D SESHADRI AIYANGAR Vs. THAMBU NARASIMHACHARI

JUDGEMENT

(1.) This appeal is against the decision of the District Judge of Chingleput. The plaintiff, the appellant, is a raiyatwari wet landholder in the village of Naraiambakkam, Chingleput District. His lands are along the foreshore of: the Government irrigation tank called Chitteri in Malayankulam. They are situated at such a level that they are liable to submersion and are submerged for sometime whenever the Malayankulam tank is up to its full tank level. The plaintiff sues the Secretary of State and pattadars under the tank for a declaration that they have no right to submerge the lands and for an injunction to restrain them from doing so. Both the lower Courts dismissed the suit and the plaintiff appeals.

(2.) The Chitteri tank is supplied by a channel from the Cheyyar river which enters at the north-west of the tank at a point D in the plaint plan. On the south of the tank is a cross-bund separating it from the Periyeri of the same village. In the cross-bund is an opening or sluice at the point X. The Chitteri itself has no separate discharge weir; the Periyeri has a discharge weir at the point E in the south-east. At points A and C in the supply channel of the Chitteri are calingulas. Both tanks are supplied through the channel from the Cheyyar. The case with which the plaintiff came into Court was as follows: Both tanks are filled by the supply channel to the level of the calingulas at A and C, and the sluice at X is then closed. This, he admits, has always resulted in some of the lands on the foreshore of the Chitteri being submerged, but lately, he says, the Malayankulam raiyats have been trying to increase the storage of both tanks and thereby have caused an increase in the submerged area. Their first attempt was to raise the level of the calingula at E, but that however did not increase the submerged area because the sluice X was at the same time closed and the full tank level of Chitteri was not disturbed. The next move was to do away with the shutter at X and to increase the bund of the Chitteri at the inlet D in length and height. A complaint to the Board resulted in orders to the Public Works Department to restore the bunds to its original state. All these attempts to store more water therefore failed. Next an attempt was made to raise the level of the calingulas at A and C. A complaint to the Collector defeated this plan. Finally the Public Works Department put up a screw shutter at D which had the effect of bringing the full tank level of the Chitteri up to that of the Periyeri, and it is this which has resulted in the increase of the submerged area, and this is the cause of action, which dates from about 1912.

(3.) The main contention of the plaintiff in the lower Courts was that the Periyeri and the Chitteri are really two self-contained tanks, the Periyeri being supplied first from the Chitteri up to the level of the calingulas A and C and then shut off by closing the sluice at X, and then filled up to the level of the weir at E by surface drainage, while the Chitteri remained at the level of A and C, that that level has been recently interfered with by this cross-bund and the shutter at D which prevents the calingulas at A and C acting. I find difficulty in understanding how the shutter at D can by any process raise the full tank level of the Chitteri above the level of the calingulas at A and C. If the calingulas at A and C are acting, the full tank level cannot go above their level. The findings of fact in which both the lower Courts concur are: first, that as the plaintiff admits, there has always been a seasonal submersion of the foreshore lands of the Chitteri, Ex. X indicates that that has been so even so far back as 1832; second that the sluice at X has not been closed within the memory of man and therefore the level of the two tanks has always been the same, and that the sluice, so far from being a method of keeping the tanks separate, was really a means of uniting thorn since the cross- bund was necessary for a village passage way; third, that the full tank level of both is therefore determined by the calingula at E, constructed in 1870 and never altered, the construction of which did not alter existing conditions, since, according to the plaintiff, it did not increase the submerged area; fourth, that the full tank level was always maintained by calingula E, and to prevent its being lowered by the calingulas at A and C, which are at a lower level, plank shutters had all along been placed in position at D and the new screw shutter complained of at D has merely replaced the customary planks.