PAKKLE Vs. P AIYASAMI GANAPATHI

JUDGEMENT

(1.) THE appeal arises out of a suit filed by the plaintiffs in a representative capacity on behalf of the villagers of Pottalkadu to restrain the defendants from laying salt pane in the bed of the suit tank thereby making the water in it useless to the people for bathing and taking drinking water. The defendants contended that the plaintiffs are not the representatives of Pottalkadu village, that the suit land is not a tank, that only during the rainy season there used to be stagnation of water in the pits, that the villagers used to take water from another tank, that there are salt pans all round the suit land, and that the suit land is fit only for raising salt pans and that there is no drinking water in that locality. The trial court held that some of the villagers used to take water from the suit tank, that the cattle also used to drink water from it and that the villagers used to take bath and wash their cattle therein. All the same, it took the view that as during the past about ten years, a number of persons have laid extensive salt pans almost on all the sides of the suit tank with the result that even if the rain water were to gather and flow into the suit tank, it cannot but be saltish and it cannot be said that water has become saltish because of the defendants laying salt pans in a portion of the suit tank and therefore, the plaintiffs were not entitled to the relief of injunction asked for against the defendants. On appeal, the lower appellate court held that the property in dispute is a tank and it has been recognised and used as such by the villagers in general and that the question as to whether the water from the tank is fit for domestic use or not is foreign to the scope of the present enquiry, but that the question is whether the defendants, though they are some of the villagers, are as of right entitled to convert the property or any portion there of into salt pans that they are not so entitled and therefore any injunction as prayed for can issue. Hence it allowed the appeal and decreed the suit.

(2.) IN this court it is urged on behalf of the appellants that the suit tank being a government property and not the property of the villagers in general, there can be no injunction restraining the defendants from converting the bed of the suit tank into salt pans, and that it is for the Government, who are the owners of the tank to prevent the defendants from doing anything on their property. There is no doubt that the suit property is a tank poromboke. There is no doubt either that the plaintiffs have no proprietary rights in it, even though a committee of the village might have been looking after it; nor have the defendants any permission granted to them to use the tank bed for purposes of converting it into salt pans. There is also no doubt, as held by both the courts below, that the water in the suit tank has been used by the villagers in general. It is also reasonably clear from the evidence that the water must have been so used from time immemorial. Even so, the learned appellate Judge is not correct in saying that the question whether the water from the tank is fit for domestic use or not is foreign to the scope of the enquiry and the only question is whether the defendants are, as of right, entitled to convert the property or any portion thereof into salt pans? The plaintiffs not being the owners of the land, are not entitled to an Injunction restraining the defendants, unless some right of theirs is infringed. Even if the defendants were unlawfully converting the tank into salt pans, it is a matter between them and the government, who are the owners of the suit land. The plaintiffs can have a cause of action, only if they had some right in the tank and therefore the view of the lower appellate court on this part of the case is not correct. It was, therefore, urged on behalf of the appellants that the appeal should, at least, be remanded to the lower appellate Court for giving a finding as to whether the plaintiffs have any right over or in respect of the tank as a finding on that point is necessary for a proper disposal of the appeal. I considered that it is unnecessary to remand the appeal for that purpose and I have, therefore, been taken through the evidence in this Case by the advocates on both sides and I am satisfied that the finding of the trial Court that some of the villagers used to take water from the suit tank, that their cattle also used to drink water from the same, and that they used to take bath and wash their cattle therein, is correct. But, naturally enough, not everybody in the village might have been using the water of the tank, nor is it necessary that it should have been so used before the villagers can acquire a common right in respect of the water in the tank. That there used to be water in this tank is also clear from the evidence of D. W. 1, who says that the overflowing from the suit land will flow towards Mathikettan odai. it is difficult to accept the evidence of defendants' witnesses that during rainy season water used to spread in the suit land, but would drain off in the next day. I am of opinion, therefore, that the villagers have an immemorial right to the use of the water in the tank for their drinking and bathing purposes, as also for bathing and washing their cattle. it is also reasonably clear from the evidence that there is some water at least in the tank and that the water has become saltish. The evidence on behalf of the plaintiffs clearly establishes this point and it has not been seriously assailed or shaken by cross-examination. Though the water for drinking purposes seems also to be taken from other places in the village, it does not mean that the plaintiffs have no right over the water in the tank. it is clear from the evidence on either side that the water is now saltish. It is, however, urged on behalf of the appellants that there are salt pans all round and that must be responsible for the water in the tank becoming saltish and that therefore, no injunction can issue in this case. it is further urged that, in any case, the action of the defendants has only to a small extent, been responsible for the water becoming saltish and that, therefore, no injunction can issue. It is this argument that seems to have impressed itself on the trial judge and to have been responsible for his dismissing the suit,

(3.) ONCE it is established that the villagers have a common right over the water in the tank for purposes of using it for their bathing and drinking purposes, any interference with that right would give them a cause of action, even though the interference is not in respect of a land belonging to the plaintiffs. The action of the defendants would amount to a nuisance. According to Professor Winfield, a nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it (Winfield, Law of Torts 4th Edn. page 436), According to Clerk and Lindsell on Torts, 1947, nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, quasi-easement or other right used or enjoyed in connection with land, when it is a private nuisance. According to Salmond on Torts, 13th Edn. page 233-" the pollution of a natural stream is a wrong actionable at the suit of any riparian owner past whose land the water so polluted flows, and, as we have just seen, pollution even of underground water is also actionable. The term pollution is here used in a wide sense to include any alteration of the natural quality of the water whereby it is rendered less fit for any purpose for which in its natural state it is capable of being used. Thus, it is actionable to raise the temperature of the stream by discharging into it hot water from a factory, or to make soft water hard by discharging into the stream water impregnated with lime, no less than to pollute the stream by pouring into it the sewage of a town or the chemical refuse from a factory. . . . . " Then he states as follows at page 234: