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Annaswami Naicken and ors. Vs. C. Manicka Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported inAIR1937Mad957
AppellantAnnaswami Naicken and ors.
RespondentC. Manicka Mudaliar and ors.
Excerpt:
.....to dismiss the suit, if the plaintiffs as ryotwari ryots of the village, being entitled to water from government for irrigation of their wet fields have been with the knowledge and consent of government using the water of the stream for that purpose and have done so by diverting the water into the devanand taluq by means of a dam and channel. held, if with the consent and approval of the government water had been diverted from 1893 and with the state of affairs existing the government chose to permit wet cultivation of such a large extent of acreage as 94 acres and 73 cents knowing full well that without the aid of such water it would not be possible for the plaintiffs to do so, the plaintiffs must be deemed to have a right conferred on them by the government, a right to the said..........to dismiss the suit, if the plaintiffs as ryotwari ryots of the village, being entitled to water from government for irrigation of their wet fields have been with the knowledge and consent of government using the water of the stream for that purpose and have done so by diverting the water into the devanand taluq by means of a dam and channel. so long as that is, as apparently it is, the mode of irrigation recognized by government for irrigation of the plaintiffs' ryotwari wet lands. . . .5. it would therefore seem that in the opinion of the bench that even though the stream is not shown as the registered source of irrigation, still if with the knowledge and consent of the government water had been diverted and utilized for the purpose of irrigation, it would be a mode recognized.....
Judgment:

Venkataramana Rao, J.

1. This second appeal arises out of a representative suit brought by the plaintiffs for themselves and on behalf of the villagers of Devanandal against the defendants as representing themselves and all other villagers of Adayur. The subject matter in dispute relates to the right to the water from the natural stream which flows through the village of Devanandal which is marked A to B in the plaintiff's plan and A to H in the Commissioner's plan. The plaintiffs claim the right to divert the water by means of a dam at the point D in the plaintiffs' plan through a channel DE to the tank F known as the Devanandal Eri for the purpose of irrigating the lands east of the said tank which is registered as wet under the ayacut of the said tank. The extent of acreage which was thus registered on the date of suit was 94 acres 73 cents. The necessity for the suit was that the defendants obstructed the plaintiffs from repairing the dam and also dug a channel nearby which prevented the water being taken to the Eri thus resulting in loss and damage to their lands. It is the plaintiffs' case that the water in this channel originally emptied itself in a thangal at the point C in the plan and thereafter the water was utilized for the irrigation of the lands adjecent thereto, but in or about 1893 and thereafter the water was diverted by means of a dam at the point D and carried to the Eri and during the course of 30 years from the said date there has been an increase of cultivation from 11 acres 65 cents to 94 acres, a fact which was recognized by the Government and in respect whereof the wet assessment has been levied. It is only after the irrigation of the plaintiffs' lands both previous to the diversion and thereafter that the surplus water flowed and fell into a cross channel JK wherefrom water was taken to the Adayur Eri and the defendants have no right to the said water except to the said surplus. The plaintiffs alleged that they had a right to the said water and the defendants unlawfully interfered with the said rights. In addition to their alleging in the plaint that they have been according to mamul diverting the water and irrigating their wet lands forming its ayacut, they also set up a prescriptive and easement right thereto.

2. The District Munsif, who tried the suit, held that the water originally before 1891 never went beyond the Thangal, that from 1893 there has been a diversion and the defendants had no right to obstruct the plaintiffs' enjoyment of the said water. He therefore gave a decree in favour of the plaintiffs restraining the defendants from interfering with the plaintiffs' enjoyment of the said right. The learned Subordinate Judge, who heard the appeal from the said decision, thought that there was no definite finding as regards the date of the erection of the dam and as to whether the surplus water flowed to Adayur village and whether the diversion by the plaintiffs interfered with the accustomed flow and remanded the case for a finding on those points. The learned District Munsif, who heard the case on remand, gave a finding to the effect that the dam was put up somewhere between 1893 and 1896, that the surplus water flowed in a different channel to the Adayur village and that by reason of the diversion by the plaintiffs no damage had been caused to the defendants. The learned Subordinate Judge, who happened to be not the same Judge who originally remanded the ease, upset all the findings hitherto arrived at by both the District Munsifs and came to an independent conclusion in regard to the rights of the parties. He was of the opinion that the water in the stream never emptied itself at the thangal prior to 1893, that there was a direct flow as far as Adayur village, that the dam was not constructed in 1893 or 1894 and that the facts necessary for the acquisition of the right of easement or prescriptive enjoyment have not been established. He therefore dismissed the plaintiffs' suit. In second appeal, Reilly, J. was not prepard to interfere with the findings of fact arrived at by the learned Subordinate Judge but ha made the following remarks:

