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Vallabhaneni Venkayya Vs. Sri Rajah Vijaya Apparao Savai Aswarao Bahadur Zamindar Garu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad352; (1942)1MLJ116
AppellantVallabhaneni Venkayya
RespondentSri Rajah Vijaya Apparao Savai Aswarao Bahadur Zamindar Garu and ors.
Excerpt:
.....in favour of the tenant but also of the landlord as well. a permanent diminution in the accustomed supply of water to which lands in an estate are entitled is not merely an injury to the tenant but is also likely to affect the ultimate interests of the landlord as well. 3. lastly it is objected that there is no warrant for an injunction being granted against the appellant restraining him not only from opening the bunds of the stream or taking new channels therefrom and also diverting or otherwise taking the water of the stream into a newly excavated channel but against the taking of water 'into any other water course'.it is complained that there has been no allegation, much less proof, of* the appellant or any other defendants in the suit attempting or threatening to bring into existence..........out, that it is open to the ryots to sue for a reduction of rent on account of the failure of water supply caused by the diversion made by the defendants. section 38 (1) (b) refers to a permanent failure of supply and not a mere diminution in the supply, and therefore it is somewhat doubtful whether the reason given by the learned district munsif is quite correct. but i am prepared to base my decision upon a wider ground. it appears to me that, if strangers either trespass upon lands in the holding of a tenant or commit a tortious act which tends to cause an injury to the holding, it gives rise to a cause of action not only in favour of the tenant but also of the landlord as well. a permanent diminution in the accustomed supply of water to which lands in an estate are entitled is.....
Judgment:

Krishnaswami Ayyangar, J.

1. The findings returned by the learned Subordinate Judge on the issues sent down to him are accepted. The result is that the appellant's property is not a riparian tenement in respect of which the appellant can claim any riparian right in the water flowing in the Thammileru. This disposes of the main contention in the second appeal.

2. It is however argued that, before the plaintiff-respondent can claim any relief against the appellant on account of the diversion of the waters of Thammileru river through the channel newly dug, it is necessary for him to prove that the diversion has resulted in a material injury to him. The findings of the Courts below contained in paragraphs 13 and 14 of the District Munsif 's judgment, confirmed by the Subordinate Judge in, paragraph 12 of the appellate judgment make it clear that an injury has been sustained to enable the suit to be maintained. According to the Courts below, there has been a diminution in the supply of water leading to the diminution in the yield of the lands in the plaintiff's estate. It is urged that the loss is a loss sustained by the tenant and that on the evidence it is not made out that the landlord, namely, the plaintiff, has suffered any loss in respect of the rents recoverable by him from his tenants. My attention has been called to the evidence of P.W. 7 and P.W. 14, both of whom, while asserting that there has been a diminution in the yield of the land caused by the diversion of the water, say that the Zamindar has not sustained any loss of rent. The learned District Munsif has given reasons why the loss sustained by the tenants should be regarded as sufficient to enable the landlord to sue. He has referred to Section 38 (1) (b) of the Madras Estates Land Act under which, he points out, that it is open to the ryots to sue for a reduction of rent on account of the failure of water supply caused by the diversion made by the defendants. Section 38 (1) (b) refers to a permanent failure of supply and not a mere diminution in the supply, and therefore it is somewhat doubtful whether the reason given by the learned District Munsif is quite correct. But I am prepared to base my decision upon a wider ground. It appears to me that, if strangers either trespass upon lands in the holding of a tenant or commit a tortious act which tends to cause an injury to the holding, it gives rise to a cause of action not only in favour of the tenant but also of the landlord as well. A permanent diminution in the accustomed supply of water to which lands in an estate are entitled is not merely an injury to the tenant but is also likely to affect the ultimate interests of the landlord as well. I hold that an injury of this kind which might not have yet affected the landlord but is likely in course of time to operate to his prejudice furnishes a sufficient cause of action for the landlord to sue.

3. Lastly it is objected that there is no warrant for an injunction being granted against the appellant restraining him not only from opening the bunds of the stream or taking new channels therefrom and also diverting or otherwise taking the water of the stream into a newly excavated channel but against the taking of water 'into any other water course'. It is complained that there has been no allegation, much less proof, of* the appellant or any other defendants in the suit attempting or threatening to bring into existence any other water course and that therefore there is no justification for the addition of the words ' or any other water course' at the end of paragraph of the decree. There is justification for the complaint because no sufficient' ground has been established for justifying the addition of these words. These words will accordingly be omitted; but it is not to be understood that the rights declared by the decree and protected by the injunction granted in the decree as it will stand will enable the defendants or any of them to cause prejudice to the rights of the plaintiff ascertained and declared in this litigation.

4. The appellant has substantially failed and must pay the costs of the first respondent. Leave refused.


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