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K. Muhammad Usan Rowther Vs. the Secretary of State for India in Council and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1926Mad788
AppellantK. Muhammad Usan Rowther
RespondentThe Secretary of State for India in Council and ors.
Cases ReferredThe Secretary of State v. Venkata Reddy
- from the valkudi channel, gives the ryot any rights that he can enforce as to the water supply.12. reliance was placed by the learned government pleader on gavad v. martyn 144 e.r. 974 where a stream was made to flow over the defendant's land by the operation of miners who had not permanently abandoned their right of control over the water in the stream when the plaintiff diverted it to his works. the latter used it uninterruptedly for 20 years, but such user was held no evidence that the land from which the water was sent had become subject to the servitude of being bound to send it on to the land of the neighbour below. that seems to me a very similar case to this. valkudi being also artificial and the property of government, could not the latter take other steps if it.....

Odgers, J.

1. The suit from which this appeal arises was brought by the plaintiff against the Secretary of State and others as owner of about 103 acres of land in the village of Anabhogi. He claimed an injunction against the defendants to restrain them from closing a certain inlet sluice on the ground that the said sluice is an irrigation sluice for the village of the plaintiff and that he has the right, title and enjoyment from time immemorial in respect of irrigation through it. It appears that the lands in question and those adjacent to it derive their water through two channels : (1) Anabhogi channel, which is the channel in dispute ; and (2) the Valkudi channel which at one point passes under the Anabhogi channel, the latter being carried over it by an aqueduct. It appears that at a point in the Valkudi channel which has been marked M in the plan, there is what has been called the Anabhogi inlet sluice which, as I understand it, is an aperture in the adjoining wall where the Valkudi channel is sunk in order to allow the aqueduct to pass over it, so that when the Valkudi channel is full of water under the aqueduct, which is of a certain height there will be an overflow into the bed of the Anabhogi channel and it is this 'uniting together of the said two waters' in the Anabhogi channel that the plaintiff lays claim to in a manner that will shortly be set forth.

2. These lands are ryotwari, and under the settlement or contract with Government there is no doubt that the latter is bound to supply water to the plaintiff's lands. He, however, claims that the Anabhogi channel has been irrigating his lands for more than 100 years and that 'the union of the waters' as it is called, has been enjoyed for a very long time. It appears from the plaint that this inlet sluice has been stopped up by the Government officials on the ground that it is. and always has been, a mere drainage sluice, and in the written statement of the Secretary of State he says:

The vent in the Valkudi channel, as it i.e called, is intended solely for the escape of the surplus of Valkudi channel into the Anabhogi Channel and not for supplementing the supply-to the Anabhogi Channel for purpose of irrigation.

3. It is also denied that the plaintiff has acquired any right by prescription.

4. The District Munsif found against the plaintiff on the ground that the flow of water was not enjoyed as a matter of right for 60 years. The Subordinate Judge found that there was no direct evidence as to the date when the under tunnel of Valkudi, the super passage or aqueduct and vent M were put up, nor was there any record to show that Valkudi was ever a supply channel to Anabhogi. No specific easement was, according to the Subordinate Judge, set up in the plaint and he found that the plaintiff has no right to get a supply of water to his channel from the Valkudi channel through vent M. Nor had he any such natural right, the Judge finding that the vent was intended as a safety valve to prevent the tunnel underneath and aqueduct overhead from being damaged during floods. He also found that there was no easement acquired by prescription by the plaintiff.

5. As to damages he found that there was no evidence that the water going through the aqueduct would be insufficient for the irrigation of the Anabhogi lands and that the plaintiff had not proved any diminution and consequent damage to his village by reason of the closure of the vent M. On these grounds he dismissed the plaintiff's appeal.

6. On second appeal before me, Mr. A. Krishnaswami Iyer relied on the following points:

(1) That a ryotwari holder is in the same position with regard to acquisition of an easement as any other proprietor.

(2) That the plaintiff's accustomed supply had been interfered with and the present supply was not sufficient for his purpose.

(3) That if the plaintiff's right is restricted to his agricultural requirements, even then there cannot be the same outturn of crop and he has a right of action.

