UNDE RAJAH RAJA SRI RAJA VELUGOTI SRI RAJAGOPALA KRISHNA YACHENDRALA VARU BAHADUR, K C I E MAHARAJAH OF VENKATAGIRI Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL

JUDGEMENT

(1.) The plaintiff is the Secretary of State, the 1st defendant the Rajah of Venkatagiri, and the other defendants are ryots of the village of Vasapallipadu in the Guntur District. The suit is brought for the removal of a bund or dam placed by the defendant across what is alleged by the plaintiff to be a natural stream of salt water known as the Nallavagu which has the effect of throwing back the saline waters of the stream on to the lands of the Government village of Allur and sending it into the irrigation tanks of the village to the injury of the wet crops raised with the tank water. The District Judge has given the plaintiff a decree and the 1st defendant appeals. The bund in question was put up first in 1896, and was removed by the orders of the Divisional Officer at the end of 1897. It was again put up in 1904, and after some correspondence this suit was instituted for its removal in 1908. The main defence put forward was that the Nallavagu was not a stream flowing in a defined course at this point. Witnesses were examined and cross-examined at very great length to prove this, and a very lengthy argument based on their evidence was addressed to us by the learned Vakil for the appellant who on the other hand passed very lightly over the documentary evidence for the twelve years preceding the filing of the suit. This is not surprising, because a reference to the correspondence which passed and to the statements which were taken from both sides during that period shows that this contention was raised for the first time in the 1st defendant s written statement, and that till then no one had ever doubted that it was a natural stream.

(2.) The upper reaches of the Nallavagu admittedly form a natural stream, though like other streams in this part of the country it only flows during the North-East monsoon, from October to December, and for a short time after heavy showers at other periods of the year, Some three or four miles higher up than the suit bund the stream bifurcates, one branch taking a north-easterly course and finding its way into the Buckingham Canal which flows parallel with the coast, while the branch now in question admittedly flows in an easterly or south easterly direction down to a point above two miles distant from the place where the bund was erected, and then, according to the defendants, ceases to flow in a defined channel and spreads over the surface of the country, whereas, according to the plaintiff, it pursues its course to the site of the bund and, before the bund was erected, flowed southward, through the wet lands of the defendant s Vasapallipad village and ultimately found its way in-to the Buckingham Canal further South.

(3.) Below the point C in the plan Exhibit I (a), where the defendants say the Nallavagu ceases to flow in a defined channel, the water is admittedly confined on the right bank and does not overflow to the South over the Vasapallipad lands until it reaches the site of the bund. If it spread out at all it must therefore have been to the North, and if there was nothing on the North to contain it, it must obviously have spread over the country until it was absorbed and very little water could have found its way to the bund site. On the other hand, if as appears to have been the case, the natural configuration of the country to the North was such that saline water admittedly flowing down the vagu to the point C was subsequently directed to the bund site whence it flowed down through the defendant s lands, this would appear to be sufficient to satisfy the definition of a natural stream in the explanation to Section 7 of the Easements Act, viz., "a stream flowing by the operation of nature only and in a natural and known course." I confess that it appears to me very largely a case of res ipsa locquitur seeing that admittedly the saline waters brought down by the vagu found their way to the site of bund and then before its erection flowed down into the wet lands of the defendants.