1. As the introductory facts have been set out in our judgment in A.S. No. 165 of 1930, it is sufficient to state here that this appeal arises out of disputes between the Government and the zamindar of Saptur in respect of silt clearance near and over the Vannapparai anicut and of the extent of the Government's right to take water through the Sivaneri channel, which branches off from the Periyar in front of this anicut. At this point, the river has a bend and flows more or less south to north. The anicut has been constructed south-west to north-east and the channel lakes off from the right or eastern bank of the river. In the plaint, the zamindar who is a lower riparian owner complained of two matters: (i) that the Government through its servants and ryots of the Ayan villages had widened and deepened the Sivaneri channel from time to time thus obstructing more water from the river, and (ii) that the river has silted up on both Hides above the anicut and reeds, etc., have grown, with the result that water passes only over a small portion of the anicut. Two reliefs were accordingly prayed for: prayer (a) related to the clearance of silt and removal of the reeds, etc; prayer (b) asked for the restoration of the channel to a width of six yards with the bed level at half a foot above the crest of the Vannapparai dam. Prayer (c) may be left alone as it merely suggested a method by which the relief asked for in prayer (b) might be carried out.
2. The written statement denied that there had been any widening or deepening of the channel after 1876. This particular year was mentioned because it was with reference to that date that the High Court had decided in A.S. 31 of 1883 that the Government had not been shown to have changed the depth, width or position of the channel. No figures were given in the written statement as to the dimensions, etc. of the channel, but the Government took care not to admit the correctness of the allegations in the plaint as to the dimensions of the channel or its bed level. As regards the silting, Government said that 'no act of the defendant contributed to the silting up, if any, or to the growth of the reeds'; it was added:
Whatever earth or brushwood may be found is on the natural banks of the river near the anicut and exists for the safety and protection of the adjoining lands.
3. The Government also raised a plea of limitation founded on the continuance to the knowledge of the plaintiff and his predecessors-in-title of the present state of things in assertion of a hostile title by the defendant for over half a century.
4. Of the issues framed in the case it is sufficient to mention Issue (2) relating to the width and bed level of the channel, Issue (4) relating to the silting up of the river and obstruction by growth of brush, wood and Issue (6) raising the plea of limitation. Issue (9) was the general issue as to the relief to be given to the plaintiff. The trial Court held that the suit was not barred by limitation. Under Issue (4) it found that the river had become silted up and obstructed and accordingly gave certain directions in respect of the removal of the silt and reeds. Under Issue (2) it accepted as correct the figures given in the commissioner's report and plan [Exs. 63 and 63 (a)] as to the width of the channel and fixed the bed level at the head as two feet below the crest of the Vannapparai anicut. During the pendency of the suit in the lower Court, certain works alleged to be by way of clearance of sand at the mouth of the channel had been executed by the Government and certain interlocutory proceedings had taken place with reference to the same. Adverting to the farms of the High Court's order made in that connexion, the learned Subordinate Judge also directed the defendant to restore the status quo ante as per the detailed provisions contained in para. (3) of the decree. Against the decree, in so far as it is against the defendant, Government has preferred the appeal. The plaintiff has filed a memorandum of objections claiming that all the reliefs asked for in the plaint should have been granted.
5. It will be convenient at the outset to deal with an argument as to onus of proof advanced on behalf of the appellant. The pliant alleged that by reason of the state of things therein described, the supply of water to the plaintiff's tanks was greatly diminished, that the plaintiff's ryots suffered thereby and that in consequence thereof plaintiff suffered damage to the extent of Rs. 440 in Faslis 1329 to 1331. The written statement denied that there had been any diminution in the supply of water flowing over the anicut and passing to the plaintiff's tank. It also denied that the plaintiff had sustained any damage. It suggested that, on the other hand, by reason of what the zamindar had been doing further east on the river (at the point A), his tanks were receiving a much larger supply of water than before and that the cultivation under them had been greatly extended. This is the matter in dispute in the connected suit. On the issue as to damages framed in this case, the lower Court found that the zamindar had not proved that he 'has suffered damages as a result of any specific act of the defendant.' Taking his stand on this finding, the learned advocate for the appellant has contended that in the absence of proof of damage, the plaintiff was not entitled to any of the reliefs claimed in the suit. He maintained this proposition even on the footing that the suit was to be regarded as one between two riparian proprietors. But at the end of his argument he also made reference to the prerogative of the State in India to distribute the waters of public streams in any manner it liked and contended that in this view at least the onus must be laid on the plaintiff to prove damage. The decision in Fisher v. Secy. of State (1909) 32 Mad 141 on which he relied, is itself sufficient authority against; the first contention, because the Government, as upper riparian owner, is not seeking to use the water of the river for a riparian tenement but to fill a tank situate at a long distance. Further, the right to divert water to such a tank by putting up a permanent dam across the river is one in the nature of an easement and is not a riparian right. The lower riparian owner is therefore entitled to insist that there should be no excessive user and that the easement should be enjoyed in a manner consistent with his rights and without increasing the burden of the easement. As the Government claims the easement by prescription, the lower Court rightly held that it is for the defendant to show the extent of his prescriptive right. The existence of the dam is not in dispute nor its dimensions. But on proof that the silt has accumulated near or over it in a way calculated to obstruct the normal flow of water over the dam, the plaintiff is entitled to relief unless Government can show that the plaintiff's remedy in respect thereof has become barred by limitation. As regards the dimensions of the channel, it is the plaintiff who complains that they have been interfered with by the Government and the lower Court was therefore right in throwing upon him the burden of proving that fact. By an application of the presumption against wrong doing, the Court started with a presumption in favour of the existing state of things and called upon the zamindar to prove that it is different from the original or lawful condition.
