1. These four appeals relate to a triangular dispute between the zemindars of Polavaram, Gutala and Gangole, who will hereafter be styled by their territorial names. In 1824 before the creation of the Gangole estate,' the proprietors of Polavaram and Gutala entered into a compromise with regard to the use of the water of the natural streams passing their two estates, and in 1829 an agreement is Said to have been entered into by the two proprietors. In order to understand the case, it is necessary briefly to state the respective positions of the lands, and the streams passing through them. One stream, Kovvada Kalva, with which we are chiefly concerned, runs from west to east through, first of all, the Gutala estate, subsequently through Polavaram and again through Gutala and Polavaram. A feeder channel, Nakkalagayya Kalva, joins Kovvada Kalva at a point in the Polavaram estate, and another channel, Pedralla Kalva, also does the same but further to the east. Apparently, water was taken by the lands of both the estates from all these streams, but the Polavaram proprietor wished to utilise the water of the Pedralla Kalva exclusively for his own lands and he built a masonry dam which effectively diverted its waters from the Kovvada Kalva. In return for this, a compromise was entered into between the proprietors of Gutala and Polavaram permitting the former to dam up the Kovvada Kalva at a point above its junction with the Nakkalagayya Kalva, so as to prevent water coming down below the point of damming. Apparently, the Gutala proprietor did erect such a dam across the Kovvada Kalva in the year 1830, but it. was almost immediately washed away and for some years no further dam was constructed. In 1843 the Gutala proprietor sold certain villages' of his estate to one Hota Gangayya by Exhibit A. It is argued for Gutala that this transfer did not amount to a sale but it is perfectly dear, as found be the lower Court, and from the language of Exhibits A-1 and A-2, that the transfer did amount to a sale. The land thus transferred is now what is called Gangole muttah. In 1849 the Gangole muttah was separately registered as an estate by the Collector, and from that date we have the three estates with which we are here concerned. In 1848 Hota Gangayya started the erection of a dam across the Kovvada Kalva, and when objection was raised by Polavaram, Gutala supported his vendee. Apparently, the dam was not fully constructed, although the Sub-Collector had approved of Gangayya's action, for, it appears from Exhibit D-30, that the masonry dam had not been constructed in 1852. Again, in 1863, a further attempt to build the dam was made and also in 1869, 1876 and 1880, but these attempts all failed, owing to opposition of Gutala and Polavaram. Nothing apparently happened after 1880 until 1898 when the then proprietor of Gangole, plaintiff in Original Suit. No. 2 of 1916, assumed charge. In 1905 a dam was put up, but the District-Magistrate, on the complaint of Gutala, ordered the blocking up of the Sagupadi channel which was fed by the water retained by that dam and it was not till 1911 that a complete masonry structure was put up. The structure consisted of two parts, firstly, what is called tne valanka, which apparently means a sort of training bund running from one bank up the middle of the stream, and, secondly, a crossdam from the end of that bund to the opposite bank. The cioss-bund was ordered to be removed in 1911, but the valanka was allowed to remain. Gangole has, therefore, brought this suit, Original Suit No. 2 of 1916, for a declaration of his right to construct a cross-bund of any material he pleases and for an injunction restraining the defendants, namely, the zemindars of Polavaram and Gutala, from interfering with his enjoyment. Gutala has filed a cross-suit, Original Suit No. 1 of 1917, against Gangole only, in which he asks for the removal of the Valanka built in 1911, and he also asks for a declaration of the parties' respective rights in the water of the Kovvada channel. The Government Agent in trying these suits his held that Gangole has no right to erect a permanent cross-bund in the channel, but he has not dismissed the suit but has declared that he is entitled to use such portion of the water of Kovvada Kalva as is reasonable to the enjoyment of his estate as an upper riparian owner. He has left the exact extent of that right and the manner in which it is to be enjoyed to be determined in execution. In the cross-suit, he has dismissed the suit entirely although in the first suit he has held that Gangole was not entitled to put up a permanent cross-bund.
