KOMMAPALLE NARAYANA REDDY Vs. KALAVAPALLE VENKATRAMANAPPA

JUDGEMENT

(1.) This civil miscellaneous appeal is preferred against the judgment of the subordinate Judge, Chittoor who, on appeal reversed the judgment and decree of the District Munsif, Madanapalle in O. S. No. 410 of 1954 and remanded the suit for fresh disposal in the light of the observations contained in his judgment.

(2.) The plaintiffs, who alleged themselves to be the representatives of the major ayacutdars under Errakalva, instituted the suit against the defendants who were said to be major ayacutdars under Kambhamrayunikalva. Both these kalvas are admittedly irrigation channels. Errakalva appears to irrigate 32 acres of land of the plaintiffs and some others and Kambhamrayunikalva 75 acres of lands of the defendants and others. Both these irrigation channels rise from the bed of the river Bahuda in Madanapalle taluk. At a particular point, the Kambhamrayunikalva turned northwards from the bed of the river and entered into hard ground in its onward course. At that point, there were boulders in the bed of the river. It was customary for the ayacutdars under the Kambhamrayunikalva to put up a temporary bund between these boulders on the bed of the river so as to divert water from the bed of the river to the Kambhamrayunikalva. Errakalva, which irrigates the lands of the plaintiffs and others, has a source in a spring head about 1 1/2 furlongs down the river from the point where Kambhamrayunikalva takes its turn northwards into hard ground as already mentioned. The case of the plaintiffs was that the temporary bund, which the defendants used to put up between the boulders in the bed of the river, was increased in height and strength by the defendants in the five years before suit with the result that the customary supply of water, which the plaintiffs used to get from Errakalva for irrigating their fields was materially diminished. The plaintiffs therefore asked for a declaration of their right to ensure that the temporary bund constructed by the defendants was kept at a height of 1 1/2 feet and was made only of loose sand and earth and not of any hard substance. They also asked for a permanent injunction to restrain the defendants from increasing the height of the bund or from constructing a bund with material other than sand or earth. The court of first instance granted a decree as asked for by the plaintiffs. On appeal, the learned subordinate judge reversed that decision, and remanded the suit for fresh disposal as stated already. The main reason for his doing so was that the plaintiffs failed to stow that on account of the action of the defendants complained of, viz., raising the height and increasing the strength of the temporary bund, the customary supply of water, which they use to obtain previously from Errakalva, was diminished. If the customary supply of water to the plaintiffs remains undiminished the plaintiffs surely cannot claim any relief against the defendants even if it is assumed that the defendants obtained some benefit by reason of the increased height and strength of the bund as alleged by the plaintiffs. The clearest and easiest way of proving that the customary supply of water, which the plaintiffs used to get from Errakalva, was diminished would have been to show that after the defendants heightened and strengthened the bund, the plaintiffs did not get sufficient water for their agricultural operations and that therefore their crops suffered. It will not be evidence, if one merely assumes that there must have been a diminution in the customary supply of water. Any such guess is likely to be wrong and misleading, and it will be erroneous on the part of a court to base its judgment on it. Therefore a court has a duty to demand good and clear evidence to show that the plaintiffs accustomed supply of water from Errakalva was diminished by the action of the defendants. The learned subordinate Judge, who heard the appeal from the judgment of the court of first instance, was not satisfied that there was such evidence on the side of the plaintiffs. It seems to be unexceptionable to say that if the customary supply of water to the plaintiffs had diminished, their agricultural operations would have been affected leading to the impairment of their cultivation and loss of crops. It is evidence regarding this adverse result that the learned Subordinate Judge said was absent. That was the reason why he remanded the case to the trial court to give an opportunity to the plaintiffs to adduce evidence to show that the customary supply of water, with which they used to irrigate their lands in the ayacut of Errakalva was appreciably diminished and that consequently their cultivation of the lands suffered. However the plaintiffs have thought fit to come to this court complaining against this order of remand made by the lower appellate court. The appellants learned counsel insists that his clients do not wish to adduce any further evidence and are content to take a decision from court on the evidence already on record.

(3.) The learned counsel for the defendants-respondents states before me that he has no objection if the lower appellate court disposes of the appeal on merits on the evidence on record. The respondents learned counsel makes it further clear by saying that the order of remand really injured his clients and favoured the appellants. He therefore says that he has no objection to this C.M.A. being allowed and the appeal being sent back to the lower appellate court for disposal on merits in the light of the evidence already on record.