HARIHAR MAHAPATRA Vs. HARI OTHA

JUDGEMENT

(1.) PLAINTIFFS are the appellants in this second appeal. They own only about 1/3rd of the lands in Inam village called Agulpada. Defendants 1 to 4 are owners of lands in the neighbouring village of Gopinathpur which also is an Inam village. They have been sued as representing all the Inamdars of that village. Defendant 5 is the Government of Orissa represented by the Collector of Ganjam. The rest of the lands admittedly belong to the Dharakote Estate. The dispute relates to the right of the plaintiffs to irrigate their lands from the waters of a channel known as Kochianala, by raising a cross dam on it. This Nala runs through the two villages of Gopinathpur and Agulpada. According to the evidence of one of the plaintiffs' witnesses, P. W. 3, Kochianala starts in Government villages and goes to Government villages, but passes through these two Inam villages. The case of the plaintiffs is that the Kochianala is the irrigation source of the wet lands in the Inam, village of Agulpada; that the irrigation rights were being exercised by putting up a cross dam and that there used to be a pucca masonry dam at a specified place in the channel for diverting water to their village; that the masonry dam was constructed at their cost; and that the water was being taken through a branch supply channel which is locally known as Jhala. The pucca masonry dam is not admittedly now in existence having broken down some years ago and it is the plaintiffs' case that since then they had been putting up a temporary earthen dam lower down the site of the pucca dam whenever water was required for them. It is their case that in 1940 when as per their previous practice, they put an earthen dam defendants 1 and 4 and others interfered and that at their instance, the Revenue Inspector purporting to act on behalf of the Government, got the dam destroyed. They allege that the Government have no manner of right to restrict or regulate the water supply from this channel and the Revenue Inspector on behalf of the Government had no right to interfere with their putting up the cross dam for enjoying the rights of irrigation. The defendants deny that Kochianala is the irrigation source for Agulpada. They deny further that the plaintiffs have any right to put up a dam across the Nala. While they admit the existence of the old pucca masonry dam some years ago and the existence of the Jhala, taking off from the channel towards the plaintiffs' land, they allege that the dam was for the purpose of storing water for the use of men and cattle of Gopinathpur village and that the Jhala was only a surplus channel to drain off the excess water that may be flowing in the Nala and not a supply channel to Agulpada and that neither the dam nor the Jhala were ever used for irrigating the lands of Agulpada, In addition to this common defence, an objection was taken on behalf of the Government, defendant 5, that there was no proper notice for the present suit under Section 80, Criminal P. C. and that accordingly the suit was not maintainable.

(2.) BOTH the Courts below have dismissed the plaintiffs' suit and hence the second appeal by the plaintiffs,

(3.) ON the first point, both the Courts below have agreed in holding that there wag no proper notice and that the suit is not maintainable. On the second point, which was covered by issue No. 1, the learned Munsif gave a finding in favour of the plaintiffs; but when answering the third point covered by issue No. 3, had negatived the right to irrigate the lands by erecting a cross dam. As regards the fourth point covered by issue No. 2, he held that the plaintiffs have not established that they at any time constructed the old masonry dam as claimed by them and must be taken to have impliedly found that they had no right to irrigate by means of the particular masonry dam. The learned Subordinate Judge has concurred with the trial Court on all these points excepting that on point no. 2, he was inclined to think in disagreement with the Munsif that the plaintiffs have not made out that Kochianala was the irrigation source for wet lands of Agulpada.