2. Appeals are now tiled against both decrees by Gangole (Appeals Nos. 283 and 304) and by Gutala (Appeals Nos. 334 and 350).
3. I have talked of this compromise in 1829 as an admitted fact. It is, however, admitted only by Gutala, and, while Polavaram does not entirety deny the existence of some compromise, he contends that the compromise evidenced by Exhibits E, E-1 and E-2 is not in accordance with the compromise actually elected. So far as Gutala is concerned, the compromise in terms of Exhibit E is admitted, and that document itself is produced by them. It is contended for Polavaram that Exhibit E has not been proved and that there is no other evidence of the terms of the compromise.
4. Exhibit E is a copy of the original document purporting to have been executed by the Polavaram zamindar in favour of the zemindar of Gutala. It is only a private copy and it is neither signed nor dated. The learned Government Agent, in considering its admissibility, his apparently relied on circumstantial evidence in proof of its genuineness. In one part of his judgment he seems to rely on Section 90 of the Evidence Act on the ground that Section 90 has been held to be applicable not only to original documents but also to copies. But he has gone considerably further than the presumptions warranted by Section 90 without really considering the exact effect of that section, and sums up his finding as follows: 'The copy produced appears to be genuine and ancient. It gives Polavaram what on the face of it is a reasonable quid pro quo. The original is lost. The custody is proper. All that is not proved is the signature and the handwriting, but the collateral evidence and the circumstances point to its genuineness. For these reasons I accept Exhibit E.' There is no doubt a considerable tody of evidence which goes to show that there was some sort of compromise and that its turns were somewhat similar to, if not exactly the same as, the terms of Exhibit E: but there is absolutely 00 proof of the document. The writer is unknown and it does not even purport to be written by any particular person. The date of its making is also unknown and, therefore, it cannot be said with any certainty that it is thirty years old nor does it purport to be thirty years old. If, therefore, the document is to be admitted in evidence it must be proved in SOJU-J way or another. It has not been proved by any witness and the presumption in Section 90 cannot apply, for that only relates to documents which purport or are proved to, be thirty years old and. are produced from proper custody. This is not one of such documents and, therefore, the limited presumption of Section 90 cannot apply. One of the cases relied on by the Government Agent for admitting Exhibit E is Ponnambalath Parapravan v. Karoth Sankaran Nair 12 Ind. Cas. 453 but, from the brief judgment in that case, it does not appear that the copy was not proved, but, on the contrary, it would appear that there was some evidence adduced in regard to the copy. Here we have no evidence at all as to the making of the copy. The document not being proved to be thirty years old and being only a private copy proof would be necessary that it was compared with the original before it could be admitted in evidence. As there is no evidence that Exhibit A conforms to any of the provision of the Evidence Act (see Section 63) in regard to secondary evidence it is not admissible in evidence and must be rejected. Exhibit E-2 is a copy of the petition submitted by the zemindar of Polavaram and it contains the terms of the compromise though not in exactly the same language as Exhibit E. The same objections apply to this document as to Exhibit E, although we have got the evidence of one witness that the writing of it resembles the writing of one Vedlamani Seshayya, who was a clerk in the estate office. Here, again, the document is not proved, and doer, not purport to be thirty yean, old. Section 90 is, therefore, inapplicable.
5. There is also another objection to Exhibit 2 in that it is apparently a copy of a copy. We find that the words 'complied by Patri Rayapp' appear on the document and that signature 'Patri Rayapp' is only a copy. It would, therefore, appear that Exhibit E-2 was a copy prepared by some private person unknown of the copy granted by the Collector's Office.
6. Exhibit E-1 is a copy of a petition purporting to have been submitted by the zemindars of Gutala and Polavaram. But here, again, the same objections apply. So far as Polavaram is concerned, therefore, the terms of the compromise have not been proved by Exhibit E series.
7. It is then suggested that there is a good deal of other documentary evidence which goes to prove these terms, but, unfortunately, Section 91 of the Evidence Act prohibits any such evidence being given, for the only evidence of this contract which is allowable under that Section is the document itself or secondary evidence of its contents: and none of the evidence which is now adduced comes within the category of secondary evidence contained in Section 63.
