1. This appeal is against the decision of the District Court of Chingleput in a suit by the Secretary of State for India in Council against the holder of the inam village of Kilakudi in the Chingleput District. This village has two tanks the Chitteri and the Periya Eri having a common bund, the latter tank being on a lower level than the former. Kamaravadi and Pulipakkam are two roytwary villages adjacent to Chitteri, the former lying towards the South and the latter towards the west of Kilakudi. According to the plaint it is stated that the surplus water of the Chitteri used to flow to the Kumaravadi tank through a channel taking off from the southern bund, that this channel is the main source of supply to that tank and that the Periya Eri is not entitled to any portion of the surplus of the Chitteri. The plaint alleges that the Kamaravadi tank is entitled to the interrupted flow of water through the channel subject only to the defendant's right of using the water of the channel for irrigating the Kilakudi fields as it passes them, that the defendant infringed the plaintiff's right in 1899 by two wrongful acts, first, by re-placing the natural escape of the Chitteri water by a masonry weir built so high as to intercept the full supply to the Kumaravadi tank, and secondly by making two cuts in the bund of the Chitteri to let out its surplus water to the Periya Eri, thereby diminishing the quantity of surplus water which would otherwise flow into the Kumaravadi tank. The plaint also alleges that the defendant increased the capacity of her tank and caused some of the lands of Pulipakkam to be unduly-submerged. The defendant having refused to close the cuts and to lower the level of the surplus weir of the Chitteri this suit is instituted for a declaration that the Kumaravadi tank is entitled to all the surplus water of the Chitteri, for an injunction restraining the defendant from interfering with the flow of the water along the channel to that tank and directing the defendant to lower the height of the weir of the Chitteri to its former natural level and to close up the cats alleged to have been recently made.
2. The defendant denies that the Kumaravadi tank was entitled to ail the surplus water of the Chitteri and that the cuts complained of were made recently and asserted that the Periya Eri was entitled to and has always been receiving water from the Chitteri through the two cuts which, according to her, have been in existence for a long time; that the Kumaravadi tank is entitled only to the Chitteri surplus after supplying her Periya Eri, and that the level of the new masonry weir is actually lower than that of the former Calingula. There is no specific denial in the written statement of the allegation of submergence of some of the Pulipakkam lands, beyond the general statement that the defendant does not admit any of the plaint allegations not expressly admitted in the written statement. The dispute between the parties is one of long standing. The Government instituted a suit so long ago as 1887 (Original Suit No. 144 of 1887) in the District Munsifs Court of Chingleput for the Kumaravadi tank, the interrupted flow of all the surplus water of the Chitteri through the channel which was alleged to be an immemorial one, and denying the right of the Periya Eri to any portion of that water. In that suit the plaintiff complained that the flow of the water to his Kumaravadi tank was obstructed by the defendant by putting up a dam 14 years before the date of the suit at the point where the surplus channel issued from the southern bund of the Chitteri. The actual relief asked for then, besides payment of damages, was an injunction 'compelling the defendant to remove the obstructions complained of and to restore the channel to its original condition so as to allow the surplus water of the Chitteri tank to flow undisturbed and undiminished to the Kumaravadi tank and to restrain the defendant perpetually from interfering with the said flow'. The defendant pleaded that no channel issued from the southern end of the Chitteri tank as alleged in the plaint, that the Kumaravadi tank was not entitled to the Chitteri surplus, that the allegation of the construction of a dam across the channel was false, that her tenants, twenty-five years before that suit, opened the channel emerging from the southern bund of the Chitteri to irrigate the lands of Kilakudi and to let out the surplus water of those lands when there Were excessive floods, and that the channel never conducted the Chitteri water to the Kumaravadi tank. It may be noted that in this suit the defendant says that the cuts in the Chitteri bund now complained of existed at the time of the previous suit and that as the plaintiff did not then sue for any remedy regarding them he is now debarred from doing so. Exhibits A and N are the judgment and decree in Original Suit No. 144 of 187, and Exhibit B is the judgment of the District Court on appeal. The right claimed by the plaintiff in that suit was fully established. The Courts found it proved that the channel in dispute had been in existence for