ANNASWAMI NAICKEN Vs. CMANICKA MUDALIAR

JUDGEMENT

(1.) This second appeal arises out of a representative suit brought by the plaintiffs for themselves and on behalf of the villagers of Devanandal against the defendants as representing themselves and all other villagers of Adayur. The subject matter in dispute relates to the right to the water from the natural stream which flows through the village of Devanandal which is marked A to B in the plaintiff's plan and A to H in the Commissioner's plan. The plaintiffs claim the right to divert the water by means of a dam at the point D in the plaintiffs plan through a channel DE to the tank F known as the Devanandal Eri for the purpose of irrigating the lands east of the said tank which is registered as wet under the ayacut of the said tank. The extent of acreage which was thus registered on the date of suit was 94 acres 73 cents. The necessity for the suit was that the defendants obstructed the plaintiffs from repairing the dam and also dug a channel nearby which prevented the water being taken to the Eri thus resulting in loss and damage to their lands. It is the plaintiffs case that the water in this channel originally emptied itself in a thangal at the point C in the plan and thereafter the water was utilized for the irrigation of the lands adjecent thereto, but in or about 1893 and thereafter the water was diverted by means of a dam at the point D and carried to the Eri and during the course of 30 years from the said date there has been an increase of cultivation from 11 acres 65 cents to 94 acres, a fact which was recognized by the Government and in respect whereof the wet assessment has been levied. It is only after the irrigation of the plaintiffs lands both previous to the diversion and thereafter that the surplus water flowed and fell into a cross channel JK wherefrom water was taken to the Adayur Eri and the defendants have no right to the said water except to the said surplus. The plaintiffs alleged that they had a right to the said water and the defendants unlawfully interfered with the said rights. In addition to their alleging in the plaint that they have been according to mamul diverting the water and irrigating their wet lands forming its ayacut, they also set up a prescriptive and easement right thereto.

(2.) The District Munsif, who tried the suit, held that the water originally before 1891 never went beyond the Thangal, that from 1893 there has been a diversion and the defendants had no right to obstruct the plaintiffs enjoyment of the said water. He therefore gave a decree in favour of the plaintiffs restraining the defendants from interfering with the plaintiffs enjoyment of the said right. The learned Subordinate Judge, who heard the appeal from the said decision, thought that there was no definite finding as regards the date of the erection of the dam and as to whether the surplus water flowed to Adayur village and whether the diversion by the plaintiffs interfered with the accustomed flow and remanded the case for a finding on those points. The learned District Munsif, who heard the case on remand, gave a finding to the effect that the dam was put up somewhere between 1893 and 1896, that the surplus water flowed in a different channel to the Adayur village and that by reason of the diversion by the plaintiffs no damage had been caused to the defendants. The learned Subordinate Judge, who happened to be not the same Judge who originally remanded the ease, upset all the findings hitherto arrived at by both the District Munsifs and came to an independent conclusion in regard to the rights of the parties. He was of the opinion that the water in the stream never emptied itself at the thangal prior to 1893, that there was a direct flow as far as Adayur village, that the dam was not constructed in 1893 or 1894 and that the facts necessary for the acquisition of the right of easement or prescriptive enjoyment have not been established. He therefore dismissed the plaintiffs suit. In second appeal, Reilly, J. was not prepard to interfere with the findings of fact arrived at by the learned Subordinate Judge but ha made the following remarks: If, as is represented for the plaintiffs, their right to irrigate as wet land an increased area which it would be impossible to irrigate without diverting water to their tank by the dam in question has recently been recognized by the Government, the proper course for them to follow in order to protect their interests appears to be to apply to the Government with a prayer that the Government will maintain or allow them to maintain the dam.

(3.) There was a Letters Patent appeal against the decision of Reilly, J. which was heard by a Bench consisting of Waller and Pandalai, JJ. Pandalai, J who delivered the judgment, was of the opinion that to leave the litigants to the mercy of the Government authorities was an unsatisfactory position for the Courts after 12 years of litigation and proceeded to deal with the matter before them on the state of the record then available before them. He pointed out that the learned Subordinate Judge who heard the case after remand, entirely missed the real points in issue and went behind even the admissions of parties. He further pointed out that there was no dispute about the existence of the dam and the only, question was whether the dam was built in 1893 or 1909. He was further of the opinion that the fact that the plaintiffs failed to prove an easement of the right does not entail the dismissal of the suit if in fact there has been a dam and a diversion of water with the knowledge and approval of the Government in view of the fact that as a result of the water of the stream being used for irrigation by diversion to the tank some 94 acres of wet land paying wet ryotwari assessment to Government has come into cultivation between 1890 and 1920 and the Munsif finds that this does no harm to the defendants. The learned, Judge was of the opinion that the necessary points which would lead to a satisfactory decision of the case have not been considered and he therefore thought that the case must be sent back for a finding on the following points: Whether the registered or recognized source of irrigation for the plaintiffs ryotwari wet lands is the tank or the stream or both, and whether with the knowledge and approval of Government the water of the stream in question has been diverted by a dam and channel to the tank for the purpose of irrigating these lands: If and to the extent the above question is answered in the affirmative, whether the defendants have established any right to interfere with the plaintiffs enjoyment.