8. Inasmuch as the Gangole zemindar relies upon the terms of this contract or grant of 1829 for his right to construct a masonary dam, his case must fail as against Polavaram.
9. An attempt has been made to show that he has acquired such a right by user and prescription, but it has been found in the lower Court and admitted in arguments, that until 1911 no masonry dam had ever been constructed. His prayer, therefore, for a declaration that he is entitled to put up a dam made of any substance he pleases, must fail and his suit must be dismissed so far as Polavaram, the first defendant is concerned.
10. As Gutala has admitted Exhibit E and in fact relies upon it, it will be necessary to consider, so far as the proprietors of Gutala are concerned, what rights the plaintiff has. The Gangole muttah was sold to the plaintiff in 1843 and another deed was executed in 1849 at the time when the transfer of registry was effected by the Collector. The contention now is, that all the rights conferred by Polavaram upon Gutala in 1829 passed by that sale to Gangole. Neither of the sale-deeds contains any Recital as to rights of water or any reference to the compromise, but it is urged that the right was appertaining the land which was sold to Gangole. (sic)right to dam the stream and prevent (sic) flow of water to the Polavaram estate which is given by Exhibit E is claimed to be an easement right, the dominant heritage being the Gutala estate, which as that time comprised also the Gangole muttah, and the servient heritage being the Polavaram estate. It is contended that, as no right has been reserved in the sale-deed, the whole of this easement right must be deemed to have been transferred. It must, however, be observed that the right when created was a right pertaining to the whole of the Gutala estate, and must be deemed to have been for the benefit of the whole estate. In fact, we have evidence that in 1830 a bund was constructed and the Sagupadi channel which takes off from that bund was extended so as to water not only, the villages of Gangole muttah, but also the Gutala villages lower down the stream. It is, therefore, difficult to understand how this right, which included a benefit to the estate retained by the vendor Gutala, can be said to have passed wholly to Gangole, who became the owner of only a portion of the dominant heritage. Under Section 30 of the Easements Act, when a dominant heritage is divided between two or more persons the easement becomes annexed to each of the shares, provided that such annexation is consistent with the terms of the instrument under which the division was made. Here the annexation of the right to Gangole alone would be to create an easement in Gangole as against the remainder of the Gutala estate, for the effect of damming up the waters in the Gangole muttah would not only deprive Polavaram of water but also the lower parts of Gutala. No doubt, an arrangement might have been made for watering these lower villages by means of a continuation of the channel which waters the Gangole estate. But in order to enjoy such a right it would be necessary for Gutala to have a right to enter upon the land of Gangole in order to reap such a benefit or, alternatively, an easement right to take water through Gangole would be conferred on Gutala. In the absence of a definite agreement to that effect no such right can be presumed in Gutala, and, therefore, it appears to me that the terms of the sale are quite inconsistent with the idea that the easement right was wholly transferred to Gangole. Whether Gangole and Gutala still possess a joint right against Polavaram it is not necessary here to discuss, because so far as Polavaram is concerned, this suit must be dismissed, and no attempt has been made by Gutala in their litigation to assert such a right.
11. One fact relied on by Mr. Venkatarama Sastri for Gangole is that, in 1848, when Hota Gangayya commenced the erection of a dam, he was supported by the proprietor of Gutala: but it must be remembered that at that date Gangole had not been separately registered, and consequently would not be recognised by the Revenue Authorities. The registered proprietor of Gangole muttah was at that time the Gutala zemindar and, therefore, there was nothing extraordinary to the zemindar of Gutala conducting the proceedings with reference to the dam in opposition to the Polavaram estate on behalf of his vendee. This one circumstance certainly cannot be deemed to prove that Gutala intended to part with all his rights under Exhibit E by the sale-deed in 1843. It is possible that Gutala did not, at that date, care very much whether the right was exercised by Gangole or by himself, but was anxious to assert his right against Polavaram. We see that in 1867 when further disputes arose Gutala definitely opposed Gangole's attempts to raise a dam and from that time forward there have been continuous disputes between the parties. I must hold, therefore, that the Gangole proprietor has failed to establish the right claimed in his plaint.
