1. Three points have been urged in this appeal by the defendants against the decree granting an injunction against them from obstructing the plaintiff's use and repair, where repair is needed, of an underground channel stretching from the point C in the plan to the point R, the greatest part of which runs across and under a public pathway marked public Rastha in the plan.
2. The first point is purely technical and may very shortly be disposed of. It is that when the appeal was pending in the lower appellate Court, the then respondent 3, Boddala Fapayya, alleged to be a nephew by a sister of respondent 1, died on 10th June 1932, but that the then appellant (plaintiff) respondent here took no steps to bring on record his legal representative and when the judgment was pronounced on 27th August 1932, the deceased respondent Papayya was not represented at all. Hence it is argued that the judgment of the lower appellate Court, sq far as that respondent was concerned is void and of no effect. It ought to be sufficient to say that, if so, the said respondent's widow and legal representative, the pre sent 4th appellant, need not have taken the trouble to join in the present appeal in order merely to assert that there was nothing to appeal against so far as she was concerned. On her own showing, the 4th appellant's appeal is incompetent and must be dismissed. But in this connexion it is as well to refer to the remarks of the Privy Council in Mahomed Wajid Ali Khan v. Puran Singh 1929 All. 58, where there Lordships point out that it was the duty of the respon. dent's counsel in the lower Court to have brought this matter to the notice of the lower appellate Court when it was possible to cure the defect. Of course, it is possible that he was not aware of it. But we are not unfamiliar with the practice of litigants keeping such matters to themselves in order to create difficulties for their opponents and this is a practice which is condemned, as indeed must be condemned, by all right-thinking persons by the highest Judicial authority.
3. The second objection raises rather an interesting point, on which I have been told by the learned gentlemen on both sides that the only available authorities in this Court are not widely reported and therefore I am much obliged to them for bringing to my notice the decision by Jackson, J., reported in Srinivasa Chettiar v. Aravamudha Ayyangar (1930) M.W.N. 611, and on appeal therefrom by the learned Chief Justice and Bardswell, J., reported in Aravamudha Ayyangar v. Srinivasa Chettiar (1934) M.W.N. 110. The question arises in this way. Between the points C and R lies the public Rastha under which the greater part of the length of the underground channel, which defendants are alleged to have obstructed, runs. The appellant's argument is that where the plaintiff's land, the dominant tenement, and the defendant's land, the servant tenement are not contiguous but separated by a public road or path, way, the dominant tenement is incapable of acquiring by prescription an easement to discharge water from the dominant tenement into the servient tenement because it can only do so by discharging the water on to the public way thus committing a nuisance and no prescriptive right to commit a nuisance can be acquired. For this argument the decision in Khudiram v. Surendra Nath 1914 Cal. 358, was relied upon where the overflow from the plaintiff's tank had to go over a public path and then pass through the defendant's land. In those circumstances the Court held, relying inter alia on Comyn's Digest Title Prescription F-2, that there can be no prescription to make a common nuisance, and it was observed that the plaintiff
is bound to show that he has acquired a right to carry water by lawful means to the boundary of the land of the defendants before he can claim to have acquired a right to discharge that water into the defendants' tank through a channel on another's land.
4. This decision was applied by Jackson, J., in Srinivasa Chettiar v. Aravamudha Ayyangar (1930) M.W.N. 611 to a case where the plaintiff's and the defendant's lands were separated by a Government channel under which a siphon sluice was constructed to take the water of the plaintiff's land into the defendant's land and it was held by that learned Judge that the plaintiff may have an action against the Government if he had any right against the Government and the Government may have an action against the defendant, but that the plaintiff could not have an action against the defendant direct. In the Letters Patent appeal however the learned Chief Justice explained the Calcutta case and pointed out that all that it meant was that the plaintiff was bound to show that he had acquired a right to carry the water by lawful means to the defendant's land and that, if that is so, there is nothing to prevent the plaintiff from having his action against the defendant although the two lands are not contiguous but separated by a public path. The question then really depends upon whether the plaintiff was discharging his water and bringing it to the defendant's boundary in a lawful way.
5. In this case a great deal of legal terminology not applicable to the facts was used in the lower Courts but wrong use of legal terminology should never be permitted to work substantial injustice. The plaintiff spoke of his right as an easement; the District Munsif thought that it was something like letting off surface water into a neighbour's land which did not include the right to discharge sewage water; and the learned Subordinate Judge in appeal was not entirely free from the idea of easement. All that was necessary for the plaintiff to prove was that he had been accustomed to discharge the water from his land on to the defendants' in a lawful manner. The evidence was that for many years, at least 23, this underground-channel had been in existence to the knowledge of the public authorities, that it was a puoca channel constructed of brick work and chunam covered over 'with stone, that the tahsildar knew of its existence, but took no objection to it and when examined as a witness in this casa, actually stated that, if it were put in order, there would be no objection to its being used, in other words, that it could not be a public nuisance. I have no doubt that although an easement in the strict sense of the term may not have been acquired against the Secretary of State because the enjoyment may have been short of 60 years, yet it has been allowed to be constructed and to be used by the plaintiff, by the public authorities who are entrusted with the drainage of public streets and paths and that they have not only not raised any objection for these 20 years but approve of it as a public convenience.
6. Whether you call it grant or license or anything else, I have no doubt that this channel has been used in a lawful manner and that therefore the conditions are here sufficient to enable the plaintiff to complain of the defendants' unauthorised interference to the scheme of irrigation which the public authorities who are responsible for irrigation would seem to have sanctioned. On the authority of Aravamudha Ayyangar v. Srinivasa Chettiar (1934) M.W.N. 110 I think the seoond objeotion fails. The third objection is that, if the decree is confirmed, the plaintiff must be ordered, in repairing the channel to which the defendants objected, to so repair it that the top is not higher than the adjacent roadway. Mr. Somasundaram for the respondent accepts this and I would amend the decree of the lower appellate Court by adding to it the following words at the end of para, (1):
Provided that the repairs are so effected that the top of the drain is not higher than the level of the Rastha to the east and west of it.
7. In other respects, the decree of the lower Court is confirmed and the appeal dismissed. The appellants have substantially failed and must pay the costs of the respondent. Add to the costs, the costs of the stay petition.