RAMESWARAM DEVASTHANAM Vs. SECRETARY OF STATE

JUDGEMENT

(1.) I have had the opportunity of reading my learned brother's judgment with which I substantially agree. I will only supplement it by some additional remarks of my own.

(2.) The suit was brought by the plaintiff challenging the order of Mr. Lionel Davidson, dated 21 April 1910 Ex. D. There is no doubt that the plaintiff's village Sethukuvoithan is a riparian village as it abuts the Thambaraparni river. This was not denied before us and is conceded by the Dist. Judge. Vide para. 2 of his judgment. The plaintiff's allegation was that he originally enjoyed his riparian rights by drawing off water through a sluice at the spot A. The Dist. Judge discusses the existence of sluice A at p. 6 of his judgment. At p. 7 he refers it as the plaintiff's alleged channel from A, and in the middle of p. 6 he states: The next question for consideration is whether the plaintiff has made out his claim to have filled his own tank Sethukuvoithan tank from the river through the sluice A.

(3.) It is not clear to me why the Dist. Judge has discussed the existence of sluiceA and the plaintiff's right to take water through it. In para. 5 of the plaint it was alleged that the lands of Sethukuvoithan were originally irrigated by means of a sluice on the bank of the river marked A in the sketch plan produced herewith, a cross dam across the river being put up whenever necessary etc. This allegation in para. 5 of the plaint was not denied in the written statement of defendant 1. All that we have got in para. 13 of the written statement in which defendant 1 does not admit any of the allegations in the plaint not expressly admitted herein and the written statement of defendants 2 to 10 says that the allegation in the plaint that at one time Sethukuvoithan received its supply from the river at a point higher than the A sluice is not true. This statement, while denying that the point A was higher than the point where Athur village had its sluice, alleged that the higher position was lost by the construction of the Athur sluice at C. This, no doubt, is correct. The original Athur sluice B was lower than A. But the new sluice C was higher than A. But all this, far from denying the existence of sluice A, seems to amount to an admission of its existence. We must take it, therefore, that the plaintiff as a riparian owner was drawing water through the sluice at A. It may be that his tank was in a ruined condition between 1833 to 1838 as the Dist. Judge hotes in para. 12 of his judgment. But even if the tank was in a ruined condition the channel was not. Between 1838 and 1851 both the channel and tank were mentioned. In 1865 the tank was mentioned as rain-fed in Ex. H. In 1868 Ex. I mentions an old tank. I do not agree with the Dist. Judge's construction of the word "old" as meaning ruined. But assuming that the village of Sethukuvoithan was not drawing water from the river in 1865 and 1868 and all the wet ayacut lands of 228 acres single crop and 170 acres double crop got their supply of water by rain it does not follow that the village has lost its riparian rights. It must be remembered that riparian right is a natural right and is not lost by non-user. Not until some other person acquires a right of easement to substantially diminish the water available to the riparian owner can the riparian right be affected or lost. Now, though the new sluice for Athur village was opened at the point C, and it is immaterial when this new sluice was opened at the point, there is absolutely no evidence in this case to show that the water drawn off by Athur village from the point C through the channel C G was of such a quantity as to substantially diminish the flow of water down the river and as to injuriously affect the riparian right of the plaintiff's village. In the absence of such evidence, though it is true as mentioned in para. 3 of the written statement of defendants 2 to 10, that Sethukuvoithan practically surrendered its higher position, if any, by the construction of the sluice C, it cannot be said that the village of Athur has acquired an easement so as to affect the riparian right of the plaintiff's village. This state of things continued up to 1872. This covers the first two stages of my learned brother's judgment.