SECRETARY OF STATE FOR INDIA IN COUNCIL, THROUGH THE COLLECTOR OF TINNEVELLY; SHANMUGA SUNDARA MUDALIAR Vs. AMBALAVANA PANDARA SANNADHI AVURGAL; AMBALAVANA PANDARA SANNADHI

JUDGEMENT

(1.) The plaintiff is the inamdar of Adangarkulam village in Nangureri Taluq. He states that a natural stream, Hanumanadhi, takes its rise in the Western Ghats and flows through his village, that he has been taking the water of that river to his tanks, six in number, at certain seasons of the year when it was required for the irrigation of his lands, that in order to divert the water into his channels, he had to put up a dam across the river-bed as the river-bed is on a level lower than that of the channels and water could not flow into them when it was knee deep or less than that; and that he has been doing so, according to him, from time immemorial. The dam consisted of a masonry anicut with interstices between the vertical stones which he filled up, when necessary, with mud or Palmyra leaves. The plaint states that the masonry anicut in some places was damaged, and he had, therefore, to put up a temporary mud dam in front of it for diverting the water into his channels. The 1st defendant, the Government, recently levied an assessment from him for taking the water into his tanks. The other defendants are the ryots of some of the neighbouring villages who also deny plaintiff s right to take water as claimed by him. He, therefore, seeks a declaration of his right to take the water of the stream to his tanks by diverting it into the channels, and, for that purpose, to put up a dam across the river-bed, and also a declaration that the Government has no right whatever to levy any tax on him for taking such water. The 1st defendant, who is the Secretary of State for India in Council, denies that the river, where it passes through his village, belongs to the plaintiff. It is asserted that the river belongs to Government and that the plaintiff, at the time of the inam grant, did not acquire any rights claimed in the plaint to the use of the water. It is also denied that the anicut belongs to the plaintiff or that he is entitled to put up any dam across the river or to take water, as he alleges, through the channel for purposes of irrigation. The Government also allege that the plaintiff can only take water to irrigate the lands which were under wet cultivation at the time of the inam grant; and that the assessment is imposed because he utilised the water of the stream for the purpose of raising nanjah crop on lands on which it was not usual to raise such crop before. The other defendants also deny the plaintiff s right. They allege that, if the plaintiff is allowed to take water as claimed by him, irretrievable loss and injury would be caused to the defendants who hold lands below. The right of the Government to the river-bed, however, is not accepted by them in their written statement.

(2.) The facts which are admitted or proved beyond doubt are: The Hanumanadhi river takes its rise in the Western Ghats, and, after running through various ryotwari villages, in the midst of which the plaintiff s village is situate, flows into the sea. Three of the hamlets belonging to this village lie on the western side of the river and the fourth or the last one Umraoli hamlet lies on the eastern side of it. For the irrigation of the lands belonging to these three hamlets lying to the west of the river, there are five tanks and there is one tank for the Uramoli hamlet on the east side of the river. The masonry anicut which is referred to in the plaint is built across the river-bed to raise the level of the water to divert it into the channel which takes water from the stream to the five tanks of the three hamlets. That masonry anicut, being now in disrepair, the plaintiff has put up a mud dam in front of it to divert the water. At some distance below that anicut the river bifurcates, and at that or near the point of bifurcation, the plaintiff has put up a mud dam to prevent the flow of water along one of the branches and to make it flow into the other, that is, the eastern branch, that he might take it into his Uramoli tank.

(3.) The plaintiff s case is that this system of taking water into his tanks has been in existence from time immemorial.