VADREVU VENKATARATNAM Vs. RAJAH SAHEB MEHARBAN I DOSTAN, SRI RAJAH RAVU VENKATA KUMARA MAHIPATHI SURYA RAO BAHADUR SARDAR GARU, MAHARAJAH OF PITHAPURAM AND ANR.

JUDGEMENT

(1.) THE appeal arises out of a suit brought by the plaintiff, respondent in the appeal, the Maharajah of Pithapuram, who is the proprietor of a zamindari in East Godavari, claiming compensation for water for irrigating a second crop on the first defendant's (appellant's) inam land situated within the zamindari for fasli year 1347 (corresponding to A.D. 1937 -38). It is common ground that the defendant is entitled to water free of charge in respect of the first crop. The learned District Munsiff of Peddapuram dismissed the suit; an appeal by the plaintiff was allowed by the learned Principal Subordinate Judge of Coconada who decreed the suit; the defendant preferred a second appeal to this Court, which was dismissed by Wadsworth, J. This is an appeal pursuant to the Letters Patent by the defendant seeking to have the decree of the learned District Munsiff restored.

(2.) THE appellant's inam land is 48 acres in extent, including a tank of about 3 acres in the centre situated to the south of the river Yeleru over which river the respondent has proprietary rights where it runs through his zamindari. The northern end of the appellant's inam is about one furlong distant from the river, other land being situated between the north boundary and the river bank. The respondent's land is on the east, west and south sides of the inam. A channel, known as the China Thadi Doddi Kalva, runs southwards from the river bank, between the land north of the suit inam and the respondent's land, for about one furlong ; it then continues in the same direction between the inam and the respondent's land for about another furlong until it reaches the tank. The channel has an open head at the river and the flow of water into it is not controlled by the respondent and he has no authority to close it. Water flows from the river through the channel into the tank. The channel does not supply water save to the appellant's tank and from where it is drained of for the purpose of irrigating the inam land. All the water flowing through the channel is exclusively for the appellant's use on his land and is his sole supply. If, at any time, the water in the river sinks below the channel level, the appellant dams the river, thereby increasing the water height so as to enable water to flow from the river into the channel. He carries out all maintenance and repairs to the channel. The suit inam is in the village of Mallam ; throughout the year, covering the period of two crops, the turn system is in operation by which, in every cycle of 18 days, water flows to all villages of the Pittapuram Estate, including Mallam, for six days and out of which it flows for three days through the channel to the appellant's tank ; another channel or other channels convey water to other lands in this and in other villages. Prior to fasli year 1347, no demand was ever made by the respondent for water rate for a second crop irrigation from the appellant although, for many years, water rate has been demanded and paid in respect of other lands in the estate which are supplied by channels other than the China Thadi Doddi Kalva.

(3.) THE learned District Munsiff in the trial Court, accepted the evidence given by the karnam of Mallam village, who was called on the respondent's behalf, the appellant, his tenant until about 1924, of the suit inam, and a neighbouring cultivator. He rejected the testimony given by two other witnesses called for the respondent, which, to a limited extent only, conflicted with the other evidence,. The learned Subordinate Judge, in his judgment on appeal misstated some of the oral and documentary evidence ; he said the documentary evidence showed that, whenever a second crop was raised, the respondent levied water rate from the appellant and that sugarcane crop was not raised continuously during the last ten or twelve years. That is not in accordance with the documents or oral evidence. The findings of fact by the learned District Munsiff stand.