KAMALAMMA Vs. KALU AMMA

JUDGEMENT

(1.) These appeals arise out of five suits instituted by the same plaintiff against virtually the same defendant, the karnavan of a joint family, who is the sole defendant in two of the suits and the 1st defendant in the remaining three wherein his two sisters, who have no interest in the dispute except as members of the family and may well be ignored, have also been impleaded as defendants. Four of these suits, O. S. Nos. 211 of 1948, 249 of 1948, 279 of 1948 and 312 of 1948, were instituted in the court of District Munsiff of Althur and the fifth, O. S. No. 29 of 1949, in the court of Subordinate Judge of Palghat. The four suits in the Munsiffs Court were tried together and disposed of by a common judgment, the evidence being recorded in the earliest, O. S. No. 211 of 1948. That suit was, in effect, decreed in part while the remaining three were dismissed. From the decision in O. S. No. 211 of 1948 both the plaintiff and the defendant appealed, and against the dismissal of the remaining three suits the plaintiff appealed. The appeals were to the Sub-Court, Palghat, the plaintiffs appeal from O. S. No. 211 of 1948 being A. S. No. 49 of 1951, and the defendants A. S. No. 39 of 1951, and the plaintiffs appeals from O. S. Nos. 279 of 1948, 289 of 1948 and 312 of 1948 being A. S. Nos. 51 of 1951, 48 of 1951 and 50 of 1951 respectively. Meanwhile, the Sub-Court suit O. S. No. 29 of 1949 became ripe for trial, and at the request of the parties the suit and the five appeals were tried together, the evidence already recorded by the District Munsiff in O. S. No. 211 of 1948 being treated as evidence in the Sub-Court suit and being supplemented by the further examination of the one witness examined for the plaintiff in the Munsiffs Court and by the marking of a few additional documents. The Subordinate Judge by a common judgment dismissed all the five appeals as well as the suit, and the plaintiff has come up on appeal to this court against the decision in all the cases, S. A. Nos. 708, 710, 707 and 709 of 1952 being her second appeals in the Munsiffs Court suits, O. S. Nos. 211, 289 and 312 of 1948 respectively, and A. S. No. 592 of 1952 being her appeal in the Sub Court suit O. S. No. 29 of 1949. In S. A. No. 708 of 1952 arising from O. S. No. 211 of 1948 the defendant (or rather his legal representatives, the defendant having died meanwhile) has filed a memorandum of cross objections. We have heard all the appeals together, and counsel on both sides have agreed that not merely the evidence but also the pleadings may be regarded as common to all the cases; in other words, that the five suits may be consolidated and treated as one single suit.

(2.) The dispute is primarily an irrigation dispute, and for a proper understanding of the facts it might be as well to describe the topography of the area concerned with reference to the commissioners plan, Ext. A1. (All reference will be to the evidence as recorded in the Munsiffs Court suit, O. S. No. 211 of 1948, and if any reference is made to the supplemental evidence recorded in the Sub Court suit, O. S. No. 29 of 1949, special mention will be made). The source of irrigation is a river called the Meenkara river which as will be seen from the plan, flows roughly speaking, from north - east to south - west. The river and the lands on either side of it belong in jenm to the Vengunad Kovilakam. The land immediately adjoining the river on the west, called the Kalluketti Challa land, is held on kanom by the defendant under the kovilakam. To the west of Kalluketti Challa is the land known as Thirukolambu, and to the south and west of Thirumikolumbu is the land known as Kallankuzhi Vattam, these lands also being held by the defendant. West of Kallankuzhi Vattam, on the northern side, is the Thanneerpandal Challa land held on kanom by the plaintiff, and on the southern side is the land known as Devaswom Pattarpallom. To the west of Devaswom Pattarpallom is Kovilakom Pattarpallom. Devaswom Pattarpallom and Kovilakam Pattarpallom lie to the south of Thanneerpandal Challa and are separated from it by a road running east-west. The Devaswom Pattarpallom and the Kovilakam Pattarpallom are also being cultivated by the defendant on lease. The entire block of lands comprising Kallankuzhi vattam, Thanneerpandal Challa, Devaswom Pattarpallom and Kovilakom Pattarpallom is known compendiously as pattarpallom and, in describing the several lands, they are generally distinguished by the addition of their special names either before or after the name Pattarpallom. (There are some lands belonging to third parties in the midst of the lands named above, but with those lands or their owners we are not concerned.)

(3.) As already mentioned, the flow of the river is from north-east to southwest, and, as is to be expected, the slope of the lands is from north to south and east to west. The waters of the river are impounded at two places by the construction, from time to time, of tholanas or temporary dams made of brush wood and mud and are then taken to the lands through channels. The upper dam, namely, the northern dam, is known as the Parakkal dam and it is primarily intended for taking water to the Parakkal lands, lying on the eastern side of the river, through a channel running southwards from the dam. The southern dam is called the Ayyappanpara dam and is marked D in the commissioners plan. From this dam a channel, starting at the point Y, proceeds westwards. At D1 it crosses a water course known as the Kavarathodu by means of a culvert, and at Y2 it is joined by another channel coming from the Kavarathodu. At Y3 the channel branches into two, the northern branch, referred to in the evidence and in the judgments of the courts below as the upper chal, running along Y3 to Y7 where it joins the tank, El, called the Thirumikolumbu Eri. From Y8 which is an opening in the South - western corner of the Thirumikolumbu Eri (but is wrongly marked in the plan a little further to the west) a channel Y8 to Y11 runs southwards with a branch going eastwards from Y10. In the plaintiffs land, Thanneerpandal Chalia, lying a little distance to the east of this channel, is the tank E2, known as the Puthen Eri, and it is the plaintiffs case (as set out in the evidence but not specifically in the pleadings) that the channel has another branch, Y9 Y12 to Y16, following westwards from Y9 and leading into her tank, E2. Further, that there is a channel from Y7 to Y8 along the bund of the tank, E1, so that water can be taken direct from the river to the plaintiffs tank E. 2. (without first emptying itself into the tank El) by means of the channel Y to Y9 Y12 to Y16. This is, however, denied by the defendant.