If, as is represented for the plaintiffs, their right to irrigate as wet land an increased area which it would be impossible to irrigate without diverting water to their tank by the dam in question has recently been recognized by the Government, the proper course for them to follow in order to protect their interests appears to be to apply to the Government with a prayer that the Government will maintain or allow them to maintain the dam.

3. There was a Letters Patent appeal against the decision of Reilly, J. which was heard by a Bench consisting of Waller and Pandalai, JJ. Pandalai, J who delivered the judgment, was of the opinion that to leave the litigants to the mercy of the Government authorities was an unsatisfactory position for the Courts after 12 years of litigation and proceeded to deal with the matter before them on the state of the record then available before them. He pointed out that the learned Subordinate Judge who heard the case after remand, entirely missed the real points in issue and went behind even the admissions of parties. He further pointed out that there was no dispute about the existence of the dam and the only, question was whether the dam was built in 1893 or 1909. He was further of the opinion that the fact that the plaintiffs failed to prove an easement of the right does not entail the dismissal of the suit if in fact there has been a dam and a diversion of water with the knowledge and approval of the Government in view of the fact that as a result of the water of the stream being used for irrigation by diversion to the tank some 94 acres of wet land paying wet ryotwari assessment to Government has come into cultivation between 1890 and 1920 and the Munsif finds that this does no harm to the defendants. The learned, Judge was of the opinion that the necessary points which would lead to a satisfactory decision of the case have not been considered and he therefore thought that the case must be sent back for a finding on the following points:

Whether the registered or recognized source of irrigation for the plaintiffs' ryotwari wet lands is the tank or the stream or both, and whether with the knowledge and approval of Government the water of the stream in question has been diverted by a dam and channel to the tank for the purpose of irrigating these lands: If and to the extent the above question is answered in the affirmative, whether the defendants have established any right to interfere with the plaintiffs' enjoyment.

4. In so doing he made the following observations:

The first point is that the plaintiffs' failure to prove that an easement by prescription had been acquired by them in respect of the dam and diversion of water thereby is not sufficient to dismiss the suit, if the plaintiffs as ryotwari ryots of the village, being entitled to water from Government for irrigation of their wet fields have been with the knowledge and consent of Government using the water of the stream for that purpose and have done so by diverting the water into the Devanand taluq by means of a dam and channel. So long as that is, as apparently it is, the mode of irrigation recognized by Government for irrigation of the plaintiffs' ryotwari wet lands. . . .

5. It would therefore seem that in the opinion of the Bench that even though the stream is not shown as the registered source of irrigation, still if with the knowledge and consent of the Government water had been diverted and utilized for the purpose of irrigation, it would be a mode recognized by Government and the interference by the defendants would be actionable, and therefore, so far as the parties to the suit are concerned, they would be bound by this adjudication. The learned Subordinate Judge in pursuance of the directions contained in the High Court called for findings from the District Munsif. The learned District Munsif went into the matter very fully and came to the following definite conclusions: (1) The recognized source of irrigation is the Devanandal tank and not the stream; (2) the water has been diverted from 1893 to the Devanandal tank with the knowledge and approval of the Government; (3) the wet ayacut increased from 11 acres 65 cents to 94 acres 73 cents and it would have boon impossible to irrigate such a large extent without the aid of the water which has been diverted; (4) the Government kist for the village which was Rs. 381 in 1890-1891. had increased to Rs. 889.6.0 in Fasli 1328 and by the revision of re-settlement this was further increased to Rs. 1,010-2-0: (5) the diversion channel is shown in the survey plan Ex. H: (6) no diminution of supply to the defendants' tank has been proved in consequence of the diversion.

