Skip to content


Vepuri Subbayya Vs. Secy. of State - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1926Mad832
AppellantVepuri Subbayya
RespondentSecy. of State
Cases ReferredFischer v. Secretary of State
Excerpt:
- .....of vemulapalli, namely, nos. 89, 97, 98, 100, 103 and 104. these lands are irrigated by the water of a tank called mukkuvanigunta which is situated in survey no. 101. the plaintiff is the owner of the tank and also of survey no. 102. the tank was filled by the water of a. channel, which takes its rise from the hills near gopavaram. gopavaram is the village immediately north of the village of ganapavorigudem and the-latter village is immediately north of vemulapallu all the three villagers originally belonged to a zemindar, but some time before the middle of the last century the zemindari ceased to exist and all the villages passed to the government. the channel takes a definite shape according to the old survey plan of 1864 (ex. xi.) in the field marked no. 34 and described as a.....
Judgment:

Ramesam, J.

1. The plaintiff is the appellant before me. The 1st respondent is the Secretary of State for India. The plaintiff is the owner of certaininam survey fields in the village of Vemulapalli, namely, Nos. 89, 97, 98, 100, 103 and 104. These lands are irrigated by the water of a tank called Mukkuvanigunta which is situated in Survey No. 101. The plaintiff is the owner of the tank and also of Survey No. 102. The tank was filled by the water of a. channel, which takes its rise from the hills near Gopavaram. Gopavaram is the village immediately north of the village of Ganapavorigudem and the-latter village is immediately north of Vemulapallu All the three villagers originally belonged to a zemindar, but some time before the middle of the last century the zemindari ceased to exist and all the villages passed to the Government. The channel takes a definite shape according to the old survey plan of 1864 (Ex. XI.) in the field marked No. 34 and described as a jungle. It then passes through the village of Ganapavarigudem until it reaches a tank called Jangamgunta which was in the field No. 45 of that plan. It escapes through a southern outlet of the said tank and ultimately falls into Mukkuvanigunta belonging to the plaintiff.

2. The District Munsif found that the whole course of the channel, as described by me above, was a natural stream and had existed for more than 70 years. The outlet of Jangamgunta, through which the water of the channel continues to flow southwards, was breached. The District Munsif found that the breach had existed for over 60 years from some time prior to the vesting of the properties in the Government.

3. The Subordinate Judge on appeal also found that the portion of the channel south of Jangamgunta and north of Mukkuvanigunta had been existing during the last 60 or 70 years. An examination of the whole record shows that it is impossible to say when the channel and two tanks began to exist in the form in which they now exist. All that can be said is that they must have existed in this shape for more than 70 years and have become a permanent topographical feature. After the breach of the southern outlet of Jangamgunta, that tank lost its original shape ; so far as the western side is concerned no water could be stored in it, but on the western side a pond was formed which formed the irrigation source to the lands of Ganapavarigudem. This state of things, namely, the tank being in a state of disrepair, (the breach of the southern outlet not being repaired) must have led to the flow of more water into Mukkuvanigunta than was originally intended; but that it did flow and was utilized by the plaintiff for the irrigation of Survey Nos. 89, 97, 98, 100, 103 and 104 for more than 60 years is found by the Courts below and cannot be now questioned in second appeal. I am not satisfied with the evidence that it was utilized for the irrigation of Survey No. 102 for a similar period as the appellant claimed before me, and this is the finding of the Courts below. The plaintiff has, therefore, acquired an easement by which he is entitled to supply of enough water for the irrigation of his said lands (excluding Survey No. 102).

4. It has been suggested by the learned Government Pleader that the plaintiff could not acquire an easement as the portion of the channel beyond Jangamgunta carried only the surplus waters of that tank, and he relied on Wood v. Waud [1849] 3 Ex. 748, Arkwright v. Gell [1839] 5 M. & W. 203, Chamber Colliery Co. v. Hopwood [1866] 32 Ch. D. 549, Mason v. Shrewsbury and Hereford Railway Company [1871] 6 Q.B. 578 and Burrows v. Lang [1901] 2 Ch. 502. But I do not think these cases apply. I have already observed that the channel was really a small natural stream and though Jangamgunta tank is probably an artificial formation, it does not mean that the channel south of it is artificial and consisted only of the surplus waters of the tank ; for, before the formation of the tank, the natural stream must have continued to flow southwards.

5. The effect of the tank could be only to dam up the waters until they reached a certain height and then to permit their escape. But even if it were not so, I think the principle of the decision in Ramessur Persad Narain Singh v. Koonj Behary Pattuk [1879] 4 Cal. 633 applies. The channel system and the two tanks having formed a permanent feature of the country and not being intended to be temporary, and the plaintiff having utilized the water for the use of his fields for more than 60 years, he is entitled to the continuance of that flow. In making this observation I do not mean to say that the Government is not entitled to repair the breach at A. Though this breach is continued for more than 60 years, I do not think it can be said that the Government at any time abandoned the idea of restoring the breach or that they intended the state of disrepair to be permanent. The tank was not shown in Ex. A, the survey plan of 1896, but the corresponding Diglott Eegister Ex. B shows that Survey No. 44/3 and Survey No. 45 corresponded to the old Survey No. 45 and were described in the last column as Jangamgunta. I think the Government are entitled to repair their tank and their channel, and there is no duty on them to leave them as they existed in recent times. It is also unnecessary for me to discuss the effect of Fischer v. Secretary of State [1909] 32 Mad. 141 ; for, though the Government have got the right of repairing their own channels and tanks, they cannot do this so as to prejudice existing rights ; but so long as the plaintiffs' right of irrigating his inam lands already mentioned is amply protected, it seems to me that a Court has no right of dictating to Government in what manner they shall carry out the repairs. Nor is the plaintiff entitled to insist that the outlet of the repaired tank should be at the exact identical spot where it existed before.

6. I am not satisfied that this is a case in which it is enough to simply declare the plaintiff's right to obtain enough of water for irrigating 20 acres of land under Mukkuvanigunta; I think it is necessary to add an injunction to the declaration granted by the Subordinate Judge, though I cannot agree with the District Munsif that it need be in the very wide terms granted by him. I direct the modification of the decree of the Subordinate Judge by granting, in addition to the declaration given by him, an injunction directing the 1st defendant to carry out his works in such, a manner as not to interfere with the usual supply of water necessary to irrigate 20 acres of land belonging to the plaintiff under Mukkuvanigunta.

7. Each party to bear its own costs in this Court. The order of the Courts below will stand.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //