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Kalianna Mudali Vs. the Secretary of State for India in Council by the Collector of Salem - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported inAIR1916Mad930(2); 31Ind.Cas.982
AppellantKalianna Mudali
RespondentThe Secretary of State for India in Council by the Collector of Salem
Excerpt:
easements act (v of 1882), section 47 - right of government to claim water cess for water flowing through pattah land--classification of bed as poramboke, if essential--right to easement as against government, when and how acquired--burden of proof. - .....there is now another water-course issuing out of the pond, and the defendant now claims that the rills, the kuttai and the other water-course form a natural stream. if this be so, the evidence clearly points to the plaintiff having acquired an easement to interrupt the flow through the pond by bunding it up so as to store the water. the pond has a stone revetment and even the written statement says that the water which flowed from the pond, flowed through a breach in the kuttai, or, as the evidence shows, through a breach in the stone revetment. once the easement is shown, it is for government to show under section 47 of the easements act that it interrupted that easement more than 20 years ago or that the plaintiff rendered its use impossible, and that has not been done. mere failure.....
Judgment:

1. The defendant's own case is that there was, however, an old kuttai or pond fed by two rills. There is now another water-course issuing out of the pond, and the defendant now claims that the rills, the kuttai and the other water-course form a natural stream. If this be so, the evidence clearly points to the plaintiff having acquired an easement to interrupt the flow through the pond by bunding it up so as to store the water. The pond has a stone revetment and even the written statement says that the water which flowed from the pond, flowed through a breach in the kuttai, or, as the evidence shows, through a breach in the stone revetment. Once the easement is shown, it is for Government to show under Section 47 of the Easements Act that it interrupted that easement more than 20 years ago or that the plaintiff rendered its use impossible, and that has not been done. Mere failure on the plaintiff's part to repair the breach would not amount to obstruction by the servient owner or rendering the use impossible by the dominant owner.

2. As to the claim to levy water cess, these rills run through the plaintiff's pattah land, and their beds have not been separately demarcated as poramboke; they are part of the pattah land and not the property of Government, and, therefore, the water-course cannot be said to belong to Government as decided day before yesterday in Appeal Suit No. 113 of 1910 (on the file of the High Court).

3. The appeal must be allowed and the suit decreed as claimed, except as regards the cess for fasli 1318, with costs throughout.

4. The time for payment will be three months from this date.


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