyangar, J., in C.R.P. No. 1318 of 1937 that the last prayer relating to the fixation of the levels had been properly deleted from the plaint and that the District Munsif would have to consider the question of jurisdiction on the footing of the plaint as thus amended.
3. It seems to me that this finally decides the question regarding the necessity for valuirlg the suit on the basis of the averments in the plaint as to the necessity for fixing the levels of the defendant's tanks. It is, however, contended for the first time in this Court that though the plaintiff has not prayed for a declaration of his right of easement, the suit is in substance one for a declaration and injunction and should be valued under Section 7(iv)(c) of the Court-Fees Act and not under Section 7(iv)(d) and it is desirable to decide this contention in the first instance. For, if Section 7(iv)(c) applies and a declaration is in substance and of necessity sought, the case would undoubtedly fall outside the jurisdiction of the District Munsif's Court, for the easements claimed operate over a large number of tanks and the injunctions sought will, according to the averments in the plaint, affect the income of the defendant to the extent of thousands of rupees annually, whereas the refusal of the injunction would have a proportionately adverse effect on the income of the plaintiff. Moreover, the decision of the question regarding the necessity for a declaration of the plaintiff's right has a material bearing on the first issue regarding the jurisdiction of the British Indian Court to try the suit.
4. I may observe that the anxiety of the plaintiff to pay the minimum court-fee on this suit has led to much avoidable litigation and has involved both parties in a great deal of entirely unnecessary expense. Such short-sighted parsimony is very ill-advised. The position is now complicated owing to the existence of a temporary injunction which would cease to operate if the plaint were returned for presentation to a Court of higher jurisdiction, so that the question of the frame of the suit is no longer one merely of court-fees and may have an important bearing on the practical position of the parties to the suit.
5. The plaintiff's case is that irrigation works in his occupation, situate within the Hyderabad State, receive their customary supply 6f water from the overflow of tanks belonging to the defendant and situate in British India and that the plaintiff has a right to require that the defendant should do nothing to the tanks in his possession which will adversely affect the customary flow of water to the tanks of the plaintiff. Consequently, he demands a series of injunctions restraining the defendant from carrying out projected works which, it is alleged, will endanger the customary flow of water to the plaintiff's tanks. Now, it is not disputed that the plaintiff is the occupier? of this estate in which the tanks which form the dominant tenement are situate. It is true that the defendant has put in issue the nature of the plaintiff's title to this estate. But seeing that a suit to establish a right of easement can be maintained by the occupier of the dominant tenement, it is difficult to see how any question as to the nature of the plaintiff's title in the estate which he occupies really arises. It is however necessary to determine whether rights of easements such as are claimed do exist in favour of the plaintiff's estate and the determination of these rights is undoubtedly a necessary preliminary to the grant or refusal of an injunction to protect those rights. The question is whether this determination of the plaintiff's rights is to be regarded merely as a finding on evidence forming the basis of the substantial relief of an injunction or whether it is to be regarded as an essential relief which is sought in this suit. Now it is well established that in matters of court-fee and pecuniary jurisdiction, one must look to the real substance of the suit and not the form in which it has been clothed. If, therefore, there is any legal necessity for the plaintiff to get a declaration of his right of easement before he can get an injunction to protect it, the suit would have to be filed under Section 7(iv)(c) of the Court-Fees Act, even though he has sought this declaration by means of averments in the body of the plaint and not by praying for a declaration specifically amongst, the reliefs at the end of the plaint. On this part of the case the safe rule is that when there is some legal obstacle which has to be removed before a consequential relief can be granted, it is incumbent upon the plaintiff to pray for a declaration which will have the effect of removing that obstacle. But if the plaintiff merely avers a title which can be established without the cancellation of a document or the nullification of any adverse title and only claims the relief which would naturally flow from the establishment of the title which he avers, it is not necessary for the plaintiff to pray expressly for a declaration of that title. So much seems to me to follow from the decisions of the Privy Council in Bijoy Gopal Mukherjee v. Krishna Mahishi Debb (1907) 17 M.L.J. 154 : L.R. 34 IndAp 87 : I.L.R. 34 Cal. 329 and of the Full Bench of this Court in Ramasami Aiyangar v. Rangachariar : AIR1940Mad118 . It is true that the first of these decisions related to a question of limitation, but the principle on which the decision is based applies equally, to my mind, to a question of court-fee. The decision of the Full Bench just quoted related to a suit by a minor challenging alienations in seeking possession. The question raised was expressly one of court-fee and I find it difficult to distinguish this case merely on the ground that the substantial relief is one for possession and not one for an injunction. A similar case is reported in Maung Shein v. Ma Lon Ton I.L.R.