RAGHAVALU NAYUDU Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This appeal involves a question of water rights. The plaintiffs are certain inhabitants of Sumangalai village, Cheyyar taluq, and they brought this suit against the Secretary of State in Council for a declaration that they and the other ryots of Sumangalai and Kunnathur villages are entitled to the customary right of erecting a turf bund across the masonry work of the Sumangalai and Kunnathur Hissa tank every year and that the defendant, i.e., the Secretary of State be restrained from interfering with that right.

(2.) The plaintiffs allege in their plaint that by the water-mamoolnama of 1815 they had by that date established the right of damming the water in the Hissa tank. According to the plaint they used to dam up the interspaces between the dam stones of the kalingula which was then out of repair. As I read paragraph 4 of the plaint, the device of damming up the interspaces was to prevent practically the entire water of the tank from running waste. In 1875 the Government replaced the old kalingula by masonary work which is said to have reduced the height of the water by about 2 1/2 feet. As the supply of water to the tank became lessened by such an arrangement the ryots constructed turf bunds over the masonry work to the height of about 2 1/2 feet thus preserving the old order of things and ensuring a full supply to their lands according to mamool.

(3.) They allege that for over 40 years they were constructing these turf bunds on the new kalingula in order to get six months supply from the tank and they claim that the villages of Sumangalai and Kunnathur have acquired a prescriptive and customary right over the kalingula of the tank in order to get their full supply of water. The cause of action arose on the 15 November 1915, The Secretary of State's written statement puts the plaintiffs to proof of their allegations and states that if the plaintiffs can establish the alleged custom of placing temporary turf bunds over the weir of the plaint tank, the Secretary of State will withdraw the order in question. This also points out that the ryots of Perungattur, foreshore owners of the plaint tank are necessary parties and should have been impleaded to enable a final adjudication to be come to on all matters in dispute. Defendants 2 to 11 were then joined. They are certain ryotwari owners having lands in the foreshore of the tank. The plaint remained unamended.