SRI SRI SRI VIKRAM DEO VARMA AND AFTER HIM SRI SRI SRI KRISHNA DEO THROUGH HIS NEXT FRIEND, SRI S.T. MIRANI, COLLECTOR OF KORAPUT Vs. APPANNA PADHY AND AFTER HIM AMMANNA PADHIANI AND ORS.

JUDGEMENT

(1.) THIS is a Plaintiff's appeal in a suit for declaration of title to and for a permanent injunction restraining the Defendants from interfering with the distribution of waters of, and in the alternative for possession of a tank and tank -bed in village Lavuguda within the Zamindari of Jeypore in Koraput district. The Plaintiff, as the Zamindar of Jeypore instituted the suit, but as the Estate has since been taken over by the State Government under the Orissa Estates Abolition Act, the State of Orissa has been substituted as the Appellant in place of the ex -Zamindar of Jeypore. The Defendants are the tenants of the said village and own lands on the north, east and west and to a small extent in the South of the disputed tank. They claim the tank and the tank -bed to be their ryoti property. Admittedly, the tank is fed by a Gedda or hill -stream which comes from some distance. The area of the tank is about 15 acres. A part of this extent constitutes the tank -bed and is being cultivated by the Defendants. The western portion of the tank which is deep and measures about 6 acres and odd in extent holds rain -water which is used by the Defendants for irrigation purposes.

(2.) THE Plaintiff's case was that several other tenants of the village had easementary right of irrigation in the water of the tank, but latterly the Defendants who purchased most of the surrounding lands asserted their claim to the tank itself. In 1940, there was a dispute between the adjoining tenants owners and the Defendants over the distribution of the water of the tank and the matter was taken to the notice of the Amin posted at Gunupur, in which taluk the disputed tank is situated. The primary issue between the parties, an which they went to trial is issue No. 1, viz

(3.) ON behalf of the Defendants, Defendant No. 2 examined himself as well as his clerk D.W. 1. Although it was his case that he put up the tank on his own ryoti land no evidence has been let in to show that the tank bed was ever ryoti land at all, Nor did he produce any accounts to show that any money was spent by him either for excavation or for repairs to the tank, He even pretended that he did not know whether his lands to the east of the tank were higher or lower than the bed of the tank. He also pretended that he did not know when the tank was repaired. He said that he could not identify his father's hand -writing in Ext, 4 the receipt filed by the Plaintiff. The learned Subordinate Judge who tried the suit rightly rejected the testimony of this witness as wholly insufficient and unreliable. The learned Judge also felt that the evidence on the side of the Plaintiff was not very satisfactory, but held that there was a presumption that the tank belonged to the Defendants as a ryot under the Madras Estates Land Act is entitled to effect improvements upon his land and excavation of tanks is in the nature of an improvement to land. This reasoning does not appeal to us as sound.