MUNGARA VENKATARAMANIAH ALIAS RAGAYYA Vs. VUDATA SUBBARAMAYYA

JUDGEMENT

(1.) The question that arises for determination in this Second appeal is whether the plaintiffs are entitled to irrigate their lands by getting water from the lands belonging to the defendants.

(2.) The plaintiffs are the owners of the land S. No. 108/B in the village Komarica in the District of Nellore. The defendants had recently purchased S. No. 109/A belonging to one Thota Lakshamma and adjoining to S. No. 108/B. The plaintiffs filed O.S, No. 479 of 1951 on the file of the District Munsifs Court, Nellore for a declaration of their right to have their lands irrigated through S. No. 109/A. The case of the plaintiffs is that for several generations past then lands which are lower in level than the lands of the defendants were being irrigated by the flow of water from the defendants lands. The action was founded upon immemorial right, custom and prescriptive title as a right of easement and under a lost grant. The defence to the action was that there was no such right, that there was neither prescriptive title as a right of easement or a lost grant, that the plaintiffs have a separate source of irrigation, that if the water is allowed to flow to S. No. 108/B through S. No. 109/A, the defendants would suffer great injury, as there will be a diminution of the supply of water for their cultivation and also the washing away of the manure of the lands of the defendants.

(3.) On these pleadings, the learned District Munsif framed appropriate issues. The first issue reads as follows : "Whether the plaintiffs are entitled to irrigate S. No. 108/B through the defendants lands in S. No. 109/A as pleaded in the plaint?" The evidence on the question in issue was mainly oral. Five witnesses were examined on behalf of the plaintiffs and six for the defendants. The learned District Munsif, appears to have made local inspection. The notes of inspection, however, had not been kept as part of the record, and on this circumstance considerable comment has been made by the learned counsel for the appellants, which I shall deal with later. On the evidence, the learned District Munsif came to the conclusion that the testimony of the witnesses on behalf of the plaintiff is true, that even according to the defence witnesses, the alternative source of irrigation of S. No. 108/B is not adequate, that till the purchase of S. No. 109/A by the defendants in 1951, there was no difficulty, as the plaintiffs land was presumably being irrigated by the flow o water from 109/A belonging to the defendants. He therefore, granted a decree in terms prayed for.