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T.K. Nallamuthu Pillai and ors. Vs. R.K. Thirumalai Aiyangar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1942Mad258; (1942)1MLJ49
AppellantT.K. Nallamuthu Pillai and ors.
RespondentR.K. Thirumalai Aiyangar and ors.
Cases Referred and Broadbent v. Ramsbotham
Excerpt:
- .....of water . for the purpose of cultivation. in many parts of the madras presidency the storage of water in tanks is essential if crops are to be raised, and agriculture provides the means of livelihood for the vast majority of the population. the application of english rules of law was fully discussed by wallace, j., in seshadri aiyangar v. narasimhachari (1931) 36 l.w. 408 where he stated that the whole system of tank irrigation and the rights of ryots to water for irrigation has no counterpart in england and no place in the english common law, the law on such matters being determined in india by custom and customary right. he pointed out that it would generally be found that the system is so self-contained that any attempt to alter it on behalf of an individual who may have a private.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The parties to this appeal are ryots cultivating lands in the neighbourhood of the Kadamba tank in the Tinnevelly District. The tank Which is a large one is fed from a river through a channel flowing into the tank at its northern' extremity. A bund running from North to South causes the water to spread during the monsoon season to a line beyond the boundaries of the lands cultivated by the appellants. It is, admitted that from time immemorial these lands have been submerged for several weeks in the year after the tank has filled as the result of the rains. The withdrawal of water from the tank for the purpose of the cultivation of the lands falling within the ayacut causes the water to recede gradually from the appellants' lands and when this has happened they are fit for cultivation. The appellants and their predecessors have accepted tenancies of these lands knowing that they would be completely submerged for part of the year. In 1898 the appellants' predecessors erected bunds to prevent the submersion. This caused some of the water in. the tank to escape over the weir and lessened the supply which the ryots in the ayacut were accustomed to receive. They naturally objected to the erection of these bunds and as the result of their objection the Revenue authorities caused them to be demolished. Notwithstanding the action of the Revenue authorities similar bunds were erected in 1899, 1904, 1907 and 1924. Except in the year 1924 the Revenue authorities stepped' in immediately and caused the protective earthworks to be demolished. In 1924, however, the Revenue authorities refused to interfere as they considered that the bunds erected by the appellants were merely field ridges and the loss of water was inconsiderable. The question was not finally decided until the 29th March, 1927 when the Board of Revenue agreed with the Subordinate Revenue Officers that no substantial loss had been suffered by the ryots in the ayacut as the result of the erection of the 'bunds. The Board's order caused the respondents 1 to 4 who are ryots cultivating lands within the ayacut to file the suit out of which this appeal arises. There are concurrent findings of the Courts below that the bunds are more than field ridges and that the respondents have in consequence suffered material diminution in their customary supply of water. It is now clear that the. Board was misinformed.

2. The suit was filed in the Court of the District Munsif' of Srivaikuntam. The plaintiffs claimed that they were entitled by prescription and custom to prevent the appellants interfering with the spread of the water in the tank. The District Munsif found against the plaintiffs and dismissed the suit. On appeal the Subordinate Judge 'held that the District Munsif as wrong and issued a mandatory injunction, requiring the appellants to remove the bunds which they had erected. The appellants then appealed to this Court. The appeal was heard by Wadsworth, J., who agreed with the Subordinate Judge but gave a certificate which has permitted the present appeal to be filed under Clause (15) of the Letters Patent.

3. Much has been said in the course of the litigation with regard to rights which are recognised by the English Common Law, and in this Court the learned advocate for the appellants has con-tended that an owner of land has always the right under the Common Law of England to prevent his land being submerged. Assuming this to be so, it is, however, manifest that principles which can be applied in England are not always applicable here. The conditions in England are very different from the conditions in this country and the Court must have regard to the principles which have been applied in India when questions have arisen affecting the rights of ryots to their customary supply of water . for the purpose of cultivation. In many parts of the Madras Presidency the storage of water in tanks is essential if crops are to be raised, and agriculture provides the means of livelihood for the vast majority of the population. The application of English rules of law was fully discussed by Wallace, J., in Seshadri Aiyangar v. Narasimhachari (1931) 36 L.W. 408 where he stated that the whole system of tank irrigation and the rights of ryots to water for irrigation has no counterpart in England and no place in the English Common Law, the law on such matters being determined in India by custom and customary right. He pointed out that it would generally be found that the system is so self-contained that any attempt to alter it on behalf of an individual who may have a private grievance is almost certain to re-act to the detriment of the ryots as a body. He also drew attention to the fact that submersion of lands on the foreshore1 of a tank when it is full is no uncommon occurrence and is a feature of the recognised irrigation' system. With these remarks we find ourselves in full agreement.

4. It cannot be denied that if the appellants are allowed to prevent the Kadamba tank reaching its full capacity during the rains the plaintiffs and other ryots in the ayacut will suffer because the water which would otherwise spread over the appellants' . lands will be forced over the weir and lost so far as the ayacut is concerned. The action of, the appellants in reality amounts to interference with the bed of the tank because their lands for several weeks in the year form part of the bed of the tank. As the result of the construction of this tank generations ago the ryots of the ayacut have become entitled to have their lands irrigated from it and anyone who interferes with their customary supply is interfering with rights recognised by law and therefore is subject to the injunction of the Court. The action of the appellants in erecting these bunds has resulted in a material loss of water to which the ryot respondents are entitled. That is the overriding factor and the plea that the appellants are merely protecting their own property, cannot be accepted. The appellants agreed to become tenants of these; lands possessing full knowledge that for part of the year they would be submerged and they have no real grievance quite apart from the principles which govern the case.

5. In the course of the arguments the learned advocate for the appellants laid great stress on Robinson v. Ayya Krishnamachariyar (1872) 7 M.H.C.R. 37 but when the judgment in that case is fully understood it will be seen that it does not help the appellants, in any way. There a tank used for the irrigation of the lands of the plaintiffs obtained part of its water from rain falling on the lands of certain of the defendants. The bund of the tank threw back the waters flowing into it on to the lands of these defendants and remained there until the water in the tank fell sufficiently to allow it to drain off. These defendants, through the agency of the Government, constructed a channel which prevented the water overflowing their lands, but conducted it back to the tank without loss to the plaintiffs, who, however, claimed to have the former state of affairs restored on the ground that they had a, prescriptive right to throw back the water on to the defendants' lands and to keep it there until required for use. This contention was rejected. In the course of the judgment it was said that water not running in a defined stream is the absolute property of the owner of the land of which it forms part, and before it has reached a defined stream he may drain it off or put it to what purpose he pleases, the decisions in Rawstron v. Taylor (1855) 11 Exch. 369 : 25 L.J. (Ex.) 33 and Broadbent v. Ramsbotham (1856) 11 Exch. 602 : 25 L.J. (Ex.) 115 being referred to. That may perhaps have been the right principle to apply in that case as the construction of the channel did not cause interference with the rights of others, but here there is interference with the rights of others and the principle there relied on is inapplicable.

6. Inasmuch as the appellants by their action have interfered with the rights of the plaintiff-respondents we hold that the plaintiff-respondents are entitled to the reliefs granted, which means that the appeal fails. Consequently it will be dismissed with, two sets of costs, one set to be paid to the plaintiff-respondents and one set to the Secretary of State who has been made a party to the suit and has opposed the appeal.


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