6. Should the question of onus however be considered from the point of view of prerogative of the State, the decision in Sardar Singh v. Imperial Bank of Rawalpindi Ltd. A.I.R. (1929) Lah 479 no doubt lends support to the appellant's contention that even in circumstances like those of the present case, the onus is on the plaintiff to show that he has sustained damage. The learned Judges however did not base their decisions on that ground because they found that even placing the onus on the defendant, the evidence established that the plaintiff in that suit had not sustained damage. We are however unable to accede to the contention that the present case should be determined with reference to the prerogative of the State. The written statement makes no reference to this aspect and it has not been suggested that anything is now being done by the Government in pursuance of any project or contemplated irrigation work. Both parties dealt with the case on the footing that it was one intended to determine the extent of the existing rights of the zamindar on the one hand and the Ayan ryots served by the Sivaneri channel on the other. It does not seem to us fair at this stage to convert the defence into one based on the Government's prerogative right. The finding recorded by the lower Court on the question of damages is carefully worded. The judgment undoubtedly proceeds on the footing that the accumulation of silt, etc. near and over the anicut has diminished the supply of water flowing over the dam, but it nevertheless found against the plaintiff on the question of damages because the damage, if any, was not shown to be attributable to any act of the Government. We may also point out that, so far as the plaintiff complains of the obstruction caused by the accumulation of silt, it is difficult to see where any question of prerogative right of distribution of water comes in. On the other hand, if driven to it, we feel constrained to say that the correspondence discloses an unreasonable attitude on the part of some of the local officers concerned in rejecting even modest proposals made from time to time by equally responsible officers, though for the time being the latter happened to be in charge of the estate under the Court of Wards.
7. It was also contended on behalf of the appellant that as the accumulation of silt has been found to be due to natural causes, and the allegations in the plaint attributing the same to the acts of Government officers have not been proved, the plaintiff in not entitled to any relief. This argument ignores the effect of the evidence (including that of P.W. 13, an officer of She Government) showing that the accumulation is caused by the existence of the anicut which has been constructed by the Government for the benefit of the Sivaneri channel. The authorities establish that the obstruction caused to the free flow of water in the stream by such accumulation amounts to a 'nuisance' and that the riparian owner who is injured thereby may take steps to abate it even by going on the other person's land, if only he can do it peacefully. If this is not permitted, his remedy is to sue for an injunction and for damages: see Coulson and Forbes on Waters, 5th Edn. pp. 667 and 668; Angell on Watercourses, paras. 388 and 389; could on Waters, para. 363. The observations in para. 445 of Farnham on Waters show that the position is the same even when natural causes combine with the existence of the dam to bring about the obstruction. We cannot accept the appellants' contention that once Government acquires the right by prescription to maintain the dam, it also obtains a kind of immunity in respect of all other obstructions that may arise in the natural course of things by reason of the existence of the dam.
