S SETHURAMAN Vs. ZIYABATHULLA

JUDGEMENT

(1.) THE parties will be referred to as per their rank in the suit. THE facts leading to the Civil Revision Petitions are as follows: THE plaintiffs purporting to represent an unregistered agriculturists' association formed for the benefit of the ryots of Alivalam Village, have laid the suit for themselves and on behalf of the ryots of the village in a representative capacity against the defendants in their personal capacity as well as representing the ryots of Koilpathu Village for a declaration that the ryots of Alivalam village alone got exclusive rights to use and utilize the water flowing in a channel called Alivalam Channel, restraining the defendants and other ryots of Koilpathu Village through a permanent injunction from in any manner interfering with the exclusive rights to use the water flowing in Alivalam Channel for irrigating the lands. THE ryots of Alivalam have a right to use the entire volume of water flown by Alivalam Channel for irrigation purposes. THE ryots of Koilpathu have no right to tap this water and they have no right to interfere with the course of the Alivalam Channel or reduce the quality or quantity of water let into Alivalam Channel there is no question of diminution in volume of water in Alivalam Channel at the instance of the Government or the Koilpathu ryots. This is by grant as well as the custom. THE defendants have their own source of irrigation through Kidarankondan Channel and that channel is the registered source of irrigation for Koilpathu Village. THE defendants recently interfered with the course of water in Alivalam Channel in an effort to illegally take water from Alivalam Channel for irrigation making the lands in Alivalam Channel starve for water and consequently affecting the yield and chances of more production of paddy. THE plaintiffs' complaints to the Revenue Authorities fell on deaf ears due to political and extra legal methods adopted by the defendants. THE Revenue owes duty to supply water to the Alivalam ryots through Alivalam Channel, which should be necessary and sufficient for the accustomed requirements of ryotwari proprietors in Alivalam Village. THE Government cannot divert water nor permit diversion of water by others to the prejudice of the plaintiffs. THE Revenue itself cannot interfere with the registered or accustomed mode of supply until they substituted another and equally efficient source and that even so third parties like the defendants have absolutely no right to cause loss to the plaintiffs through tapping of water in Alivalam Channel. THE rights and obligations as between plaintiffs and Government rest on custo m and usage. Neither the Government nor the defendants should inflict insensible injury on ryotwari proprietors like plaintiffs. A rough plan has been annexed to the plaint showing the existence and course of the two channels and the fields. At point "A" in the said plan arrangements are made by the Revenue to Koilpathu lands situate south and east of the channels. THE suit has therefore been filed for the reliefs already mentioned. "

(2.) IT has to be noticed now itself that the averments in the plaint themselves show that the government is a necessary and proper party and it has not been made a party in the proceedings.

(3.) THE application for amendment was resisted by the defendants inter alia contending as follows: By filing the amendment petition the plaintiffs want to alter the character of the suit itself. A reading of the plaint itself would show that the suit itself is one for declaration they claimed the rights as exclusive rights and the burden lies on them to do the same. Fearing that they cannot establish such a right, they have switched over to the consequential relief of permanent injunction alone. When the main relief itself goes, the consequential relief would also go automatically. When once an application under Order 1 Rule 8 of the Code of Civil Procedure was allowed, no subsequent event can revoke it or reopen it. Permission has already been granted by the Court permission cannot be revoked by way of amendment. Sensing that the plaintiffs had no basis for the suit they have come up with the application attempting to change the character and scope of the suit.