KRISHNASWAMI CHETTIAR Vs. PAPPI NAICKER

JUDGEMENT

(1.) Defendants 2 and 11 to 13 are the appellants in this appeal and there are various questions raised as to the rights of several ayacutdars holding wet lands under a tank-as to how the rights to take the water to the several fields are to be regulated. The plaintiffs filed the suit for a declaration that they had the right of taking the water of the tank which is the source of irrigation to certain wet fields which bear S. Nos. 2757, 2759, 2760 and 1147. A plan was prepared by a Commissioner appointed by the Court which was marked as Ex. C and this plan will be referred to in my judgment. A reference to Ex. C shows that the fields owned by the plaintiffs are all to the east of a channel shown as the surplus channel. The appellants are the owners of Secs.No. 2765 which is situate to the west of this surplus channel. There are two tanks known as Karisalkulam tank or Pudu tank and Sengulam tank or Lakshminarayanapuram yeri. As regards the lands which are situate to the west of the surplus channel, the slope of the land is from south to north and from west to east. There is a channel shown with the letters L-M-P-O-N, N being the point of the junction of the channel with the surplus channel already mentioned. Plaintiffs claim is that all the water which came on to the southern portion of 2765 was after irrigating that portion finding its way into the surplus channel and that sometime before 1917 the channel L-M-P-O which was till then existing was extended to the point N so that O-N also came into existence and that the water on the southern portion of 2765 used to find its way into O-N and discharge itself into the surplus channel. The plaintiffs claim that with the water flowing into the surplus channel, they were irrigating the fields which are mentioned already. The channel which took off the surplus water of the tank is the irrigation channel for the plaintiffs fields. The right of the plaintiffs to take such water as is flowing into the surplus channel is not denied. The point of dispute between the parties is whether the plaintiffs are entitled to insist upon the defendants keeping O-N in the state in which it was for sometime before the disputes arose or whether the appellants through whose lands L-M-P-O-N passes are entitled to make certain alterations which they did in or about the year 1987 with the main object of leading the water which came on to the southern portion to the northern portion as well. The appellants say that the whole of the field 2765 is also registered as wet ayacut under the very same tanks Karisalkulam and Sengulam and that they are entitled to irrigate the whole of the field before letting off the water into the surplus channel. It is primarily the duty of the Government which levies wet rate from both the plaintiffs and from the defendants lands to regulate the water supply so as to ensure an adequate supply to both the lands. It is unfortunate that in this case in spite of an attempt made by plaintiff 1 and others the revenue authorities remained indifferent and that attitude has led to this litigation.

(2.) Water flowing through the tank sluices is ordinarily intended to irrigate the lands classified as wet under a tank. There is no separate supply channel taking off from the sluices leading water to the plaintiffs lands. The surplus channel is mainly designed to take off the surplus from the two tanks. Normally, it is only when there are heavy rains that the tanks will surplus and surplus water as such will get into this channel only then. It is obvious that if that water is all that the plaintiffs are entitled to take, their lands may not get an adequate supply of water. Plaintiffs say that the mamool or the practice obtaining in this village is what is known as field to field irrigation. Under this system each wet field is not provided with a separate irrigation channel. The tank water is led through a big channel taking off from a sluice and there are smaller channels leading off from the main channel taking the water to the various fields. Even these field channels as they are called do not reach every wet field and in several cases after irrigating one field, the tank water flows over the ridge of that field or by percolation or by a cut or vent in the ridge of the upper field into the lower field. Even in cases where there are no supply channels leading to every field, it is not invariably a out or vent that is made. Particularly in cases where the wet fields are manured and that with artificial manures, it is obvious that if a vent or cut is made, all the essence will get on to the lower field and very serious injury will be caused to the owner of the upper field. It is not therefore possible to lay down the rights of the owners of the upper fields and lower fields which will be of general application and Courts have to guard themselves against laying down any principle which might in other cases work very great hardship. It looks to me after having heard elaborate arguments from the learned advocates on either side, that the solution of such a question must depend upon the practice obtaining in each village or under each tank. Even in cases of two tanks in the same village the practice may differ according to the exigencies of the situation.

(3.) The primary duty of regulating water supply to all the fields registered under the ayacut of a particular tank is on the proprietor or zamindar or the Government. In the case of ryotwari areas, the Government has got a primary duty of regulating the water supply and of indicating the source of supply. They may substitute one source for another and a ryot holding ryotwari lands under the Government has no right of complaint if instead of one source he is asked to take water from another source provided an adequate supply of water for his lands is ensured by the new source of supply. No doubt the Government will not be entitled to interfere with the old source of supply until a new and equally efficient source of supply is provided. Various interesting questions have been argued at the Bar. Whether in a case where the tank water after coming through an irrigation channel spreads itself over a field which is irrigated by it and then flows over the field ridge on to another field or into an intermediate channel which in turn irrigates another field, the right of the lower owner in such a case is really a right to insist upon water from an artificial water source being always ensured to him, whether it is surface water in the strict sense of the term that the owner of the lower field is claiming. If it is the one or the other, difficult questions will arise because except in a very extraordinary case, the lower owner may not be entitled to insist upon the surplus being allowed to flow on to his field, though by continuous user for over the statutory period, the upper owner may acquire the right of discharging his surplus water on to the lower field. The right of the owner of the upper field to drain off his water into the lower field has nothing to do with the claim of the owner of the lower field to insist upon the surplus always being allowed to flow into his field. Cases which deal with the former may not be of use in dealing with the latter question.