NARASAPPAYYA Vs. SGANAPATHY RAO

JUDGEMENT

(1.) The plaintiff prays for an injunction to prevent the defendants from cutting a channel from a tank, from which he waters some of his fields, so as to deprive him of the water. He alleged, inter alia, that the defendants were threatening to construct a dam to prevent the water from flowing to his fields, but this they denied.

(2.) The District Munsif, as I understand him, held that the plaintiff has a right to a supply of water from the pond in question to the exclusion of the defendants and on that ground issued the injunction prayed for. The District Judge holds that the plaintiff has no right to the water of the pond, though he had been in the habit of taking it through a channel for some time not exactly determined, but less than twenty years. He dismissed the suit.

(3.) In second appeal it is contended that on the finding of the District Judge we ought to hold that the plaintiff, though he has not by prescription acquired a right to take the tank water through his channel, is nevertheless entitled, having been for some time taking it in that way, to preventive defendants, who have also no rights to take the water, from taking it so as to deprive him of his supply, and in support of this contention reliance is placed on Kondapa Rajan Naidu v. Dwarakonda Suryanarayana 6 Ind. Cas. 266 : 20 M.L.J. 803 : 34 M. 173 : 7 M.L.T. 352 : (1910) M.W.N. 117. It is perhaps unfortunate that in th at case the learned Judges have referred to the right for which protection was there claimed as in the nature of an incorporeal right in process of acquisition." It seemed to me during the argument before us that reliance, was sometimes placed on this observation as suggesting the existence) in the eye of the law, of what I may call a partially acquired easement, as though the, period required for the acquisition of an easement were a period of gestation, during which the easement gradually acquires form and life by a process of growth within the womb of prescription, and during which it is capable of suffering an injury.