DODLA SESHAMMA Vs. SARVEPALLI KRISHNAMURTHY

JUDGEMENT

(1.) These appeals arise out of a common judgment rendered in A.S. Nos. 237 and 238 of 1955 by our brother Sanjeeva Row Nayudu, J. A.S. Nos. 237 and 238 of 1955, were also from a common judgment passed by the Subordinate Judge Nellore, in O.S. Nos. 148 of 1952 and 135 of 1951. L.P.A. No. 75 of 1960 preferred by defendants 12 to 19 and L.P.A. No. 92 01 1960 preferred by the Government relate to A.S. No. 237 of 1955 while L.P.A. No. 91 of 1960 is entered on behalf of the Government and concerns A.S. No. 238 of 1955. Both the above suits were brought by Sarvepalli Krishnamurthy and are mainly directed against the Government first defendant.

(2.) Shortly stated, the facts of the cases are these : Plaintiff and defendants 2 to 11 are the shrotriamdars in the inam village of Punjulurupadu. Their wet lands situated in that village were irrigated by the Government Sarvepalli tank water and also by a private tank of their own. They were entitled to .1/4th share in the Sarvepalli Government tank and this right was affirmed in the inam inquiry and incorporated in the inam fair register, 1861 The tank was fed by the Pennar river through Ramreddy channel and the water was supplied to the shrotriyam through a channel which directly took off from the tank. In about the year 1915 the tank was remodelled and converted into a huge reservoir at an enormous outlay by the Government and its capacity was increased several-fold. A cistern was constructed about furlong distant therefrom and the water was taken to it through sluice No.3. The water from this cistern was let through three different vents into three channels, one of which is the Punjulurupadu channel which supplied water to the lands in the shrotriyam. This vent was called lower level vent probably because it supplied water to low level lands. The other two vents opened into Gopalapuram channel and Ambur channel which supplied water to the villages Niduguntapalem, Kotampadu and Sarvepalli, etc. As a result of this remodelling the extent of water supply substantially increased. Having regard to the extra amount of water now available, it is said, the shrotriyamdars of Punjulurupadu agreed and began to pay water cess for the second crop on their lands and also for extra lands brought under cultivation thereafter. The wet lands were classified into jari wet and non jari wet; water was allowed free for the jari lands and for the other lands water-rate was charged at Rs. 4 per acre. The cess was collected at the same rate for the second crop for all the lands cultivated whether jari or non-jari. The water for the second crop used to be taken after obtaining formal permission every year. In 1949 however, when after the second crop was taken without obtaining such previous permission, the Government levied penalty at half the water-rate for the second crop and issued a demand for Rs. 1,585-6-0. The plaintiff took steps for its cancellation and eventually on appeal that was reduced to half. He also demurred to the classification of the lands into jari and non-jari. His application was dismissed by the concerned authority on 18th May, 1950. He carried the matter in appeal which was pending when the suit was brought. The plaintiff avers besides that the ryots of Isakapalem, Nidukuntapalem, Pottempadu have been continuously harassing the shrotriyamdars by cross-bunding the Punjulurupadu channel or putting planks in the vent, that the plaintiff and the other shrotriyamdars resisted these attempts and in this they were even supported by the revenue authorities but finally the vent was closed under the orders of the revenue authority, though temporarily as a result of which the crop suffered. Plaintiff's contention is that Punjulurupadu shrortriyamdars are entitled to a steady supply of 1/4th water of the tank which is equal to 1/11th water of the reservoir and which is regulated by providing an open vent without any arrangement of planking and that they are entitled absolutely throughout the year without any interruption and interference also to all the water flowing in the Punjulurupadu channel and that neither the Government nor the ryots of the villages are entitled to interfere with the flow by closing the vent or by putting a plank or by any other method of obstruction and that since by reason of the temporary planking or closing of the vent the plaintiff has suffered damages he is entitled to recover the same from the Government and also from the ryots. He further contends that the shrotriyamdars have a right to cultivate the lands to any extent, or to raise any crop thereon and in any number as they chose, that none of these should concern the Government, nor the latter is entitled to classify the land or to collect water rate for the second crop or for the non-jari wet or to collect the penalty. It is with these contentions he brought O.S. No. 135 of 1951 and O.S. No. 148 of 1952 praying for declaration of right and for issue of injunction agninst the Government not to interfere with the flow of water into the channel nor collect cess or penalty and also for recovery of damages, besides injunction against defendants 12 to 19 restraining them from interfering with the unobstructed flow of water into the channel.

(3.) The defence taken by the Government was that the 1/4th share of the water in the old Sarvepalli tank to which the shrotriyamdars are entitled was just sufficient to irrigate the extent of the land which was brought into cultivation at that time and that for one crop only, that the old Sarvepalli tank has been since remodelled and its capacity enormously in creased, that while regulating vents, provision was made for future developments and increased cultivated area and feasibility of supply of water for the same on payment of water-cess, that it is therefore wrong to say that the vent for the Pujulurupadu channel was designed exactly to permit just shrtotriyamdar's 1/4th share of water in the Sarvepalli tank, that the quantity of water allowed through the vent is much larger than the measure of their right, that it is on account of that the shrotriyamdars had agreed to pay and have been paying teervajasti after 1915 for extra water taken for the lands that they were taking water for second crop with the previous sanction of the Government and paying water-rate for the same and that they have been obtaining remissions also from the Government and that this conduct at any rate implies a binding agreement with the Government and is a complete answer to their challenge to the competence of the Government to levy water cess, that the classification made and the penalty imposed were in accordance with the provisions of law and that the suits are not tenable in law. The learned Subordinate Judge reached the conclusion that the plaintiff and the other shrotriyamdars of Punjulurupad are indeed entitled to a declaration ot their ith share of water of the old Sarvepalli tank, that this share of water was just sufficient to irrigate Acres 375-00 of land for a single crop and that since they cultivated Acres 468-00 they are liable to water-cess for the excess extent. He rejected the contention that the Government could not regulate the water supply or interfere with the vent and refused to give the injunction asked for in both the suits and also disallowed the claim for damages and dismissed the suits with costs in all other respects. On appeal, these findings were reversed and but for the claim of damages both the suits were decreed in toto.