at least 35 or 40 years and that it took the surplus water of the Chitteri to the Kumaravadi tank. There was some discrepancy in the evidence as to the exact place where the bund across the channel had been put up by the defendant, but the point was considered immaterial, as the substantial question was whether the defendant had obstructed the course of the channel. The injunction asked for was granted in the terms of the plaint, the removal of the dam being directed 'if it still exists'. The first dispute 16 years after the termination of the previous litigation is substantially the same, viz., the right of the Kumaravadi tank to all the surplus water of the Chitteri. The defendant did not then assert that he was entitled to take the Chitteri surplus water to the Periya Eri but such right, if well-founded, would and should have been set up in defence to the plaintiff's right. In this suit the lower Court has held that the cuts in the Chitteri bund complained of did not exist at the time of the previous suit and that it is not likely that the Kumaravadi ryots would have refrained from complaining against the existence of the two cuts earlier than 1898 if they had existed then and finds that they were 'made recently '. It Las found further that there were originally (natural) breaches in the bund which served no useful purpose in ordinary years but after the construction of the Calingula have been used for diverting the supply to the Periya Eri.' The opinion of the lower Court that there were natural breaches in the bund is based on Exhibits L and L1, reports sent by the Village Munsif of Kumaravadi to the Tahsildar of Madurantakam in 1898 and 1899, but they do not support the Judge's observation as they really state that the madais or cuts were made shortly before the reports. We fully agree with the Judge that the cuts in question must have been recently made and with the reasons for that conclusion fully set out in paragraph 8 of his judgment. No serious attempt was made at the hearing of the appeal to impeach the correctness of this finding. The documents filed in the case show that ever since the decision in the previous suit, the inamdar has persistently attempted to set it at naught and to carry the water of the Chitteri to his Periya Eri and to another tank Katteri. In 1890 the Kumaravadi ryots complained that he had made an opening in the bund and led the water of the Chitteri through it to the tank of a neighbouring proprietor (Exhibit C) and in answer to this complaint he asserted that he had the right to do so (Exhibit D). The Tahsildar reported in 1892 (Exhibit No. 4) that he had put as many as 8 dams across the Kumaravadi supply channel to facilitate the irrigation of the Kilakudi lands on both sides, and he went on to say,--' No water issued, therefore, the Chitteri through the supply channel but the Chitteri water which issued through its irrigation-shrice has been brought round and conducted through the supply channel to the lands with the aid of these dams.' His own villages complained of the diversion of the water to the Periya Eri (Exhibit G). A fresh complaint was made by the Kumaravadi ryots in 1893 (Exhibit M) in which they stated that he had cut a new madai in the Chitteri to take water to the Periya Eri filled up the supply channel in certain places and thrown up 'as many as 12 dams. What became of this petition there is nothing to show. Finally, in 1898, the defendant took up the project of constructing a new weir. In Exhibit R, a petition addressed to the Tahsildar, she complained of obstruction caused by one Solaipillai of Pulipakkam to the construction of the weir, alleged that it would be of advantage to Kumaravadi village and invited the Tahsildar to inspect the locality. The village Munsif reported that the inamdar was attempting to raise the level of the water in the tank beyond the level of the old escape and that the result of his doing so would be to divert the water from the Kumaravadi supply channel to the Periya Eri through the two cuts referred to above; he stated also that the Chitteri bund in Kilakudi limits was being raised by 4 feet. The Sub-Divisional Officer of the Public Works Department made a local inspection and his report, Exhibit III, states that taking the level of the crest value of the new weir at 20 it was 1 1/2 feet higher than the level at which water used formerly to flow to the Kumaravadi tank and he suggested that the height of the weir should be lowered and that another Calingula should be built at the left flank with the same levels for crest and stones. This was communicated to the defendant, and at one time her husband would seem to have contended on her behalf to make the proposed alterations. See Exhibit IV. The negotiations relating to the matter apparently went on for a long time, certainly till March 1902. See Exhibit I; but finally the defendant declined to make the alterations suggested. Mr. Rungachariar contends that the Periya Eri has the first right to the Chitteri surplus and strongly relies on an observation of the Sub-Divisional Officer to that effect in Exhibit