SURAPANENI PURNACHANDRA RAO Vs. SURAPANENI SEETHARAMAIAH

JUDGEMENT

(1.) These appeals are directed againt a decision of the learned Subordinate Judge, Machilipatnam by which the common judgment and decrees in O. S. Nos. 66/50 and 59/61 on the file of the District Munsif, Avanigadda were confirmed. Defendants 2, 3 and 14 in O. S. 59/61 who are also defendants 3, 4 and 9 O. S. 66/60 are the appellants in these cases.

(2.) The Rajah of Challapalli, who is impleaded as one of the defendants in both the suits out of which these appeals arose, was the original owner of S. Nos. 278, 281 and 311 of an extent of over 100 acres situate in Ayyanki village. He divided these lards into convenient plots and put them up for sale by auction in January 1950. The plaintiffs in both the suits along with some other persons purchased S. Nos 278 and 281 while the other S. No. 311 was purchased by the appellants herein in that sale held 20-1-1959. It is also common ground that the consideration for the sales was paid in full to the Rajah of Challapalli though no sale deeds have till now been executed in favour of the vendees, Subseqent to the date of the aforesaid sales, the respondents filed O. S. Nos. 60/60 and 59/61 for declaration of their easement right to irrigate their lands lying in R. S. Nos 278 and 281 with the aid of the water flowing through the bode marked as A B C D E F G H in the plan appended to the piainl in O. S. 59/61 ; and for a mandatory injunction directing the appellants to restore that water course to its original condition alleging that they unlawfully covered up part of the bode lying between points W and Z of the plan and thereby deprived their lands of the accustomed supply of water for irrigation notwithstanding that the said bode was the only source of irrigation for their lands comprised in R. S. Nos 278 and 281 right from the inception and for long over the statutory period beiore suit. The appellants resisted these suits contending inter alia that the water course A B C D E F G H, which will hereinafter be referred to as the suit channel, is exclusively intended for irrigating R. S. No. 311 and was never the source ol supply for plaintiffs' lands and that they are not entitled to claim the right in question either as an easement or otherwise. The Rajah of Cballapalli also filed written statements in both the suits supporting the stand taken by the appellants though he did not participate in the trial. Appropriate issues were framed in both the suits and commissions also were issued by the learned District Munsif for making local inspection of the area and submitting plans and reports in relation to the matters in issue between the parties. On a consideration of the evidence of the Commissioners together with their reports, as also the other evidence adduced by the parties, the court of first instance came to the conclusion that not only the defendants but also the plaintiffs are entitled to make use of the suit channel for irrigating their lands and that the right claimed bv the plaintiffs is in the nature of a quasieasement. This decision was confirmed in appeal bv the learned subordinate Judge, Machilipatnam. Hence these further appeals by the defendants.

(3.) It can he seen from the plan appended to the plaint in O. S. 59/61 that R. S. Nos. 281 and 278 purchased by the plaintiffs from the Rajah of Challapalli are to the north and north-east of R.S. Nos. 311 which the appellants purchased from the same person. The main source of supply for all these lands is Avyanki canal which lies to their west. In between the lands purchased by the plaintiffs and those of the defendants, there is a channel called 'Lanka Kalva'. In addition to this, there is the suit channel which takes off from the main Ayyanki canal at points Q. A of the plan. After passing through RS. 311 the suit channel cuts across Lanka Kalva at N D M F. of the plan and terminates at J H after passing through R, S. 281 and 278 in a northerly direction. The appellants' case, as already stated, is that the suit channel was never a source of irrigation for R. S. Nos. 278 and 281 as according to them, it is exclusively intended to supply RS. 311 and the plaintiffs' lands were receiving water only from Lanka Kalva. The first question, therefore, is whether the suit channel was the source of irrigation for R. S. Nos, 278 and 281 also? Both the courts below answered this question in the affirmative on the basis of the Commissioner's reports and the other evidence adduced in the case. No attempt is made to question the correctness of this finding as it is one of fact and also because of the futility of any such attempt in the face of the 1st defendant's own admissions under cross-examination that this channel came into existence in the year 1932 i. e. long before R. S. 311. which the appellants purchased, was brought under wet cultivation. The conclusion reached by the Courts below that Lanka Kalva has fallen into disuse as early as in 1926 having become silted up and is no longer useful as a source of inrigation is supported by unimpeachable and overwhelming evidence. This circumstance also makes it impossible to question the correctness ot S. Purnacbandra Rao v. S. Seetharamaiah (Venkateswara Rao, J.) 303 the finding that the suit channel is the only source of irrigation for R, S. Nos. 281 and 278 also which were admittedly under wet cultivation all along.