6. He therefore concluded that in the absence of any explanation as to how the tank got the larger additional supply and the admitted circumstances that the water from this odai which was used to fill up the private pudu thangal had been diverted at least since 1893 to the Eri and the fact that the Government has classed a much larger extent of lands in Devanandal as wet ayacut of the village to be irrigated by the tank without indicating any fresh source of irrigation or extending the area of the tank or in any way improving it substantially, is in support of the plaintiff's case. The learned Subordinate Judge on appeal concurred in every one of the conclusions arrived at by the learned District Munsif. Hence the appeal by the defendants. The main contention urged on behalf of the defendants before me by Mr. Venkatarama Ayyar may be outlined thus. The lands being admittedly ryotwari and the stream being on the lands of the Government and therefore the property of the Government, and it not having been recognized as the registered source of irrigation, the plaintiffs have acquired no right thereto to sustain a suit for a declaration or for an injunction; the mere fact that the water has been diverted for a long time would not furnish any cause of action as against the Government, it being conceded that there has been no prescriptive user for over 60 years and, therefore in law no declaration or injunction could be given to a person who has not perfected his right to an easement either by prescription or otherwise. I may at once say that there is authority for the proposition that before a right ripens into an easement, there is no right of action against anybody who interferes with it though there is also authority for the contrary view.

7. It is not necessary for me to go into that question on the facts of this particular case. The lands in respect whereof relief is claimed in this suit are admittedly ryotwari and a ryot in respect of such land is entitled to receive from the Government a supply of water necessary and sufficient for the irrigation of his registered wet fields. The Government have got the right to regulate the method and manner of supply. They can therefore indicate to him the source or method of supply and he is bound to accept those indicated. But there is no doubt that, as incident to the tenure, there is a right in the ryot to receive the said water, call it contractual or proprietary. There is a corresponding duty on the part of the Government, though in one sense negative to see that the supply shall be at his disposal by the usual and customary method. In this case, no doubt, the tank is pointed out as the registered source of irrigation and I may also state that the source of supply to the tank is indicated as rain. But it cannot be forgotten that the water of the natural stream, which was until 1893 falling into the thangal and exclusively used by the plaintiffs, was diverted in 1893 into the tank, and for over thirty years it has been the customary method to take the water of the stream from that channel to augment the supply of the tank without which it would be impossible to cultivate the 94 acres registered as wet under the ayacut of the tank. Therefore the Government must be taken to have impliedly recognized this as the customary method of supply for the time being for the irrigation of the wet fields. The fact that the stream or the channel is not pointed out as the source of irrigation in the Settlement Register cannot curtail the right of the plaintiffs to receive water which was absolutely necessary for the irrigation of their wet fields according to the customary method, and in my opinion it would not even be open to the Government to interfere with this method of supply, and much more so to the defendants, and such interference would furnish a cause of action.

8. As Pandalai, J. held, if with the consent and approval of the Government water had been diverted from 1893 and with the state of affairs existing the Government chose to permit wet cultivation of such a large extent of acreage as 94 acres and 73 cents knowing full well that without the aid of such water it would not be possible for the plaintiffs to do so, the plaintiffs must be deemed to have a right conferred on them by the Government, a right to the said water, and any interference of such right is actionable. In the circumstances therefore, the plaintiffs are entitled to a declaration that they have got a right to divert the water of the stream by means of the customary dam at the point D and take as much water as is necessary for filling up the Devanandal tank sufficient for the irrigation of 94 acres 73 cents of wet lands registered under that tank and the defendants are restrained by an injunction from doing anything so as to interfere with the said right. In the result, the second appeal fails and is dismissed with costs. Leave to appeal is refused.


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