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(Pydimarri Butchi) Venkatarama Sastri and anr. Vs. (Suri) Venkatanarasayya and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtChennai
Decided On
Reported inAIR1929Mad25; 113Ind.Cas.557
Appellant(Pydimarri Butchi) Venkatarama Sastri and anr.
Respondent(Suri) Venkatanarasayya and ors.
Cases ReferredWatson v. Gray
Excerpt:
- - 5. this evidence clearly shows that it has been customary in this village, to use the water of the tank for cultivating the 53 odd acres, described as 'wet ayacut under the suit tank. in our opinion, the evidence clearly shows that the enjoyment of the land irrigated by the tank and the enjoyment of the water of the tank are interdependent. 9. it is the duty of the defendants to make out the very exceptional case they have put forward. 13. from our judgment it follows that the plaintiffs are entitled to an injunction as well as damages. the sub-judge says that the evidence does not clearly establish the location of the old bodis......1 is correct. from immemorial usage must be implied an agreement regarding the use of the tank water in the manner described by him.6. the evidence on the record completely disproves the case put forward for the defence, namely, that the enjoyment of the water is independent of the ownership of the land irrigated by it.7. the argument overlooks a cardinal fact that whereas it is undoubtedly true that the agraharamdars own the water of the tank in the same proportion as they own the lands irrigated by that water it by no means follows from this, that their ownership of the water is unconnected with their ownership of this land.8. for instance, if one acre out of this area of 53 acres passes into the hands of an individual, his right to the water may in a sense be described as.....
Judgment:

1. The dispute in this case relates to the use of the water in a tank in an agraharam. The plaintiffs and the defendants own lands in that agraharam which is about 922 acres in extent. Of that, about 110 acres are wet lands. The plaintiff's case is, that of these 110 acres, 53-54 acres represent the wet ayacut under the suit tank. The defendants, it is alleged, attempted to convert a part of their dry land in the village into wet land by using the water of the tank. On that ground, the plaintiffs have asked inter alia for an injunction restraining the defendants from illegally using the water.

2. The District Munsif has held that the ayacut under the suit tank is 53-54 acres and that the defendants' act in irrigating a plot not comprised in this area, with the water of the tank, is wrongful and accordingly has granted the injunction to the plaintiffs. The learned Subordinate Judge has held that the proper remedy is a suit for partition and not an injunction and on that ground has reversed the Munsif's judgment on this point. He, however, has confirmed the decree passed by the District Munsif for damages.

3. The main contention on behalf of the defence is, that the various sharers of this agraharam are entitled to the water of the tank in certain defined shares. It. is then argued that they are at liberty to use the water of which they are the owners, in any manner they chose; in other words, that the ownership of the water has no necessary connexion with the ownership of the lands which are described as being 'under the wet ayacut of the tank.' This argument may be illustrated thus. If A, B and C own, say,, 10, 20 and 40 acres, they own the water-in the tank in the same proportion. The water to which B is entitled is double of what A may take and similarly C may take double of what B may take. But it is said that this has no reference to the ownership of the lands; so that, each of these persons may use the water for any purpose he likes, so long as he does not exceed the quantity to which he is entitled. Mr. Satyanarayana for the defendants was constrained to argue on this; hypothesis that even if a sharer parts with all his lands in the village, he can-still retain his previous ownership of the water.

4. This contention seems to be utterly opposed to the evidence in the case. Plaintiff, deposes:

The wet ayacut under the tank is 53 acres.... The wet ayacut has been in existence from time immemorial...The water-in the tank is not sufficient even for wet ayacut.... They (the documents) show the extent of wet that is being...cultivated from time immemorial.... There was an implied agreement.... I say implied agreement...since there has been no increase in the wet ayacut all this time.

5. This evidence clearly shows that it has been customary in this village, to use the water of the tank for cultivating the 53 odd acres, described as 'wet ayacut under the suit tank.' The evidence of P.W.s 2 and 3 confirms the version of plaintiff 1. We are of opinion that the position taken up by plaintiff 1 is correct. From immemorial usage must be implied an agreement regarding the use of the tank water in the manner described by him.

6. The evidence on the record completely disproves the case put forward for the defence, namely, that the enjoyment of the water is independent of the ownership of the land irrigated by it.

7. The argument overlooks a cardinal fact that whereas it is undoubtedly true that the agraharamdars own the water of the tank in the same proportion as they own the lands irrigated by that water it by no means follows from this, that their ownership of the water is unconnected with their ownership of this land.

8. For instance, if one acre out of this area of 53 acres passes into the hands of an individual, his right to the water may in a sense be described as being 1/53 of the tank water. It does not, however, follow from this, that he may take from the tank 1/53 of the water in it and use it for any purpose he likes. In our opinion, the evidence clearly shows that the enjoyment of the land irrigated by the tank and the enjoyment of the water of the tank are interdependent. If this be borne in mind, para. 3 of the plaint presents no difficulty. The plaintiffs say that they are entitled to the tank, to the tank bed, to its water and to the ayacut of the tank to the extent of 5/8 and the defendants to the extent of 3/8. This certainly is not an admission that each of the sharers is entitled in the abstract to a certain quantity of water. There is an assumption in the paragraph that the water of the tank can be used only to irrigate certain lands; on that assumption is based the statement that the water is owned in the same proportion as the land.

9. It is the duty of the defendants to make out the very exceptional case they have put forward. Their evidence is extremely vague and no such case has been definitely put to the plaintiff's witnesses in their cross-examination. The judgment of the learned Sub-Judge is confused on the point and the utmost that can be said for it is that he has not recorded a distinct finding on it. We therefore proceed to dispose of the S. A. under Section 103, Civil P.C. In our opinion the District Munsif's conclusion on the question is correct.

10. The Sub-Judge states that if a joint owner of a tank feels aggrieved, his remedy is a suit for partition on the analogy of the joint ownership of land. This is an argument too absurd to merit serious notice. The District Munsif's judgment granting the injunction must be restored.

11. In this case, there is a finding that owing to the unauthorized use of the water by the defendants, the plaintiffs have suffered damage. In our opinion, the plain-tiffs would be entitled to an injunction even if no damage was proved. The principle is that applied in Kanahayya v. Narasimhulu [1896] 19 Mad. 38. In the case of a party-wall, ...it was held that one of two co-tenants was entitled to the removal of a portion newly erected by the other co-tenant, although the former had suffered no inconvenience from it. Parker, J., observed:

It is true that the refusal of plaintiffs to give the required permission may be ill-natured and that the raising of the wall will not really harm them.

12. Notwithstanding, they were held entitled to the relief, the principle laid down in Watson v. Gray [1880] 14 Ch.D. 192 was applied. We think the same rule applies by analogy to the case of joint tenants of a tank.

13. From our judgment it follows that the plaintiffs are entitled to an injunction as well as damages.

14. It has been found that the defendants-removed the original bodis (channels) and constructed new ones. The Sub-Judge says that the evidence does not clearly establish the location of the old bodis. We direct the defendants to remove the bodis newly erected and restore the old bodis. If the parties cannot agree as to what the old bodis are, that point may be decided in the execution of the decree.

15. The plaintiffs will have their costs in the lower Courts and plaintiff 1 will have his costs of the second appeal. The memorandum of objections is dismissed.


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