GOVIND BAPU Vs. WARLU

JUDGEMENT

(1.) 1. This second appeal raises the question whether the defendant-respondent had a right to take water from the plaintiff's tank No. 145 for house building purposes. The plaintiff-appellant is the malguzar of the village and as such the owner of the said tank. The question is whether the defendant as a member of the village community is entitled to use the tank water for house building purposes. The first Court held that defendant had no such right and therefore granted an injunction and decreed damages as well against him. The lower appellate Court held in favour of the defendant and hence this second appeal by plaintiff.

(2.) THE learned Additional District Judge has discussed the evidence and held that the defendant's witnesses prove that the villagers take water from the tank for cooking and drinking purposes. So also for irrigation of lands and for watering cattle. It is also clearly found that the former malguzar of the village did not object to the free use of the tank water for building purposes and that it is only the present plaintiff-appellant who is trying to introduce a novation that before such free user, the villagers ought to obtain his permission. I think the lower appellate Court was entitled to draw the inferences of fact it did, that the proved open and free user was so far acquiesced in by the owner of the tank as to give rise to the legal inference that the right to use the tank water for building purpose exists for the common benefit of the inhabitants of the village and that its exercise is not dependent on the granting of any permission by the malguzar of the village. That such rights are of the nature of customary rights is pointed out by me in Shridhar v. Rajabhau A.I.R. 1928 Nag. 39 and Rushi Bhiku v Rushi Sheoram A.I.R. 1928 Nag. 87.