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Bayya Sahu (Dead) Vs. Sri Sri Sri Krishnachandra Gajapathy Naraya Deo Garu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in56Ind.Cas.598
AppellantBayya Sahu (Dead)
RespondentSri Sri Sri Krishnachandra Gajapathy Naraya Deo Garu and ors.
Cases ReferredBasavanagudi Narayana Kamathy v. Lingappa Shetty
Excerpt:
.....based on the easement alleged to exist was, therefore, justified. 3. in the opinion of the subordinate judge, as i understand paragraph 3 of his judgment, the plaintiff failed to establish that, either by contract or custom, he had a right to get his field irrigated by the water of the suit tank. 5. the appellant's pleader has attempted to put his client's alleged right on the footing of an easement, but this attempt has failed for two reasons, (1) because a tenant could not prescribe for an easement against his landlord [see basavanagudi narayana kamathy v......suit, assuming that the plaintiff's lands were at some time (before 20 years ago) irrigated by the tank water. section 44 of the easements act says: ' an easement is extinguished where the servient heritage is by superior force so permanently altered that the dominant owner can no longer enjoy such easement.' 'superior force,' as shown by illustrations (a) and (b), includes natural causes. of course a servient owner cannot, by his own wrongful act, destroy the utility of the servient tenement actively and thus claim to have put an end to the easement. but if, through the forces of nature, the tank has become long ago unfit for use by the plaintiff for the irrigation of his lands, the principle of law embodied in section 44 of the easements act clearly applies and the easement or right.....
Judgment:

Sadasiva Aiyar, J.

1. The plaintiff is the appellant. The question relates to a tank in the Parlakimidi Zemindari. The plaint is rather obscure and if we take prayer (a), paragraph 14, which is, 'the Court may be pleased to pass a decree establishing the plaintiff's right to the Dayanidhi tack,' it looks as if be claimed title to the ownership itself of the tank. But it seems to have been conceded from the beginning that his only right was a right by contract or custom against his landlord, the Zemindar (1st defendant), to use the water of the tank for irrigating the plaintiff's lands. He cannot, of course, obtain by mere enjoyment a prescriptive easement against his landlord. See Basavanagudi Narayana Kamathy v. Lingappa Shetty 54 Ind. Cas. 943. But there is nothing to prevent his having a customary right, which may also be called 'customary easement,' or a right by implied contract with his landlord to use the water of the tank to irrigate some particular lands of his. Calling that right also an 'easement', the question is whether that easement existed when this suit was brought. The finding of the lower Appellate Court is that, owing to natural causes, it has been impossible to take the water of the tank to the plaintiff's lands for the purposes of irrigation for more than 20 years before suit, assuming that the plaintiff's lands were at some time (before 20 years ago) irrigated by the tank water. Section 44 of the Easements Act says: ' An easement is extinguished where the servient heritage is by superior force so permanently altered that the dominant owner can no longer enjoy such easement.' 'Superior force,' as shown by illustrations (a) and (b), includes natural causes. Of course a servient owner cannot, by his own wrongful act, destroy the utility of the servient tenement actively and thus claim to have put an end to the easement. But if, through the forces of nature, the tank has become long ago unfit for use by the plaintiff for the irrigation of his lands, the principle of law embodied in Section 44 of the Easements Act clearly applies and the easement or right has ceased to exist long ago and the dismissal of the suit brought for reliefs based on the easement alleged to exist was, therefore, justified.

2. I would dismiss the second appeal with costs, one set.

Spencer, J.

3. In the opinion of the Subordinate Judge, as I understand paragraph 3 of his judgment, the plaintiff failed to establish that, either by contract or custom, he had a right to get his field irrigated by the water of the suit tank. This being so, he had no right of suit against his landlord's act in letting out the bed of the tank for cultivation to 2nd defendant in exercise of the land-lord's rights of ownership over tank beds which are not otherwise restricted (vide Section 20 of the Madras Estates Land Act).

4. It is clear that that the plaintiff has no prescriptive right to irrigate his fields from this tank, as the Subordinate Judge has found that they could not have been irrigated from that source at any time within 20 years before suit.

5. The appellant's Pleader has attempted to put his client's alleged right on the footing of an easement, but this attempt has failed for two reasons, (1) because a tenant could not prescribe for an easement against his landlord [see Basavanagudi Narayana Kamathy v. Lingappa Shetty 54 Ind. Cas. 943 ] and (2) because, if there was such an easement, it must have become extinguished under Section 47 of the Easements Act.

6. I agree that the second appeal should be dismissed with costs (one set).


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