BISHNU PATEL AND ORS. Vs. KAMAL LOCHAN ROUT

JUDGEMENT

(1.) THIS is an appeal by the Defendants against the concurrent decisions of the two lower courts decreeing the Plaintiff's suit for declaration of his right to take water from the Nazul tank of his village by lift irrigation (tend) for growing vegetables on his plots Nos. 16 and 19 of village Pandripathar in Sambalpur district and for other consequential reliefs.

(2.) THE Defendants are the Gaontia and Punches of the Village. The Plaintiff's case was that he was entitled to take water from the Nazul tank of the village for the purpose of irrigating his crops on plots Nos. 16 and 19 and that in exercise of this right he on 3 -1 -47 fixed up a tenda for lifting water from the tank. The Defendants, however, objected to his taking water by lift irrigation, dismantled the tenda and refused to permit him to irrigate his vegetable crops. In consequence of their action his vegetables were completely damaged. Hence he claimed damages also. The Defendants while admitting that the Plaintiff had the right to take water from the tank for irrigating his lands by cutting the embankment, if necessary, denied his right to take water from the tank by lift irrigation. Hence they justified their action by saying that the Punches of the village they had -the right to control the use of the water by the cultivators of the village.

(3.) THUS the settlement papers show clearly that the Plaintiff was entitled to take water from the tank for irrigating the disputed plots. Doubtless, they further show that he could take water by cutting the embankment (ghais). It was urged that in the absence of express authority to take water by lift irrigation in the dry season the Plaintiff's right to use the water of the tank was limited to the cutting of a channel during monsoon season for the purpose of growing crops. I am unable to accept such an argument. Once it is recognised that the Plaintiff was entitled to use the water of the tank for the purpose of irrigation the mode of drawing out water must be left to his discretion so long as the right of the other villagers to use the water of the tank is not materially impaired. It is true that the settlement authorities took special care to note the right of some of the owners of lands to cut the embankment for the purpose of taking water. But this is because cutting of an embankment may cause material damage to the embankment itself and may also open out a wide channel which may cause damage to others' fields. Hence, the express conferment of such a right might have been thought necessary. But the taking of water by other methods such as by tenda or by any other alternative method of lift irrigation is of a comparatively minor character and need not find a special mention in the settlement entry. It is true as pointed out in the wajib -ul -arz, that there was a: local controlling authority for the purpose of preventing the rival cultivators from quarrelling with one another while taking water from the tank for the purpose of irrigation and for that purpose the Lambardar and the Punches were made the controlling authorities. In exercise of this controlling power they would undoubtedly be entitled to regulate the use of the water by the other cultivators of the village and they may, in special circumstances, be entitled to prevent one of the cultivators from taking more than his fair share of the water so as to affect the rights of others. But the extreme contention put forward on behalf of the Defendants to the effect that the Plaintiff had no right at all to take water by lift irrigation is not sustainable from the settlement papers. It also appears that the Plaintiff and his predecessors -in -interest were accustomed to take water by lift irrigation for more than twenty years. Moreover, on a previous occasion when a complaint was made against a cultivator of the village for having thus taken out water by lift irrigation the Deputy Commissioner refused to interfere. This is an instance to show that notwithstanding the absence of any special mention in the settlement entry the revenue authorities thought that lift irrigation was one of the normal methods for taking out water from a tank and so long as a cultivator had the right to use the water of the tank it did not matter very much as to how he took out the water.