V RAMAN NAIR Vs. PARAMESWARAN NAMBUDIRI

JUDGEMENT

(1.) This second appeal arises out of a suit brought to recover from defendant 1 what is described in the plaint as neervaratn (loosely translated as water-cess), for three years. There is some obscurity as to the nature and basis of the claim and certain previous litigations have only added to the obscurity; but as they do not make the matter res judicata it is unnecessary to refer in detail to these litigations. The substance of the plaintiff's claim is that he is at present maintaining an artificial system of irrigation channels constructed more than fifty years ago by one Pichu Iyer at his own cost, as a result whereof a large extent of land in the possession of various people including the adiyamkulath tarwad received the benefit of supply of water drawn from a river in the Cochin State. Defendant 1 is in possession of about 831/4 paras (seed area) of lands by purchase from the Kadiyamkulath tarwad. The plaintiff says, that the arrangement under which Pichu Iyer constructed this system of irrigation channels was that the persons through whose lands the channels were taken were allowed to take water from these channels for the purpose of irrigating their lands on condition of paying neervaram which he fixes at the rate of 11/2 paras of paddy per para seed area. The liability to maintain this irrigation system as well as the right to collect neervaram alleged to be payable under this arrangement came to the plaintiff from Piohu Iyer as a result of Ex. A dated 1878. Defendant 1 who is the contesting defendant denied that there was any such arrangement or that he was under any liability to make any such payment and he claimed that Pichu Iyer must have agreed to allow free supply of water for the irrigation of the adjoining lands in return for his having been allowed to take the channel through the lands of the Kadiyamkulath tarwad. This is really the main question in the case.

(2.) It is well established that in the case of artificial streams there are no riparian rights as such and whatever rights may be claimed by persons through whose lands the channel passes must rest on some arrangement either proved or presumed: see Ramessur Persad Narain Singh V/s. Koonj Behari (1879) 4 Cal. 633 and Yesu Sakharam V/s. Ladu Nana 1927 Bom. 251. The question therefore is what are the probable conditions under which Pichu Iyer is likely to have brought into existence this system of irrigation channels. I agree with the learned Subordinate Judge that the terms of Ex. A, though not binding as a contract upon the present defendant 1 or his predecessors-in title, afford the best evidence as to the arrangement likely to have been made at the time of the digging of the channel and the other evidence which is referred to by the learned Subordinate Judge in para. 11 of his judgment certainly goes to confirm what the provisions of Ex. A suggest in this connexion. It is clear from Ex. A and the other evidence that defendant l's contention that the persons through whose land the channel was taken were to be allowed a free supply of water from this channel for the irrigation of their lands is hardly likely to be true. The probabilities are, as the learned Subordinate Judge finds, that they must; have agreed to pay something in return for the privilege and the most likely measure of such payment will be to fix it with reference to the area for which they take water, it being left to their option to take the water or not. I see no reason to differ from the learned Subordinate Judge on this point. No doubt one or two sentences in para. 12 of his judgment are open to exception ; for instance, he says that it is for defendant 1 to prove that there was an understanding between the Kadiyamkulath people and Piohu Iyer that the former were to have free use of the water and then adds : "The usual presumption is that they will have to pay." I am not aware of any basis for such a presumption. Again in para. 15, he says: Whether there was a contract or not, the assignees of Pichu Iyer are entitled to collect neervaram for use and occupation of their water.

(3.) This is somewhat unintelligible. But having looked into the whole matter and the evidence referred to by the learned Judge, I see no reason to think that these remark of his have vitiated his judgment. His conclusion is really based upon the evidence and. probabilities of the case and hence I have no hesitation in accepting it.