(ALLAM) NARASIMHULU Vs. (GUTTA) BHADRAYYA

JUDGEMENT

(1.) These are connected appeals and arise out of a suit brought by plaintiff (respondents) for a declaration that only the raiyats of the lands within the ayacut of Selavani and Karicherlavari tanks are entitled to use the water flowing through the suit Solavani channel and that the defendants have no right to use that water for cultivating as wet their lands on either side of the channel and for an injunction restraining them from taking the water of the channel to their lands for wet cultivation by putting up cross bunds or palmyrah spouts and also for directing the defendants to restore the channel to its original condition. Both the lower Courts have found the plaintiffs contention to be substantially true and passed a decree in their favour, granting the reliefs asked for by them subject to a slight qualification, S.A. No. 470 of 1930 has been filed by defendant 12 and 8. A. No. 334 of 1930 by some of other defendants, Plaintiffs and others own about 400 acres of manaool wet land under the ayacut of Solavani and Karicherlavari tanks. The source of supply for those tanks is Tammileru, which is doubtless a natural stream. From that stream the suit channel called Solavani channel was cut in order to serve as a feeder to the afore-said tanks. After these tanks became full, the water flowing through the suit channel used to be taken to two other tanks mentioned in the plaint. There is another tank called Kotta Cheruvu to which water is supplied from Tammileru by means of a branch from Dondulur channel.

(2.) It is found by both the Courts below, that the defendants contention that the water from Tammileru flows through the suit channel into Kotta Cheruvu is false. Most of the defendants lands lying on either side of the suit channel have been found to be dry, and it is only since 1917 or 1918 that the defendants have been trying to convert those lands into wet. Defendant 12's land alone is found to be mamool wet, but the finding of both the lower Courts is, that that land is fed by Kotta Cheruvu and that no right to take the water of the suit channel for irrigating that land has been established. There is no doubt that the plaintiffs and others who own wet lands under the ayacut of Solavani and Karicherlavari, tanks, have permanent rights of occupancy therein, and the suit channel is a feeder for those two tanks. After a full consideration of the evidence and circumstances of this case, it is found by both the Courts below that the raiyats holding wet lands within the ayacut of Solavani and Karicherlavari tanks are entitled to the exclusive user of the water flowing through the suit channel and to the unobstructed flow of water through the same, in order to fill up the aforesaid tanks for the purpose of irrigating their wet lands, within the ayacut. As observed by the learned District Munsif, the rights so acquired can be traced to an implied grant by the zamindar and by reason of the long enjoyment of the entire quantity of water flowing from the suit channel in the aforesaid manner, as of right, an easement by prescription or a customary right has been acquired even as against the zamindar. These findings are amply borne out by the evidence and must be accepted in these second appeals.

(3.) It is however contended that the suit channel should be deemed to be a natural stream and therefore the defendants who own lands on either side of it, are en-titled to riparian rights which could not be lost by mere non-user. The Courts below have held that the suit channel is not a natural stream but only an artificial water course. That finding is challenged by setting up the contention that as the suit channel flows out of Tammileru which is a natural stream, it must also be taken to be a natural stream.