(GOGINENI) GOPAYYA Vs. (GOGINENI) ANKAYYA

JUDGEMENT

(1.) The petitioners seek to revise the order of the Subordinate Judge, Bezwada, in M. A. No. 13 of 1926, dismissing their appeal against the order of the District Munsif, Nuzvid, in C. M. P. No. 596 of 1926 by which they have been ordered to remove earth from a channel and form bunds in order to allow water to flow freely. The counter-petitioner owns Survey No. 208 and claims that through the opening D 1 in the suit plan, water is both supplied and taken off. The petitioners by filling in portions of the channel further to the east have interfered with these rights. Accordingly the District Munsif after inspecting the ground and finding that if the channel is not cleared as prayed the crop in the northern and eastern portion of the land may suffer for want of water and of drainage, has issued a mandatory injunction. This has been confirmed by the Sub-Judge, but with no special reference to the facts of this case.

(2.) It may be observed at once that the closure of the channel at D 2 and D 3 on the suit plan cannot in any way interfere with the supply to the counter-petitionors field No. 208 along the channel D above the obstruction. Moreover the counter-petitioners partition deed shows that D was not the supply channel necessary to No. 208 but that need not be discussed. An injunction can only be justified on the ground that petitioners are obstructing the drainage; but even then there will be no justification for a mandatory injunction. Petitioners ought simply to have been restrained by injunction from preventing the exercise of counter- petitioners easement to drain water from his dominant heritage, Survey No. 208 on to the servient heritage Survey No. 211 through the vent D 1. If passed in those terms it is very doubtful whether the injunction will entail any alteration of petitioners ground but at any rate such alteration as may be necessary must be left to petitioners discretion. It is found that the land slopes from north to south and from west to east. Obviously there cannot then be any great accumulation of drainage water at the north-east corner D1 and the counter-petitioner- himself claims that through D 1 water froth D flows not out of but into his land. The channel is not completely blocked until D 4 is reached though it is narrowed south of 210 and 214. Water flowing through D 1 might be expected to overflow into No. 211. There is nothing either in the plan or the report to suggest that water is entirely prevented from escaping from D 1.

(3.) Therefore an injunction seems to be hardly necessary but if at all, it should be that petitioners allow the customary flow of drainage water through D 1 and whether they take the water down D 2 or into No. 211 is a matter entirely within their own discretion. As the facts are thus seen to preclude a mandatory injunction it is hardly necessary to discuss whether a mandatory injunction is also precluded by law but the petitioner has raised the point and it may be briefly discussed.