IDARA PITCHIAH Vs. UNDE RAJAHA RAJE SIR RAJAH VELUGOTI SREE GOVINDA KRISTNA YACHENDRA VARU BAHADUR, ZAMINDAR OF VENKATAGIRI

JUDGEMENT

(1.) This revision petition is against the decree passed by the District Munsif of Kanigiri in S.C.S. No. 504 of 1926. This Small Cause suit and a number of others were filed by the Raja of Venkatagiri against several inamdars to recover compensation for the alleged unauthorised use by the defendants of the water of the plaintiff's tank for the second crop on the defendants inams. Such compensation was claimed in the shape of water rate or price for the use of water said to be unauthorisedly used.

(2.) The defendants are the inamdars. The plaintiff is the Zemindar. There is no privity of contract between the plaintiff and the defendants. It is admitted that the tank water which was said to be used by the defendants belongs to the plaintiff. If the defendants used the water of the tank without having a right to do so they would be committing trespass and would be legally liable to pay damages to the plaintiff. But the defendants say that they are entitled to use the water of the tank for their lands. The question therefore to be decided in the case is whether the defendants have any right to use the water of the plaintiff's tank for their lands.

(3.) Now the plaint admits that the defendants are entitled to use the water of the tank for the first crop but not for the second crop. The right so admitted by the plaintiff and claimed by the defendants, obviously is a right of easement. The only question is what is the extent of that right? Is it limited to the first crop or does it extend to the use of water for all the crops that can be raised by the cultivation of the inams so long as there is, water in the tank? The District Munsif has found that there is no evidence on either side as to whether second crops were raised at the time of the grant. If the matter rests there, it would perhaps be a nice question of burden hi proof on the pleadings. The District Munsif has considered other circumstances in the case. He first of all referred to the liability to pay water cess in Government villages. In this connection he referred to the Standing Order No. 64 of the Standing Orders of the Board of Revenue. The liability of the inamdars to pay water-rate to Government is governed by statute, namely, the Irrigation Cess Act (VII of 1865), and the non-liability to pay depends upon whether there is, engagement to pay at the time of the grant within the meaning of Act VII of 1865. In deciding the case between the Zemindar and inamdars, 1 do not think we have anything to do with the Irrigation Cess Act or analogies based on it.