LAWS(PVC)-1925-4-91

VEPURI SUBBAYYA Vs. SECYOF STATE

Decided On April 01, 1925
VEPURI SUBBAYYA Appellant
V/S
SECYOF STATE Respondents

JUDGEMENT

(1.) The plaintiff is the appellant before me. The 1 respondent is the Secretary of State for India. The plaintiff is the owner of certaininam survey fields in the village of Vemulapalli, namely, Nos. 89, 97, 98, 100, 103 and 104. These lands are irrigated by the water of a tank called Mukkuvanigunta which is situated in Survey No. 101. The plaintiff is the owner of the tank and also of Survey No. 102. The tank was filled by the water of a. channel, which takes its rise from the hills near Gopavaram. Gopavaram is the village immediately north of the village of Ganapavorigudem and the-latter village is immediately north of Vemulapallu All the three villagers originally belonged to a zemindar, but some time before the middle of the last century the zemindari ceased to exist and all the villages passed to the Government. The channel takes a definite shape according to the old survey plan of 1864 (Ex. XI.) in the field marked No. 34 and described as a jungle. It then passes through the village of Ganapavarigudem until it reaches a tank called Jangamgunta which was in the field No. 45 of that plan. It escapes through a southern outlet of the said tank and ultimately falls into Mukkuvanigunta belonging to the plaintiff.

(2.) The District Munsif found that the whole course of the channel, as described by me above, was a natural stream and had existed for more than 70 years. The outlet of Jangamgunta, through which the water of the channel continues to flow southwards, was breached. The District Munsif found that the breach had existed for over 60 years from some time prior to the vesting of the properties in the Government.

(3.) The Subordinate Judge on appeal also found that the portion of the channel south of Jangamgunta and north of Mukkuvanigunta had been existing during the last 60 or 70 years. An examination of the whole record shows that it is impossible to say when the channel and two tanks began to exist in the form in which they now exist. All that can be said is that they must have existed in this shape for more than 70 years and have become a permanent topographical feature. After the breach of the southern outlet of Jangamgunta, that tank lost its original shape ; so far as the western side is concerned no water could be stored in it, but on the western side a pond was formed which formed the irrigation source to the lands of Ganapavarigudem. This state of things, namely, the tank being in a state of disrepair, (the breach of the southern outlet not being repaired) must have led to the flow of more water into Mukkuvanigunta than was originally intended; but that it did flow and was utilized by the plaintiff for the irrigation of Survey Nos. 89, 97, 98, 100, 103 and 104 for more than 60 years is found by the Courts below and cannot be now questioned in second appeal. I am not satisfied with the evidence that it was utilized for the irrigation of Survey No. 102 for a similar period as the appellant claimed before me, and this is the finding of the Courts below. The plaintiff has, therefore, acquired an easement by which he is entitled to supply of enough water for the irrigation of his said lands (excluding Survey No. 102).