12. I think also for another reason that his snit must fail. Under Section 47 of the easements Act, a continuous easement is extinguished, when it totally ceases to be enjoyed as such for an unbroken period of twenty years. Such period should be reckoned in the cast; of a continuous easement from the day on which its enjoyment was obstructed by the servient owner, and in the case of a discontinuous easement from the day on which it was last enjoyed by any person as dominant owner. Assuming that this is a continuous easement as contended for by Gangole, obstruction was begun in 1867, or certainly in 1876, and has continued up till the time of filing this suit. Admittedly, the permanent dam was never constructed until 1911 and, therefore, it is dear that the right had not been enjoyed for an unbroken period of at least twenty years prior to 1911. On that ground also Gangole's suit must fail.
13. These findings might be sufficient also to dispose of the connected suit in which Gutala sues for the removal of the masonry Valanka, but a great deal of evidence has been adduced to show that the Gangole proprietor has from time to time been putting up Valanka': and cross-dams of a non-permanent character and thereby diverting the water of the Kovvada Kalva into his Sagupadi channel, and the Government Agent has ordered in his decrees that the extent; of this right, which he terms the right of the riparian owner, should be determined in execution. No doubt, as the Government Agent is responsible for the due administration of the Scheduled District and for the peace and order therein, his decree may be said to be equitable as giving an opportunity to the parties to come to terms as to their respective rights to the user of the water a question which can only be accurately settled with great difficulty. Treating the question as one of law, it seems to me clear that the Government Agent's decree cannot stand. When he found that Gangole had no right to build a permanent cross-dam, he ought to have dismissed Original, Suit No. 2 of 1916. Similarly as regards the Valanka, which apparently is now a solid structure extending some 200 yards into the stream, an order for its removal or at least diminution should have been passed. It is suggested that in the case of the Valanka which only diverts the water of the stream and does not dam it up, it is really immaterial whether it is, constructed of sand or tatties or loose stones, or whether it is made of stones and mortar. It is, however, quite clear that the temporary flimsy structures which had been put before were constantly washed away and, therefore, for long periods constituted no obstruction at all to the flow of water to Polavaram and lower Gutala were as the existence of a permanent masonry Valanka must always divert a certain quantity of water, which in times of low water might be of considerable importance to the lower proprietors. Gangole has in no way established his right to put up such a permanent structure, for I have held that the right under Exhibit E has not passed to him, and, therefore, I think, that an order must be made for the removal of Valanka. It is, perhaps, unfortunate that Gangole should be driven to building temporary structures, which naturally entail considerably additional expense, as they are repeatedly washed away and have to be rebuilt; but, as a question of right, it must be held that nothing fruther has been established by him. The right he has obtained can only be a right by user or prescription and it is incumbent on him, if he claims any particular right, to prove that he is entitled to it. In this Court in Second Appeal No. n of 1904 the erection of a permanent dam having been constructed prior to 1922, no right to such a dam can have been acquired by prescription. The user proved is only the erection of the flimsy structures. As pointed out in Bakhtavathsala Ammal v. Secretary of State 9 Ind. Cas. 636 , 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? In this case Gangole has failed to show that he is entitled to a permanent Valanka, as now existing and, therefore, his defence in Original Suit No. 1 of 1917 must fail.
14. As a rule, Original Suit No. 2 of 1916 must be dismissed with costs two sets, and in Original. Suit No. 1 of 1917 there will be a decree, directing the removal of the Valanka within four months with costs and that in default plaintiffs be at liberty to remoye it and recover costs thereof, to be determined by the lower Court, from defendant. Gangole will pay costs in Appeal No. 283 (2 sets) and in Appeal No. 350 (one set). In the other appeals parties, will bear their own costs.
15. I agree.