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Rajah Tadakamalla Seetharamachandra Rao Bahadur, Zamindar of Bethavole Vs. Sree Rajah Kotagiri Satyanarayana Rao Bahadur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1940Mad656; (1940)1MLJ699
AppellantRajah Tadakamalla Seetharamachandra Rao Bahadur, Zamindar of Bethavole
RespondentSree Rajah Kotagiri Satyanarayana Rao Bahadur and ors.
Cases ReferredMaung Bya v. Mating Kyi Nyo I.L.R.
Excerpt:
- - it seems to us that t this contention is well-founded. n which clearly provides that no obstruction should be caused to the water flowing as per mamool in the channels from one estate to another......for the same. in fact all the issues relate solely to this question. a larger question as to the water of durgadevi vagu flowing into the rallacheruvu vagu was also raised in the pleadings. but no issues were framed in regard to that matter though some evidence was let in on this question also. the main question for decision is only as to the right of the plaintiff to put up a bund in the durgadevi vagu as alleged by; him. this is again dependent upon the question whether the vagu runs in a straight course or in a bent course. the plaintiff can only succeed if it runs only in straight course. if the finding is that it goes in a bent course the plaintiff's suit fails. the learned subordinate judge has found that the durgadevi vagu was flowing in a bent course and not in a straight.....
Judgment:

Venkataramana Rao, J.

1. The facts necessary for the disposal of this appeal lie in a narrow compass. The question in dispute is between two neighbouring proprietors in relation to a natural water-course known as Durgadevi Cheruvu which flows between the two estates of North Vinagadapa and the South Vinagadapa. The plaintiff is the owner of the estate of South Vinagadapa, and defendants 1 and 2 are the owners of North Vinagadapa. Both these estates formed part of one estate which belonged to two brothers who partitioned it in 1844 by a deed of partition dated 29th August, 1844 (Ex. N). Under the said partition it was stipulated that the mountains, water-courses and certain other properties should be kept joint and none of them should cause obstruction to the supply channels and water channels flowing as per mamool till that date to the tanks from one part of the estate to another.

2. The Durgadevi vagu rises in a forest in the North-east of both the estates and flows in a westerly direction and empties itself into the Durgadevi tank within the limits of Vinagadapa South. It is the case of the plaintiff that no portion of the Durgadevi vagu flows through the estate of North Vinagadapa. But it is the case of the defendants that a portion of the vagu flows through a donka which is common to Troth parties and that the said donka forms part of the boundary of both the estates. That the donka belongs in common to the proprietors of both the estates cannot be disputed. This was not controverted by the plaintiff or hi9 witnesses. The first issue was raised on the basis of the joint ownership of the donka. It is also the defendants' case that the course of the vagu is in the form of a big curve marked as B, C, A, in the plan Ex. C when it traverses the donka and not in a straight course. It is the case of the plaintiff that the course of the vagu has always been straight falling within the limits of the plaintiff's estate and that no portion of it goes through the common donka. The necessity for the action has according to the plaintiff been occasioned by the demolition of a bund marked A, B in Ex. C which is at the southern extremity of the donka by the defendants in July, 1929, after it was repaired by the plaintiff. The plaintiff alleges that in 1925, there was a cyclone which caused an erosion in the Durgadevi vagu and diverted the water in a circular course in the vagu preventing the water reaching the Durgadevi tank and a bund was built in order to prevent such a diversion and the said bund existed from 1925 to July, 1929, when the defendants demolished it. Certain criminal proceedings were started in consequence and the parties were ultimately referred to a regular suit. The defendants denied that there was any such bund erected in 1925 and alleged that the bund was newly erected in 1929 because the defendants constructed a channel called the Gopavaram vagu to lead water from Gopavaram tank which is in the extreme east of their estate to the Durgadevi vagu to increase the water-supply of Durgadevi tank, 'that by reason of the bund having been erected water which was naturally flowing from the donka into the tank known as Rallacheruvu was interfered with and they suffered damages thereby.