8. It was next contended that plaintiff's remedy if any in respect of the clearance of the silt had become barred by limitation. It must be mentioned here that though there is a reference in para. 15 of the written statement to the plea of limitation, it would rather seem to refer to the state of the channel than to the accumulated silt in the river. The written statement carefully avoids making any admission as to the silt accumulation, as shown by the use of the expression 'if any' in para. 10. In any event, the defendant puts forward no specific or definite case as to the time during which there has been accumulation of silt at any particular spot. Appellants' learned Counsel relied on the fact, appearing from Exs. H series and N. series, that from time to time over a period of nearly forty years before suit, the plaintiff's officers have been complaining to the defendant's officers about silt accumulation in the suit locality and have been asking for its removal, while the defendant's officers have uniformly declined to allow it to be done. But the evidence in the case, including that of P.W. 13, establishes what might even otherwise be safely presumed, that in this jungle stream the silt appears at one season and disappears by the action of the floods in another season and its re-appearance in another year may well be on different spot. P.W. 13, who examined the locality under instructions from the Government just before he gave evidence, has prepared a sketch (Ex. SSS) wherein he shows, to the south of the dam, a mass of obstructing material which he describes as 'shifting low sand shoal now a little above anicut crest.' This practically corresponds to what is shown in the commissioner's plan Ex. 63 (a), as A-7, A-8, A.-9, C-2, C-3, C-8, C-4 and is described in para. 10 (c) of his report (Ex. 63) as 'silted up by sand in uneven level'. It is difficult to see how there can arise any plea of limitation in respect of the removal of Much obstruction. The injury caused to the lower riparian owner by obstructions of this kind may well be regarded as a 'continuing wrong' within the meaning of Rule 23 and he will have a cause of action accruing de die in deiem, Rajrup Koer v. Abdul Hossein (1881) 6 Cal 394 (and Section 24 of Act 9 of 1871 with its Illustration), until the opposing party acquires a prescriptive right to maintain the obstruction. As stated already, the Government has no specific case in respect of this silt accumulation. There is accordingly no question of any acquisition of prescriptive right in respect thereof. It is indeed doubtful whether a prescriptive rights could be acquired at all in respect of a shifting or changing mass like silt accumulation: Lemmon v. Webb (1895) A.C. 1.
9. It was sought to be maintained by reference to the sketch N-3, that the accumulation on the left flank of the river Indicated by the letters 'abc' on that sketch must have continued to exist at that definite spot and in that definite form for a sufficiently long time so as to give rise to a prescriptive right. One answer to this argument is that no such case has been put forward in the written statement. In N-3, which is dated 1894, it is indicated that this silt bank is overgrown with shrubs. There is nothing to show the length of time during which or up to which or existed. Between 1894 and 1896 the estate officers were pressing for the removal of silt, but in N-20 dated 16th September 1896 it is stated by the Deputy Collector, as reported by the Manager, 'that the silts have been cleared by nature during the late freshes in river'. In subsequent correspondence, till we come to 1917, no reference is found to silt accumulation or its removal. We are therefore unable to hold that the silt accumulation shown in N-3 has permanently remained there in any definite form. In Ex. SSS, P.W. 13 has shown in the same locality an accumulation which he has described in the following words: 'portion referred to as silt bank formed by river deposit, with vegetation, reeds, after the anicut was built'. No question was put to him in chief examination about this except to elicit that the silt bank acts as a buffer to the natural bank by increasing the breadth of ground through which the water will have to out (para. 25 of the deposition).
10. In cross-examination the witness explained how in his opinion the silt bank comes to be formed on the left flank (para. 58) and added in para. 59 'from the vegetation on the silt banks, I shall say that they are a few years old.'. Nothing further was elicited from him in re-examination as to what he meant by saying: 'a few years'. On the other hand, the-suggestion of Government as appears from the cross-examination of D.W. 1 (on p. 677 of the record) was that these 'are not silt banks but natural high grounds'. D.W. 1 emphatically repudiated that suggestion and P.W. 13 agreed with equal emphasis that it was silt accumulation and not natural high ground. There is also the fact (noted by the lower Court) that in respect of any cause of action that accrued to the plaintiff subsequent to 1906, no plea of limitation can affect the plaintiff's remedy because of the minority of the plaintiff and his elder brother who died a minor. We accordingly hold that there is no force in the plea of limitation so far as the claim for the removal of the silt is concerned.
11. We see no other tenable objection to the direction in para. (1) of the lower Court's decree. The question whether from an engineering point of view the removal of the silt is desirable or undesirable seems to have been considered by the officers of Government almost wholly with reference to the interests of the Ayan ryots. Such considerations seem to us irrelevant to the case, though even on the aspect of 'safety' to the dam, the evidence does not make out that the direction given by the lower Court will in any way endanger it.
12. Proceeding next to the objections to Clause (2) of the lower Court's decree, we may state at the outset that the acquisition by the defendant of a prescriptive right to maintain the dam will not of itself entitle him to all the waters intercepted by the dam but only to such water as he has been accustomed to take by the Sivaneri channel: John White and Sons v. J. and M. White (1906) A.C. 72 If he is entitled to draw water through a channel with certain dimensions, he cannot enlarge the dimensions of that channel: Brown v. Best (1747) 1 Wilson K.B. 174 The dimensions of the Sivaneri channel have so often been the subject of dispute between the parties that it is eminently desirable to fix them with such precision as the circumstances permit, (Their Lordships after considering the oral and documentary evidence in the case concluded as follows.) Except to the extent of the variation above made in respect of the depth of the channel, the decree of the Court below is confirmed and the appeal and the memorandum of objections are dismissed. As the appellant has succeeded in part and failed in part, we make no order as to the costs either in the appeal or in the memorandum of objections.