S P SUNDARAM PILLAI Vs. KARUPPAYEE AMMAL

JUDGEMENT

(1.) For reasons which will appear lower down it will be convenient to take up the latest of these Second Appeals Nos., viz., 292 and 293 of 1933. These Second Appeals arise out of two suits filed under Section 144 of Act I of 1908. The plaintiff is the same ryot and the defendant is the same landlord in both cases. In Summary Suit No. 1077 of 1930 (S.A. No. 293 of 1933) he holds under patta No. 47 and in the other suit No. 1078 of 1930 (S.A. No. 292 of 1933) he holds under patta No. 27. The suits are filed on the ground that the defendant levied an extra charge for water supplied to the suit holdings in addition to the dry rate to which the lands were admittedly liable. The lands were formerly dry lands. After the Periyar project came, they had the benefit of the Periyar water and the lands were converted into wet lands and on account of this the defendant charged a higher rate. The question in these Second Appeals is whether this higher rate is leviable. In paragraph 3 of the plaint the following allegation is made by the plaintiff. "The said lands are entirely Periyar-fed and are cultivated only with that water. The land-holder has not contributed either towards their irrigation facilities or towards their improvement and for such user of the Periyar water, the Government levies and collects water rate from the plaintiff." This paragraph in the plaint is replied to in paragraph 5 of the written statement. "The allegation that the lands are entirely Periyar-fed and are cultivated only with that water is false. The defendant has given water facility for raising the second crop and it was only with this defendant's water that the second crop has been raised." What exactly the water facility given by the defendant is has not been described in this paragraph. The plaintiff also claims, besides the refund of the amount wrongfully levied for water charge, Rs. 100 as penalty for the illegal exaction by the defendant. The survey numbers with which we are concerned are (1) 25, 60 and 61 in S.A. No. 292 and 60 and 63 in S.A. No. 293. These (other than S. No. 69) are dry lands converted into wet for which the landholder claims a larger rent even for the first crop which is described as tirvai jasti. In this appeal we are concerned only with S. Nos. 25, 60 and 61, in respect of which both the Courts allowed tirvai jasti. We are not concerned with S. No. 63 as tirvai jasti in respect of it has been disallowed by both the Courts. I may mention also that fasli jasti was claimed in respect of S. No. 69; but both the Courts having disallowed it, we are not concerned with it in this appeal. Though S. No. 60 appears in both, the sub-divisions are different in each case. S. No. 60/2 is concerned in patta No. 27 and S. No. 60/3 is concerned in patta No. 47 it is unnecessary to refer to this fact any more. I mention it to avoid confusion. What exactly the additional facility the defendant has given was disclosed in the evidence. There is a tank called the Alathur tank named after the village. This tank is admittedly the irrigation source for certain lands in the village which were always wet lands and which did not include the suit lands. On the west of this tank the Periyar channel runs from northwest to south-east and at one spot it passes very close by the bund of the tank. Apparently the tank whenever it fills up beyond the F.T.L., the water overflows and this surplus flow gets into a water-way described as marugal by P.W. 2. I avoided the word "channel" because P.W. 2 says "It is not exactly a channel. It is only a marugal. This marugal water goes to Mulloorani kanmoi." This water runs parallel to the Periyar Channel upto some distance and at one place the Periyar water gets into it through sluice No. 18-A, though P.W. 2, seems to have committed some confusion in stating this because he says "this marugal water falls into Periyar at Sluice No. 18-A". It is water from the Periyar that falls into the marugal. D.W. 2 says "S. Nos. 60, 61 and 25 are fed by a channel which comes from the Alathur tank and supplemented by Periyar water fifth branch channel through Sluice No. 18 marked in Ex. 1." Obviously, it is the latter description that is correct as is evident from the judgments of the Courts below. The evidence does not exactly show who the owner of this marugal is i.e., to whom it can be said to belong. Undoubtedly the Mulloorani tank belongs to the defendant-landlord and the water from the marugal ultimately falls in the Mulloorani tank. That tank is the irrigation source for several lands below it. But S. Nos. 25, 60 and 61 do notget water from this tank. They get water from the marugal on its way to the tank. Dealing with these facts the Deputy Collector refers to the plaintiff's witnesses and then to D.Ws. 2 and 3 and says: D.W. 2 (the Revenue Inspector) D.W. 3. (The village Munsif) also say that Alathur tank surplus water mixed with the Periyar channel water and irrigated these S. Nos. 25, 60 and 61. So it is clear some water from the Alathur tank has irrigated these fields in question.

(2.) He then refers to the plaintiff's contention in reply to this viz., that in the mixed water, i.e., Alathur surplus plus Periyar water, the Alathur surplus is negligible and the defendant is not entitled to call the surplus water of the tank as his water. After it overflows beyond the F.T.L. it cannot be described as his water. In dealing with this contention of the plaintiff the Deputy Collector observes: The contention that the water after it surpluses is not the defendant's water is not tenable; this surplus water does not go to any Government tank or to any other stranger's tank but goes only to the defendant's tank and I consider it is still his and any one who uses that water is bound to pay the defendant for its use.

(3.) Accordingly he found that the levy of the first crop charge on these three survey numbers was justified but he found that the charge on some other survey numbers was not justified and gave a decree only for the latter portion and with reference to the illegal levy on that portion he decreed also a penalty of Rs. 5. There was an appeal to the District Judge by the plaintiff in both the suits. The learned District Judge observed: It is not quite clear from the evidence whether this surplus channel receives any supply at. all from the Alathur tank except at times of flood.