7. Many cases were cited before me to the effect that the view as to the position of a ryotwari holder has been changed and that whereas he was looked upon in the older cases as a lessee, he is now regarded as a landholder with an. interest in the land: Madathapu Ramaya v. Secretary of State [1904] 27 Mad. 386. But although ryots are entitled to obtain a supply of water from the Government, it has been established beyond doubt that the Government has the right to distribute the water, though it has not the right to disturb existing arrangements to the prejudice of the tenant, i.e., ryot, and that a right of action is given to the latter if such prejudice is proved : Ramachandra v. V. Narayanasami [1893] 16 Mad. 333. Likewise in Krishna Rao v. Kuppier [1910] M.W.N. 428 it was held that the Government had the right to distribute water without prejudice to the rights for necessary cultivation. In Ponnuswami Tevan v. Collector of Madura [1870] 5 M.H.C. 6 which was a ease of a zamindary, it was held that a right to an easement in the flow of water through an artificial watercourse is as valid against the Government as it is against a private owner of land and that the grant may be presumed as of right long and openly enjoyed. This length of time should be as long as the period prescribed for adverse possession, or, according to Innes, J., no fixed period is necessary. In Kristna Iyer v. Venkatachella Mudali [1870] 5 M.H.C. 6 the right of Government to distribute water was affirmed, subject to the right of the plaintiff for irrigation and other necessary purposes. The distinction between ryots and proprietors was pointed out, and, it was held in that case that the utilization of surplus water by turning it into a new channel was no breach of contract with the plaintiff.

8. The Full Bench in Fakir Muhammad v. Tirumala Chariar [1876] 1 Mad. 205 by a majority decided that the ryot does not possess rights approaching full ownership. I ought to add that the correctness of this decision was questioned in Secretary of State v. Nunja [1882] 5 Mad.163.

9. Mr. Krishnaswami Iyer really bases his case on the theory of a lost grant. He admits that no specific user for 60 years has been proved such as would establish a right against Government under the Easements Act. But he says, relying on the dissenting judgment of Innes J., (supra) that a lost grant should be presumed in a case of this sort where for a very long time enjoyment of this extra-water is proved. It is pointed out by Goddard (Easements, 8th Edition, p. 161); that the doctrine can only be applied to easements which could, if the evidence were sufficient, be claimed by prescription at common law, and the expedient of presuming a lost grant is. only applicable to cases where the evidence or some technicality prevents the application of the principle of prescription at common law, to which it is only ancillary. It is of course clear that Section 15 of the Easements Act is not exhaustive and does not preclude other titles or modes of acquisition. In Muthu Goundan v. Ananta Goundan [1915] 29 M.L.J. 685 and Secretary of State v. Venkata Reddi : (1901)11MLJ75 . it was held that Government must make adequate arrangement for irrigation where a source of supply has been in use for a very long time. The Court said that cases may arise where a lost grant may be presumed though they held there was no sufficient evidence there for that purpose, cf. : Badduluru Nagayya v. Bachu Chenchuramayya : (1917)33MLJ674 .

10. It must be noticed that the enjoyment whether under the Prescription Act or whether it is relied on to establish a lo3t grant, must be 'as of right' and the question is whether the right of the ryot to his customory supply of water by whatever means the Government chooses to put the water on the land (Muhanakali Lakshmiah v. Karnam Narayanappa) [1918] M.W.N. 276 can give him such right. In ordinary cases of prescription, either a right of way or right to water, it is essential that the way or water should be in one definite direction or channel from one point to another The right of way generally over another person's land is unrecognized in law, and the right to water not contained in a definite channel, either natural or artificial, is equally unknown to law.

11. It is admitted in this case that the channel is artificial and was at some time or another constructed by Government. The channel is therefore undoubtedly a Government channel. The question is : Can the ryot, under the decisions concerning him which I have Set forth, be said to acquire any rights in water as against Government beyond the right to insist that his customary and necessary supply is not diminished The irrigation supply for the plaintiff's land is admittedly the Anabhogi channel, and the question is whether this channel, having been permitted to be augmented at certain seasons of the year by an additional supply from the Valkudi channel, gives the ryot any rights that he can enforce as to the water supply.