3. The main question in controversy between the parties is whether Durgadevi vagu was flowing in a straight course or in a bent course through the common donka. The suit is in substance for a declaration that the plaintiff is entitled to put up a bund to the Durgadevi vagu at the portion marked A B, and for an injunction restraining the defendants from interfering with the plaintiff when he raises any such bund or when repairs are effected for the same. In fact all the issues relate solely to this question. A larger question as to the water of Durgadevi vagu flowing into the Rallacheruvu vagu was also raised in the pleadings. But no issues were framed in regard to that matter though some evidence was let in on this question also. The main question for decision is only as to the right of the plaintiff to put up a bund in the Durgadevi vagu as alleged by; him. This is again dependent upon the question whether the vagu runs in a straight course or in a bent course. The plaintiff can only succeed if it runs only in straight course. If the finding is that it goes in a bent course the plaintiff's suit fails. The learned Subordinate Judge has found that the Durgadevi vagu was flowing in a bent course and not in a straight course at the disputed locality and that the vagu does not lie exclusively in the estate of the plaintiff. It is this finding which Mr. Raghava Rao attacks on behalf of the plaintiff. The evidence relating thereto has been elaborately discussed by the learned Subordinate Judge and in view of the fact that we are agreeing with his conclusion we think it unnecessary to deal with the evidence at length. We propose to refer only to a few salient features which render the plaintiff's case improbable.

[Their Lordships after discussing the evidence proceeded thus:]

4. The question is whether the plaintiff is entitled to erect a bund. The donka being common property, its bed belongs to both the plaintiff and defendants 1 and 2. Mr. Sitarama Rao has contended that it is not open to the plaintiff to put up the bund and interfere with the enjoyment of the common property and that defendants 1 and 2 have a right to prevent the putting up of the bund even though they are not able to show any damage or the likelihood of any damage. It seems to us that t this contention is well-founded. In Bickett v. Morris 1 Scotch Appeals 47, Lord Westbury enunciated the principles at page 62 thus:

It is wise, therefore, to lay down the general rule, that, even though immediate damage cannot be described, even though the actual loss cannot be predicted, yet, if an obstruction be made to the current of the stream, that obstruction is one which constitutes an injury which the Courts will take notice of, as an encroachment which adjacent proprietors have a right to have removed. In this sense, the maxim has been applied by the law of Scotland that where you have an interest in preserving a certain state of things in common with others, and one of the persons who have that interest in common with you desires to alter it, you have a right to preserve the state of things unimpaired and unprejudiced in which you have that existing interest.

5. Applying this principle it was held in Kanakayya v. Narasimhulu I.L.R.(1895) 19 Mad. 38, that one of the two tenants in common of a party wall could not raise the party wall with a view to building I superstructure on his own tenement without the consent of the other tenant though he might suffer no inconvenience therefrom. The principle laid down in Bickett v. Morris 1 Scotch Appeals 47, has been approved by their Lordships of the Judicial Committee in Maung Bya v. Mating Kyi Nyo I.L.R.(1925) 3 Rang. 494 : 49 M.L.J. 282 : L.R. 52 IndAp 385 , (Vide the observations of Lord Atkinson at pages 500 and 501). Therefore the putting up of the bund A B in this case is an infraction of the right of the defendants and the defendants have every right to have it removed without showing any damage. But in this case it is admitted by the plaintiff's witnesses themselves as already stated that the bund would prevent any water from overflowing the vagu and reaching the Rallacheruvu. The defendants have this right even under Ex. N which clearly provides that no obstruction should be caused to the water flowing as per mamool in the channels from one estate to another.

6. But there remains another question which was raised by Mr. Raghava Rao. He has asked for an injunction restraining the defendants from interfering with the Durgadevi vagu. The defendants asserted a right to take water from the vagu through certain passages which according to Mr. Raghava Rao were newly dug after the institution of the suit as will appear from the several applications made by his client in the lower Court for the appointment of a Commissioner to inspect the locality and prepare a plan of the existing topographical features. Unfortunately, an issue was not raised relating thereto but there is no doubt, that the question whether any water would overflow from the Durgadevi vagu in its natural condition having regard to the situation of the vagu and the defendants' lands did arise and the evidence establishes that during the time of high flood or when water reaches a certain height in Durgadevi vagu it would overflow into Rallacheruvu vagu. In fact in the written statement the claim that was put forward by the defendants was that the water of the vagu has been flowing uninterruptedly into the Rallacheruvu vagu from time immemorial and the plaintiff had no legal right to impede the usual flow of the vagu. All that the defendants can claim in this case is that the plaintiff should not do anything which would prevent the overflow of the water in its natural state from the Durgadevi vagu into a Rallacheruvu vagu either during high floods or when the water reaches a particular level which would cause an overflow of the water. Once the water falls on the defendants' land, the defendants can take such steps as they may to conserve it. If the defendants have got any other right, it is open to them to take such appropriate proceedings as they may be advised to have it declared and safeguarded and it cannot be gone into in this suit.

7. In the result the appeal fails and is dismissed with costs.


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