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Sri Vuppalapati Suryanarayaneswara Jogi Jagannadharaju and anr. Vs. the Rajah of Vizianagaram Represented by the Estate Collector of Vizianagaram Representing the Court of Wards - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1937Mad310; (1937)1MLJ216
AppellantSri Vuppalapati Suryanarayaneswara Jogi Jagannadharaju and anr.
RespondentThe Rajah of Vizianagaram Represented by the Estate Collector of Vizianagaram Representing the Court
Cases ReferredVide Perumal v. Ramaswami Chetti I.L.R.
Excerpt:
- - the learned district munsiff dismissed both the suits holding that the rights claimed by the plaintiff were rights of easement and that the plaintiff must fail because those rights had been interrupted more than two years before the suits were filed. it is also found as a fact that the water of the tributaries was flowing in well-defined channels and that these were natural streams. the learned district judge is quite right in holding that interference with such flow is an actionable wrong, especially in a case like this where the flow is totally cut off......had interfered with the supply of water to vooracheruvu which it received through a, stream called pedda gedda. this stream takes its rise; in a; jeroyat,i, village of the zamin and passes through the defendants mukhasa, village. during its passage through the defendants' village it was receiving tributary supplies from four streams which take their rise entirely within the defendants' village. in or about 1924 the, defendants intercepted the courses of three of these streams and put up a long bund so as to form a tank, thereby cutting off the supply of water which was formerly flowing through these tributaries into the pedda gedda. in o.s. no. 284 of 1927 the plaintiff prayed for a mandatory injunction to compel the defendants to remove the obstruction to the courses of the natural.....
Judgment:

Burn, J.

1. The defendants are the appellants. The plaintiff, the Rajah of Vizianagaram, filed two suits O.S. No. 284 of 1927 and O.S. No. 505 of 1927, the subject of which was the supply of water to a tank called Vooracheruvu in the village of Kottavalasa in the Vizianagaram zamindari. The facts have been fully stated by the learned District Munsiff and by the learned District Judge. The two suits were tried together by consent of both parties. The zamindar's complaint was that the defendants had interfered with the supply of water to Vooracheruvu which it received through a, stream called Pedda Gedda. This stream takes its rise; in a; jeroyat,i, village of the zamin and passes through the defendants mukhasa, village. During its passage through the defendants' village it was receiving tributary supplies from four streams which take their rise entirely within the defendants' village. In or about 1924 the, defendants intercepted the courses of three of these streams and put up a long bund so as to form a tank, thereby cutting off the supply of water which was formerly flowing through these tributaries into the Pedda Gedda. In O.S. No. 284 of 1927 the plaintiff prayed for a mandatory injunction to compel the defendants to remove the obstruction to the courses of the natural streams. O.S. No. 505 of 1927 was concerned with the course of the same stream further south. It was alleged by the plaintiff, that the course of the stream had been diverted towards the west: and that this diversion caused damage to Survey Numbers 17, 18; 19 and 20 of Kottavalasa and also to the Malapalli Survey No. 21-B. The plaintiff prayed for a direction in this suit that the defendants might be compelled to close the portion of the channel newly diverted towards the west and to restore it to its original condition. The learned District Munsiff dismissed both the suits holding that the rights claimed by the plaintiff were rights of easement and that the plaintiff must fail because those rights had been interrupted more than two years before the suits were filed. On appeal the learned District Judge disagreed with the learned District Munsiff on this point of law and granted the plaintiff the mandatory injunction which he sought. His finding with regard to the applicability of Section 15 of the Easements Act has not been challenged before us in appeal.

2. In S.A. No. 1060 of 1932 Mr. Somasundaram who-appears for the appellants concedes that the findings of fact are against him and does not seriously press this appeal. It is found as a fact that the course of the stream was diverted towards the west and that the diversion has caused damage to the plaintiff's lands and in these circumstances it cannot be said that the injunction given by the learned District Judge is in any way wrong.

3. Mr. Somasundaram has addressed almost the whole of his argument to the question of the blocking up of the tributary streams with which O.S. No. 284 of 1927 was concerned. As to this it is found by both the lower Courts that the tank Vooracheruvu and the stream Pedda Gedda which supplies it belong both to the plaintiff and to the defendants. Mr. Somasundaram has criticised the learned District Judge for describing the plaintiff as a 'riparian owner' of the stream. We do not think that much turns upon the adjective 'riparian'. It was definitely admitted by the defendants in their written statements in both the suits that the plaintiff and the defendants were both owners of the tank and of its feeder called Pedda Gedda. It is also found as a fact that the water of the tributaries was flowing in well-defined channels and that these were natural streams. That being so, the plaintiff is entitled to have the water flowing in its accustomed course not only through the Pedda Gedda but also through the tributaries which feed it-Vide Perumal v. Ramaswami Chetti I.L.R.(1887)11 Mad. 16. Mr. Somasundaram relied upon the fact that these tributaries rise on the defendants' lands and that the course of them is entirely with the defendants' lands. But this does not really improve his position, since according to his own admission he is a riparian owner and his rights are limited to those of a riparian owner. The cases which have been quoted by Mr. Somasundaram lay down that a riparian owner is not entitled to impound the water flowing in defined natural channels but is entitled only to use it as it passes. The rights of the defendants, whatever they may be, are subject to the right of the plaintiff to have the water of the Pedda Gedda and its tributaries flow in the customary manner down to him. The learned District Judge is quite right in holding that interference with such flow is an actionable wrong, especially in a case like this where the flow is totally cut off. We think the view of the law taken by the learned District Judge is correct.

4. The injunction granted by the learned Judge orders that the bund of the tank newly put up by the defendants shall be breached at the points in the Commissioner's plan marked I, II, III and IV in order to allow the water to flow in its usual courses. The plan shows that if breaches are effected in the bund at these points, the object will be achieved. The injunction granted by the learned Judge in O.S. No. 284 of 1927 seems to us therefore to be proper.

5. In the result, both the appeals are dismissed with costs.


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