III. But we agree with the lower Court that that Officer's opinion cannot be acted on. He gives no reasons for his view. Exhibit J, the survey plan of Kilakudi, does not support it and no accounts are produced by the defendant to prove the claim. We cannot uphold this contention, especially in the face of Exhibits A and B which, in our opinion, are practically conclusive on the point. It is argued for the appellant that she is entitled to do what she likes with the bund of her own tank, that the Kumaravadi channel was used merely to drain off the water of the Chitteri tank, and that the plaintiff cannot object to the appellant's making cuts in theChitteri bund or preventing in any other way the Chitteri water from reaching the channel if he could do so, and that the previous suit merely decided that bunds should not be put up to obstruct the flows of water which had actually reached the channel. Now, it must be observed that in the previous suit this very contention was raised that the water did not flow into the channel for the benefit of the Kumaravadi tank but to help to drain off the surplus water of the Chitteri; but the Courts decided that the Kumaravadi tank was entitled, as a matter of right, to the uninterrupted flow of the Chitteri surplus into and along the channel. The learned Vakil does not contend that the plaintiff could not in law possess such a right; his case is that the proper conclusion from the evidence in the case is that the plaintiff has no such right in this case. But this contention was not raised in the lower Court nor even in the grounds of Appeal to this Court and we must refuse to consider such an argument at this stage. The next contention of the appellant is that she has merely re-placed an old turf bund by a masonry weir of not greater height, that she has not acted in excess of her right in doing so but only changed the mode of enjoyment of her right, that the plaintiff is bound to prove that he has been materially damnified by the change and reliance is placed on the judgment of this Court in Second Appeal No. 11 of. 1907 in support of this argument. But the appellant has not proved that the Kumaravadi tank has not been injured by the change. The lower Court finds that all the water would go down to Periya Eri through the cuts in consequence of her action. It is not shown that this conclusion is wrong. The decision in Greenslade v. Halliday 6 Bing 379 : 4 M. & P. 71 : 8 A.L.J. (O.S.) C.P. 124 shows that a person who has the right to put up a dam of turf and loose stones is not necessarily entitled to substitute a tighter and stronger dam. See also the judgment of this Court in Second appeal No. III of 1904. The question in each case must be, what is the exact nature of the right which is shown by the evidence to have been acquired by the party. We are of opinion that at any rate in the circumstances of this case the onus is on the inamdar to show that she has not exceeded her right in constructing new weir. See M'Intyre v. M'Gavin (1893) A.C. 268 : 1 R. 246 : 57 J.P. 548. Exhibit III shows that the flow of water from the Chitteri to the Kumaravadi tank has been seriously affected by the construction of the weir. The evidence shows also that the turf bund used to be put up only after the Kumaravadi tank received its full supply of water. We cannot attach much weight to the argument that more satisfactory evidence of the injury could have been given by the production of the accounts of the Kumaravadi village which would show whether the cultivation of the lands sufficed after the construction of the weir. The defendant's act is of a nature that must necessarily cause serious injury to the Kumaravadi village.
3. The appellant's Vakil argued at some length the question whether any lands of the Pulipakkam village were in fact submerged in consequence of the defendant's act. It is unnecessary to consider the argument on this question in detail as we have already found that the plaintiff is entitled to succeed in consequence of the injury to the Kumaravadi tank. But we may say that the evidence of the Pulipakkam ryots examined in the case is sufficient to prove that their lands were improperly submerged, and that remission of revenue was consequently granted to them by Government, a statement not likely to be made and capable of being easily disproved, if untrue Mr. Rangachariar's criticism of the evidence of the plaintiff's 1st and 4th witnesses is more or less hypothetical and far-fetched and we can see no reason why the plaintiff should put forward an untrue case on this point. Reliance is placed On the statement in Exhibit III that water at the crest level does not spread beyond the boundary of the water spread as shown on the survey map but the report shows that the Sub-Divisional Officer who signed it did not take the levels himself and the defendant has not cared to examine that Officer as a witness. We confirm the finding on this point also. This case is an instance of wilful and persistent wrong-doing in defiance of the adjudication of the Courts of the country.
4. We dismiss the appeal with costs.