SECRETARY OF STATE Vs. RSSNARAYANA AYYAR

JUDGEMENT

(1.) These cross-appeals arise out of the same suit and they may be dealt with together. The suit was instituted by the Secretary of State against the Sri Vyasaraya Swami Mutt (defendant 2) which through its lessee, defendant 1, was in possession of the inam village of Vagaikulam in the Tinnevelly District. The lands in this village are irrigated by an artificial channel known as the "North Kodaimelalagiankal" taking off from the Tambaraparni River. After flowing through a number of ayan villages and inam villages, this channel, at its tenth mile, enters the Vagaikulam village and after flowing through that village for three-quarters of a mile it enters the Government village of Mannarkoil and finally empties itself into certain ayan tanks. There have been prior litigations between the parties as to the extent of the rights possessed by the Mutt to take water from this channel. But this litigation is of a somewhat different character. The plaint alleged that on 9 and 10 June 1926, defendant 1 deepened the bed of the channel to a depth of one foot three inches to a distance of about 680 feet between the points marked B and C in the plan, Ex. A. It also alleged that be widened the channel by cutting and removing a number of stones which composed the rooky bed of the channel and served to keep the water course within narrow limits. The plaintiff complained that as the result of these acts of defendant 1, the flow of water into channels taking off from this channel and irrigating ayan lands was greatly retarded and diminished and that a larger volume of water flowed into the branch channel irrigating the defendants inam lands. The plaint accordingly prayed for a preventive injunction restraining the defendants from interfering with the N. K, Channel and for a mandatory injunction directing the defendants to restore the channel bed to the condition in which it was prior to June 1926 when the defendants made the alterations complained of, The right to relief was based on three grounds, namely, (1) injury to the irrigation of ayan lands; (2) ownership of the channel being in the Government; and (3) the paramount minority of the Government to control the channel from its commencement to its end.

(2.) The written statements denied the allegations of fact as well as the propositions of law put forward in the plaint. Six issues were framed in the case, of which it is sufficient to refer to issues 1, 2, 4 and 5. Issue 1 raised the question of the ownership of that portion of the N.K. Channel which lies within the inam limits. Issue 2 related to the plaintiff's claim of paramount right. Issues 4 and 5 related to the allegations of fact in the plaint as to the deepening and the widening of the channel by defendant 1 and the consequent interference with the flow of the water. Issue 6 was merely consequential, namely, whether the plaintiff was entitled to the injunctions claimed.

(3.) Issues 1 to 3 were by agreement of parties not dealt with in the Courts below, because it was expected that they might in substance be decided by this Court in Second Appeal No. 309 of 1928. I do not think it necessary for the purpose of this case to deal with issue 3 and I therefore make no further reference to it. On issues 4 and 5 the trial Court found against the plaintiff and consequently dismissed the suit. But, on appeal, the learned District Judge while affirming the finding of the trial Court on issue 5, came to a different conclusion on issue 4. He held that the interference by defendant 1 with the bed of the channel had not led to any material diminution in the supply of water to the ayan lands and that the interference was not to the extent alleged in the plaint; but he came to the conclusion that the defendants caused the removal of many stones imbedded in the channel of fairly large dimensions and also. got one or two of the pivotal stones, ten feet below the point B in the plan out and removed.