PULLAPAKALA AYYANNA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This Second Appeal comes before us on a reference by our learned brother, Basi Reddy, J. It arises out of a suit for a declaration that the penalty imposed by Government against the plaintiff for using water from the suit channel for fasli 1364 is illegal, for a direction to the Government to refund the said amount of Rs. 490-7-0 with interest at 6 per cent per annum, and for a permanent injunction restraining the Government and its officers from interfering with the plaint schedule lands belonging to the plaintiff or the bunds and other constructions erected by him therein and collecting any penalty for the wet cultivation in future.

(2.) The plaintiffs' case was that their family owned 70 acres of land in Mysanagudem of which 21 acres of land, covered by R.S. Nos. 90/1, 90/2 and 90/3 was purchased by the first plaintiff in 1927, the rest of the land being ancestral property. The lands are low in level and the rain water falling on the neighbouring lands finds its way into them, and thereafter flows irregularly in the eastern direction. There is no regular or defined channel either in or out of the plaint schedule lands. A part of that water flows into the village tank, called ' Uracheruvu '. With the help of rain water the plaintiffs and their predecessors-in-title have been carrying on wet cultivation in 6 acres of the plaint schedule lands by raising bunds and dividing the land into small plots. The plaintiffs have a natural right to use the rain water in that manner, and the Government cannot object to nor interfere with that right. The plaintiffs have also acquired an easementary right to use the rain water for wet cultivation and have been exercising that right openly and uninterruptedly to the knowledge of the Government and others. The penalty was levied at the instance of the karnam who bears a grudge to the plaintiffs.

(3.) The State of Andhra Pradesh resisted the suit contending that the Mysanagudem minor irrigation tank is a registered irrigation source for an ayacut of Ac. 182-32 cents. The rain water falling on the neighbouring lands collects in Survey Nos. 174, 175 and 176, which are registered as "assessed waste dry", and forms into a stream, popularly called 'Yerra Vagu' and flows into the minor irrigation tank from Survey Nos. 90/3 (one of the suit lands) and 105. That 'Yerra vagu' is the only source of water-supply to the tank. R.S. No. 105 is registered as' cart-track poramboke.' Taking advantage of the fact that 'Yerra Vagu' flows through S. No. 90/3 the plaintiffs have commenced wet cultivation by diverting and crcss-bunding it. The plaint case that R.S. No. 90/3 is low in level and that water from the neighbouring lands collects there and that with the help of such water the plaintiffs irrigated their lands is characterised as false. Watercourses and pathways are not separately demarcated and given separate survey numbers, and taking advantage 0f that fact, the plaintiffs cannot make use of the watei in the Government channel and evade liability to pay the water-cess or penalty. Even granting that the rain water in the neighbouring lands collects in S.No. 90/3 owned by the plaintiffs, as that water flows into the Mysanagudem tank, the plaintiffs have to pay the water-rate and penalty. The other allegations in the plaint were denied. On these contentions, the learned District Munsif framed the following issues:- " 1. Whether the plaintiffs have been irrigating their land with rain water and water collecting on fields exclusively or by diverting any water belonging to the Government ? 2. Whether the levy of penal assessment is valid and proper ? 3. Whether plaintiff is entitled to the injunctions ? "