AIYASAMI AIYAR Vs. DISTRICT BOARD

JUDGEMENT

(1.) The plaintiffs on behalf of themselves and other land-holders seek for a permanent injunction restraining the District Board of Tanjore from increasing the size of two tunnels or culverts passing under a public road. The road runs from north to south, and for a part of its length on the west side of it, and running parallel with it, there is an irrigation channel called the Pallavan Channel; it is in this part of the road that the two tunnels in question are situated, and water from the Pallavan Channel passes through them under the road and is used for the irrigation of the seed beds of the plaintiffs and other landholders, lying on the east side of the road. These two tunnels having fallen into disrepair the District Board, the authority responsible for the maintenance of the road, decided, in repairing them, to increase their size, the object being to allow a greater volume of water to pass through them and thus to prevent the waters on the west side of the road from rising in the rainy season to such a height as to damage the road surface. The complaint of the plaintiffs is that the increased volume of water discharged by the tunnels is, or is likely to be, too great to be carried off by the channels on the east side of the road, and that consequently their fields will be submerged and their crops injured.

(2.) Both the lower Courts find that they will be injured in the way they allege, and the question is, therefore, whether they are in these circumstances entitled to the injunction for which they pray.

(3.) We endeavoured by calling for a finding of fact to ascertain whether the tunnels were constructed at or after the time of the construction of the road for the purposes of the road, or whether they existed before the construction of the road as irrigation conduits or pipes. The Subordinate Judge has, however, been unable to find any evidence sufficient to establish either position, and is able only to find that for fifty years or so the tunnels and the road have existed together without alteration in the dimensions of the former.