(1931)Rang. 401. It is not necessary for me to decide what would be the position if the plaintiff had in fact prayed for a declaration as well as for an injunction, as is the case in Venkatakrishna Pathar, In re (1926) 52 M.L.J. 121, where Jackson, J., held that the suit fell under Section 7(iv)(c) and that the subject-matter was not the land but the value of the easement. It seems to me that on the frame of the present suit, all that the plaintiff has to do is to prove by evidence that he has a subsisting right of easement to the extent and of the nature claimed. If the evidence establishes the existence of this right, there is no legal impediment which has to be removed before the injunction protecting that right will be granted; and whether he has or has not sued for declaration, it is not necessary for him to pay court-fee on the footing that the finding which he seeks as to his title is really a declaration, necessarily required as a preliminary to the grant of the injunction. It follows that the plaint as now amended falls only under Section 7(iv)(d) of the Court-Fees Act and that the plaintiff is entitled to place his own valuation on the injunctions which he seeks. No doubt the valuation which he has placed upon these injunctions is palpably inadequate, but the Court has no power to revise that valuation. It follows therefore that the suit is within the pecuniary jurisdiction of the District Munsif.
6. The more difficult question is whether having regard to the fact that the suit seeks to protect an easement alleged to exist in favour of land situate outside the limits of British India, the British Court has jurisdiction to try the suit. This is a question on which in spite of the elaborate researches of learned Counsel on both sides, no British or Indian authority has been discovered. There are American decisions to which I shall refer. But so far as British Courts are concerned, one is taken back to the general principles enunciated in the text books, together with such light as may t5e derived from somewhat analogous decisions. Dicey in his 'Conflict of Laws', Fifth Edition, lays down as his third general principle that the Courts of any country have jurisdiction over any matter with regard to which they can give an effective judgment and have no jurisdiction over any matter with regard to which they cannot give an effective judgment. Rule 53 at page 203 prescribes that subject to certain exceptions, the Court has no jurisdiction to entertain an action for the determination of the title to or the right to the possession of any immovable situate out of England or the recovery of damages for trespass to such immovable. The exception states that where the Court has jurisdiction to entertain an action against a person under either Rule 59 or under any of the exceptions to Rule 60, the Court has jurisdiction to entertain an action against such person respecting an immovable situate out of England on the ground of either-
(a) a contract between the parties to the action; or
(b) an equity between such parties
with reference to such immovable. Rule 59 states that when the defendant in an action in personam is, at the time for the service of the writ, in England, the Court has jurisdiction in respect of any cause of action, in whatever country such cause of action arises. Under Rule 60, when the defendant in an action in personam is, at the time for the service of the writ, not in England, the Court has no jurisdiction to entertain the. action. Except for the fact that they are imported into Rule 53, we are not concerned with the exceptions to Rule 60, for here we are dealing with a suit against the defendant who is a resident within the jurisdiction of our Courts. But it is to be remembered that one of the exceptions to Rule 60 gives the English Courts jurisdiction even over a non-resident defendant when any injunction is sought as to anything to be done in England or any nuisance in England is sought to be prevented or removed. This is a clear indication that jurisdiction in respect of injunctions resides in the Court of the country in which the injunction is to operate.
7. Now, in the present suit, it is necessary to determine the title to an easement operating over land in British India, but appurtenant to land in Hyderabad State. In one aspect of the matter, it may be said that the right of easement forms part of the title to the land in Hyderabad. But in reality that which has to be determined is not the existence of any right in Hyderabad but. the existence of a right in British India attached to another right situate elsewhere. It seems to me quite clear that the Hyderabad Court according to the principle enunciated by Dicey could not entertain the suit for the issue of an injunction in respect of a right of easement over property in British India or grant a decree in respect of that right against a defendant residing in British India. Not only would a decree for such an injunction be futile and unenforceable but it would in fact be a decree for the protection of immovable property situate in another State.
