ALAPATI SURYAKUMAR Vs. ALAPATI VENKATAKRISHNAIAH

JUDGEMENT

(1.) These two second appeals raise the same point. In second appeal No. 162 of 1967 the second defendant is the appeallant. The defendants and the plaintiff are both entitled to take water for irrigation of their fields. There is no dispute that the appellant is entitled to take water for the fields marked B.B. 1 and B-2 in the plan. The complaint of the plaintiff is that the appellant is drawing more water than he is entitled to and that he is not entitled to irrigate fields other than those mentioned above. Contrary to the usage and the existing practice, the appellant has been drawing water for the fields marked B-3 B-4 and C. The suit is, therefore laid for a declaration and for injunction. The Courts below have upheld the claim of the plaintiff. The finding of the lower appellate Court is that the appellant is entitled to put up a cross bund to the channel for the purpose of diverting water for irrigation and that the appellant has been drawing water for irrigating the fields to which he acquired a title in 1935. It is found that for nearly 22 years the appellant has drawn water in excess of his right. The lower appellate Court, however, held that the appellant is not entitled to do so as of right because the channel belongs to the Government and lies in a land belonging to the Government. The basis of the decision of the lower appellate Court is that the appellant has not perfected his right against the servient tenement because the requisite period for perfecting the right as against the Government for the owner of the servient tenement, is 60 years, and the proved user is admitted to be about a period of 22 or 23 years. The question therefore is whether the user for 22 or 23 years confers a right on the appellant as against the plaintiff and other persons who are also entitled to draw water from the same source.

(2.) The right claimed is a prescriptive right and constitutes an easement, within the meaning of the Easement Act. It is well known that an easement is a restriction upon the rights of property of the owner of the servient tenement and that no alteration can be made in the mode of enjoyment by the owner of the dominant heritage the effect of which is to increase such restrictions, beyond the normal or legitimate extent. In the case on hand, it cannot be said that as against the owner of the servient tenement the right to increase the burden has been perfected. The user falls short of the requisite period and the owner of the dominant heritage has not the right to increase the burden on the servient tenement. It is, therefore, evident that as against the owner of the servient tenement the position has remained unchanged. But it is argued by the learned Counsel for the appellant that the test is not whether as against the servient tenement a fresh right has accrued so as to enable the appellant to draw more water. But the test is whether as against the other owners entitled to draw water from the same source such a right has accrued. In my opinion, this is not a correct test. The test has to be applied with reference to the servient tenement. If with reference to the servient tenement the additional right has not accrued, the conclusion must be that the quality or content of the prescriptive right has not changed.

(3.) In the case of water rights the person who has the right of diverting water and has a prescriptive right cannot alter the conditions of user so as to divert more water than he was previously entitled to. This position has been recognised in Frechette v. La Compagnie Manufacturiere de St. Hyacinthe, 1883-84 L.R. 9 App. Cases 170. It is also settled law that a riparian owner who has obtained a prescriptive right cannot increase the burden to the prejudice of other owners entitled to draw water from the same source. This proposition has been laid own in Crossley & Sons Ltd. v. Lightowler, (1867) 2 Ch.D. 473. and Mc Intyre Brothers v. Mogavin, (1893) App. Cases 268. On the application of these principles, I have no hesitation in holding that notwithstanding the user by which a larger quantity of water has been drawn than before, the appellant has not perfected his right against the servient tenement because the requisite period is 60 years. As the prescriptive right has not in any way been altered or increased, it is open to the other owners who are entitled to draw water from the same source to question the appellant's right to take more water than he was entitled to prior to the exercise of the disputed right. The decision of the lower appellate Court is therefore, right. The learned Subordinate Judge has referred to the decision of Varadachariar, J. in Chinna Sami v. Balasundara, (1934) 67 M.L.J. 262 : A.I.R. 1934 Mad. 575.