GOGINENI GOPAYYA Vs. MANIKONDA SOBHANADRI

JUDGEMENT

(1.) The petitioners seek to revise the order of the Subordinate Judge, Bezwada, in M. A. No. 12 of 1926 dismissing their appeal against the order of the District Munsif of Nuzvid in C. M. P. No. 660 of 1926, by which they have been ordered to remove earth and restore bunds upon their lands so as to allow the counter-petitioner to take water to his land by right of the easement which he claims.

(2.) The counter-petitioner is claiming this easement both by prescription and as of necessity. There is a channel supplying his land from the main irrigation channel and the Munsif finds that he has also taken water from the channel now in dispute and he also finds that the balance of convenience is in the conuter-petitioners favour. The learned Subordinate Judge remarks that the only question which needs consideration in a matter like this, is whether the plaintiff has shown that the balance of convenience is on his side and it is quite inopportune at this stage that the Court should try to determine the nature of the right claimed by the plaintiff, whether it is an easement by prescription or an easement of necessity; it is inadvisable that the Court should address itself to any of the matters which are in issue between the parties to the suit.

(3.) The lower Courts are mistaken in thinking that the balance of convenience is the only consideration. Probably in the majority of cases in this Presidency, where a man fills in a channel, the advantage he gains by such addition to his arable land is not commensurate with the disadvantage he causes to any neighbour who has been taking water from the channel. But that is not by. itself enough to justify the Court in issuing a mandatory injunction. The neighbour who feels himself aggrieved must show a fairly colourable right to the water before the Court can act ; and the Court cannot in terms decline to address itself to any of the issues between the parties to the suit.