8. It is however contended that even assuming that the Hyderabad Court has no jurisdiction over a suit such as the present, it does not follow that the British Court has jurisdiction and that this may well be a case of a conflict between sovereign rights such as can only be solved by international arbitration or treaty. Now in form, there is at present no conflict between the State of Hyderabad and the Province of Madras. We have to deal with a conflict of a private owner of land in Hyderabad claiming rights in favour of his land over other land situate in British India and belonging Jo a British Indian resident. The Government's of the two territories have so far not intervened. It seems to me unprofitable to consider in detail the cases which were cited before me on questions such as the right of an English Court to entertain a suit for damages for trespass upon real property in a foreign state or concerning the inability of an English Court to grant an injunction against a defendant residing in England for the protection of a foreign title. Here, we are in substance concerned with a suit for an injunction brought against a defendant residing in British India to protect a right of easement, which, though appurtenant to property in Hyderabad, has a. local existence only in British India; and moreover the suit seeks an injunction the operation of which is only over property in British India and which affects the person of the defendant who resides in British India. It seems to me that in such circumstances, it being conceded that the plaintiff is the occupier of the Hyderabad land in favour of which the right of easement is claimed, the suit must be regarded essentially as one to establish a right to immovable property in British India and to protect that right by an injunction. A right of easement is itself immovable property. That right restricts the user of other immovable property and the mere fact that it operates in favour of land situate outside the jurisdiction should not, to my mind, on the principles enunciated by Dicey, prevent the Courts having jurisdiction over the property in respect of which an injunction is sought, from deciding whether or not that injunction is to be granted.
9. Even if this suit is to be regarded as one to establish a foreign title, I am of opinion that it would come within the exception to Rule 53 in Dicey on the ground that it is a suit to establish the existence of an equity which the plaintiff has a right to demand as against the defendant. A right to an injunction is a right which forms part of the old Chancery jurisdiction. 'Equity' is defined by Ashburner as a claim to the interposition of the Court of Chancery' and it is no less an equity because the aid of chancery is sought to protect a legal right.
10. It has been suggested that the British Courts cannot exercise jurisdiction over this suit because the determination of the plaintiff's right to an easement will necessarily involve the decision o a Hyderabad title subject to Hyderabad law. This seems to me to be an erroneous contention; for a right of easement is itself an immovable and all questions concerning property in immovables are decided according to the lex situs. The easement in question here is localised and it is localised in British India and the right to that easement must be determined according to the law of British India.
11. Questions relating to rights of easement operating in one State in favour of land in another State seems to be of more frequent occurrence in America than in most parts of the British Empire. Washburn on Easements, Fourth Edition at page 738 summarises the law as follows:
If an action be for obstructing a water-course, it is local in its nature. In respect to the jurisdiction which should take cognizance of this injury, the Court held that an injury to an easement by acts done in one State may be sued for in that State, though the principal estate be in another, as for obstructing a way in A, which is appurtenant to an estate in B. In this case, therefore, as the owner on the Connecticut side was injured by the act done by the other party on the Rhode Island side, the former may bring his action in Rhode Island for the injury thereby done. If, for instance, the owner on the Connecticut side instead of this were to obtain an injunction against the owner on the other side in the Courts of that state in respect to the canal by which he diverts the water, it would be inoperative and could not be enforced in Rhode Island, it being a proceeding quasi in rent. And it seems that one who is injured by such an act may have his action, either where the act is done, or the consequential injury is suffered, at his election.
12. The learned author was dealing with a case in which there was a stream dividing two States and the owner of the land in one State diverted the water to the detriment of the owner of the land in another State situate lower down the stream. Thus in America, at any rate, the principle which I have endeavoured to set forth seems to have been recognised, namely, that an action, may be maintained to prevent an injury to a right of -easement operating in one State in favour of land situate in another State by proceeding in the Court having jurisdiction over the land upon which the right of easement operates. The same result is achieved by applying Rule 53 in Dicey along with the exception to Rule 60 relating to suits for an injunction.
13. In the result, therefore, I hold that the suit as framed is within the pecuniary jurisdiction of the District Munsif and that it is one cognizable by a British Indian Court in respect of which the Court of the District Munsif has territorial jurisdiction. I also hold that the court-fee paid is correct. 'The revision petition is therefore dismissed with costs. In view of the time taken by the arguments in the case and the research necessary for its proper presentation, I fix the; Advocate's fee at Rs. 150. I wish to add that this suit which has been pending since 1933 should now be decided with all possible expedition.