12. Reliance was placed by the learned Government Pleader on Gavad v. Martyn 144 E.R. 974 where a stream was made to flow over the defendant's land by the operation of miners who had not permanently abandoned their right of control over the water in the stream when the plaintiff diverted it to his works. The latter used it uninterruptedly for 20 years, but such user was held no evidence that the land from which the water was sent had become subject to the servitude of being bound to send it on to the land of the neighbour below. That seems to me a very similar case to this. Valkudi being also artificial and the property of Government, could not the latter take other steps if it chose to dispose of the surplus watez in that channel than by keeping open the vent M In Wood v. Wood 154 E.R. 1047 it is true that the artificial enjoyment depended on temporary circumstances, but it was held that the right to an artificial watercourse must depend on the character of the latter and upon the circumstances under which it was created, which circumstances may show that one party never intended to give, nor the other to enjoy, the use of the stream as a matter of right. The House of Lords in Gardner v. Hodgson's Kingston Brewery Co. [1903] A.C. 229 held that the user must be as of right, and if the enjoyment is equally consistent with two reasonable inferences enjoyment as of right will not be established see Banna v. Pollack [1900] 2 Ir. 664. and Angus v. Dalton [1879] 4 Q.B.D. 185. where Cotton L.J., observed referring to the means by which an easement is capable of being acquired independently of the prescription test and they are either an enjoyment beyond living memory from which, in the absence of evidence to the contary, enjoyment before the time of legal memory would be presumed or by enjoyment from such a time as could be sufficient in the absence of evidence to the contrary to justify a presumption of a modern grant that had been lost.

13. It is not alleged that either of these conditions has been fulfilled in the present case. It therefore appears to me that where the evidence does not prove a sufficiently long enjoyment under the Easements Act, it is difficult to say that the same evidence must be held sufficient to prove an immemorial user such as would support the fiction of lost grant, and particularly in this case where the channel is Government property and the only right of the ryot is to have a sufficient supply of water brought on to his land. I quite agree that if the ryot can show that, owing to new irrigation arrangements by the Government, the supply is insufficient for his cultivation he may have a cause of aetion. Here it has been found by the lower appellate Court that no damage has been sustained and it appears to me that I am bound by that finding although an attempt has been made to show from ceriain statistcs that the outturn has been less since the vent M was closed. But Mr. Krishnasami Iyer says proof of damage is unnecessary because in McCartney v. Londonderry and Loughirlly Railway [1904] A.C. 301 it was held that any act 'which injures another's right and would be evidence in future in favour of the wrongdoer may give ground for an action without proof of any specific iniury.

14. That of course may be so in case an act injures another's right. But under all the circumstances of this case, I cannot say that any such injury has occurred.

15. I am not able to say that any more weight is to be attached to the plaintiff's case that this surplus water has been overflowing from Valkudi for a number of years into the Anabhogi channel than to the defendant's case that the overflow was never intended to supplement the Anabhogi supply, but was merely a drainage vent for Valkudi; in other words that Government never gave up control to this extra supply.

16. It seems to me that just because the plaintiff has had the benefit of an extra amount of water for a long time (by extra amount of water I mean something more than he would ordinarily be entitled to as a ryot) he is not entitled to insist that that extra supply should be continued. It may be, as the learned Judges say in The Secretary of State v. Venkata Reddy : (1901)11MLJ75 . that under certain circumstances a lost grant may be presumed in favour of a ryotwari holder.

17. But in the state of the findings on the evidence here, I cannot say that there are any grounds for deciding this point in favour of the appellant. I do not think in the first place he has established that his enjoyment of this extra, water was as of right as, in my opinion, the flow of water to the plaintiff's land was not bound to be supplied in the same channel and was not bound to be of any particular quantity, and it was also regulated by the contract between the ryot and the Government. Reference may also be made to Section 2(a) of the Easements Act whereby nothing is deemed to derogate from any right of the Government to regulate the collection, retention and distribution of the water flowing, collected, retained of distributed in or by any channel or other work constructed at the public expense for irrigation.

18. I therefore think that the appeal fails and must be dismissed with costs of 1st respondent and 2nd respondent (two sets) in this Court.

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