MUTHALAGAPPA CHETTIAR (DECEASED) Vs. NAVANESTHESWARA GURUKKAL

JUDGEMENT

(1.) Though the distinction between "easements of necessity" and "quasi easements"is not very clearly adverted to in the plaint, the facts found by the Courts below clearly warrant the application of the principle of Section 13 of the Easements Act.

(2.) It has next been argued that the suit is barred by limitation under Art. 120 (of the Limitation Act) or even Art. 144 calculating the period of six years or twelve years from 1911 when according to the plaintiff there was some obstruction to the water course. In support of this contention, reference was made to some observations in Zamindar of Kurupam V/s. Zamindar of Merangi (1882) I.L.R. 5 Mad. 253 and Muthu Goundan V/s. Anantha Goundan (1915) 31 I.C. 528. In both these cases the suit was held to be in time whether Art. 120 or Art. 144, applied and it was not therefore necessary for the learned Judges to consider whether the case would be governed by Section 23 of the Limitation Act or not. On the other hand, it was held so long ago as in Rajrup Koer V/s. Abdul Hossein (1880) L.R. 7 I.A. 240 : I.L.R. 6 Cal. 394 (P.C.) in view of the illustration appended to Section 24 of the Limitation Act of 1871, that in respect of interference with a water course, the party injured has a continuing cause of action. The same principle has been followed in more recent cases though in differing circumstances in C.F. Sankara Vadivelu Pillai V/s. Secretary of Stale for India in Council (1904) I.L.R. 28 Mad. 72 : 15 M.L.J. 32 and Krishna Dayal Gir V/s. Bhawani Koer (1917) 43 I.C. 235. Whether the principle of continuing wrong can be applied to obstruction to a right of way or not, there can be no doubt that it does apply to cases of interference with a water course. I may add that in Nazimulla V/s. Wazidulla (1915) 29 I.C. 385 the principle has been applied even to a right of way. The cases in Ashutosh Sadukhan V/s. The Corporation of Calcutta (1916) 49 I.C. 93 and Lal Singh V/s. Hira Singh (1920) 60 I.C. 20 are not really analogous. There was really no scope in those cases for the application of the principle of Section 23 of the Limitation Act. The same observation applies to the case in Kanakasabai V/s. Muttu (1890) I.L.R. 13 Mad. 445.

(3.) It has no doubt been sometimes stated generally that whenever a permanent state of things has been brought about, there is no scope for the application of Section 23 of the Limitation Act. But on the facts of this case it is not clear what is the permanent state of things that has been brought about. The defendant by the version that he put forward denying the existence of the channel precluded himself from leading any evidence showing that he has brought about any permanent state of things interfering with the plaintiff's rights. But even otherwise, I fail to see the applicability of the theory of a permanent state of things being brought about when it is brought about on the defendants own land, so that there is no scope for the applicability of the doctrine of title by adverse possession. In whatever manner the interference is effected, it is an interference with a flow of water which but for such interference would continue to flow from time to time. I have not been referred to any case where the applicability of Section 23 to such a state of things has been negatived. The decision of the Court below is right. The second appeal fails and is dismissed with costs.