BUDEGI CHINNA NAGISETTI Vs. PANYAM CHINNA VENGAIAH

JUDGEMENT

(1.) The plaintiff is the appellant. He had filed a suit for declaration of his right to irrigate his lands from the spring waters through CCC channel through C1 C1 C1 and C2 C2 C2 channels and for an injunction against the defendants from interfering with the plaintiff's right. The allegations in the plaint are that there are two spring ponds in the village of Bukkapuram. The fields belonging to the ryots of the said village are mostly irrigated from these spring ponds by means of channels. The water from these channels after reaching the land bearing S.No. 169 flows through the defendants' land bearing S. No. 137 and reaches the lands of the plaintiff bearing S. No. 138 and S. No. 139. It is the case of the plaintiff that the channel C2 C2 C2 has been irrigating his lands and that the defendants had wrongfully obstructed the flow of this channel at their field bearing S. No. 137 and thereby deprived the plaintiff of his right to irrigate. Defendant No. 1, is the owner of S. No. 136/1, Defendant No. 2, is the owner of S. No. 137 and Defendant No. 3, is the owner of S. No. 131. The defendants in their written statement resisted the claim of the plaintiff on the ground that the suit channel C2 C2 C2 was never in existence at any time before the suit, and that the plaintiff had never irrigated any of these lands by the said channel. They also pleaded that the lands of the plaintiff are classified as dry and he had been raising crops with the help of rain water and sometimes with the help of rain water overflowing from the adjoining wet lands. They finally pleaded that the plaintiff had not exercised the right claimed by him at any time within a years prior to the institution of the suit, and as such, he was not entitled to enforce such right even if he had exercised the same sometime before. The trial Court found that the plaintiff had taken water through the suit channel irrigating the lands for a period of 20 years prior to 1955 but disbelieved the plaintiff's assertion that even subsequent to 1955, he had been exercising his right. The trial Court found that for about seven years prior to the suit, the plaintiff had not exercised his right although he had exercised it for a period of 20 years prior to 1955 and, therefore, non-user for more than 2 years before the suit disentitles the plaintiff to claim any right. Consequently the trial Court had dismissed the plaintiff's suit. The appellate Court, however, reversed the finding of the trial Court and held that the suit of the plaintiff cannot be dismissed on the ground that the plaintiff had not used the channel during the period of seven years before the suit, as there was no obstruction by the defendants ; nevertheless, it dismissed the suit on the ground that the plaintiff has not established that he has taken the water as of right.

(2.) Mr. Ayyapu Reddy, the learned Advocate for the appellant herein contends that the appellate Court had found that from the entries in the settlement Register, it is clear that two of the plaintiff's lands bearing S. Nos. 138 and 139, are included within 34 acres of irrigable dry extent for which source of supply is the same as for the lands registered as wet ; therefore, it ought not to have dismissed the suit. The learned Advocate for the respondent contends that the suit of the plaintiff cannot be decreed as it was found that he was not using the channel for more than five years before the institution of the suit and that he trial Court was correct in holding that the plaintiff had not exercised his right within two years of the filing of the suit, and, therefore, the plaintiff is not entitled to the benefit of section 15 of the Easements Act.

(3.) I am of the opinion that the contention advanced by the learned Advocate for the respondent is correct. Section 15 of the said Act provides that where a right of way o any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such other easement shall be absolute. The section further provides that each of the said periods of twenty years shall be taken to be period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. It is manifest there from that the period of 20 years would be calculated from two years next before the institution of the suit. If the plaintiff had not been exercising his right without interruption even for more than two years next before the institution of the suit, he would not be entitled to the benefit of section 15 of the Easements Act. The trial Court had found that the plaintiff had taken water from the suit channel to irrigate his lands for a period of 20 years upto 1955, but it has disbelieved the plaintiff's claim relating to the exercise of his right even subsequent to 1955, that is to say, for about 7 years before the filing of the suit. In other words, the trial Court found that the plaintiff has not exercised the said right for seven years before the filing of the suit although he had exercised if for a period of 20 years prior to 1955. In such circumstances, I am of the opinion that the trial Court was correct in dismissing the suit of the plaintiff, because it is clear from the wording of section 15 that the period of 20 years will have to be calculated from two years next before the institution of the suit. I am supported in my view by a decision of the Madras High Court reported in Nachiparayan v. Narayana. I, therefore, hold that the" plaintiff's suit cannot be decreed. Mr. Ayyapu Reddy, next contended that under section 47 of the Easements Act, in order that a continuous easement should be extinguished it should totally cease to be enjoyed as such for an unbroken period of 20 years, that in this case, there is no evidence on behalf of the defendants that the continuous easement was totally ceased to be enjoyed by the plaintiff for an unbroken period of 20 years and, therefore, it should be taken that the easement claimed by the plaintiff has not been extinguished. I cannot accede to this contention also because section 47 of the Easements Act, would be applicable to the case where the easement has been established and this easement is extinguished only when it totally ceases to be enjoyed as such for an unrboken period of 20 years. In the instant case, easement has not at all been established so far. Hence section 47 of the Easements Act has no application to the case. Mr. Ayyapu Reddy, further contended that the appellate Court had found in paragraph. (8) of its judgment as follows : " From the above entries, in the settlement register, it is quite evident that at least two of the plaintiff's lands bearing S. Nos. 138 and 139 are included within 24 acres of irrigable dry extent for which the source of supply is the same as for the lands registered as wet." Therefore, having found as above, the lower appellate Court was incorrect in holding that in order to complete the easement the appellant has not established that he has taken water as of right. In fact, the appellant was taking water from the same source as for the lands registered as wet, which would go to show that as of right he was entitled to take water from the said channel. I cannot accede to this contention also because it is to be noted that the lands belonging to the appellant are of sui generis type, viz., irrigable dry and they do not come within the ambit of wet lands or dry lands but are a class by themselves. The appellant cannot cultivate his lands as that of wet ayacutdars. It is only when their lands have been irrigated to the full and there is surplus water then only the irrigable dry lands of the appellant would be entitled to get water from the same channel. Hence, the appellant cannot claim supply of water as of right along with that of the wet ayacutdars.