DEONANDAN PANDEY Vs. RAMPIRITA RAI

JUDGEMENT

(1.) These two second appeals arise out of two suits instituted by the same plaintiff against two different defendants for realization of what is called channel rent. Under the Bengal Irrigation Act the canal water is brought in Government channels up to a certain point and then it is distributed among the cultivators through private channels owned by private individuals who are described in the Act as the owners of the channels. Under Section 59 of the Act the owner of a village channel is bound to construct and maintain the village channels for irrigation and drainage and to keep them and other necessary constructions in that connexion in an efficient condition and to allow their use on such terms as may be declared equitable by the Canal Officer. He is entitled to get supply of water at the rate fixed and is also entitled to receive rent for the use of the village channel by other persons as the Canal Officer may award. Section 47 of the Act enjoins upon the Canal Officer to keep a register of all village channels whether existing or constructed under the Act and to register the names of the owners of every private channel.

(2.) The plaintiff's case is that he is the registered owner of channels Nos. 189 and 550 of village Raimalpur alias Sikrahata and that as such he sued the defendants of the two suits who used them for the recovery of the channel rent according to the rate fixed by the Canal Officer. The defence material for the purposes of these appeals was that the plaintiff was not the only owner of the channels in question and that some other persons, namely Ramdip Pandey and others, were also co- owners of the two channels and that the plaintiff's share of rent was only one-third and the remaining two thirds was payable to the aforesaid persons. There was a plea of payment also which was disallowed by the trial Court and we are not concerned with it in these appeals.

(3.) In order to meet the main defence of the defendants the plaintiff urged that as he-alone was registered as the owner of the channels in question in the Canal Office, he-alone was entitled to realize the rent and. that the defendants were precluded from asserting that a part of the channel rent, was due to some one else and that if others had any interest in the channels they could realize their dues from the plaintiff. The plaintiff also denied that Ramdip Pandey and others had any interest in his channels. The learned Munsif decreed the suit. He. examined the scheme of the Bengal Irrigation Act and came to the conclusion that the plaintiff alone was entitled to realize the channel rent. He also found that the defendants failed to prove that any other-person was the cosharer of the plaintiff in these channels. On appeal by the defendants,, the learned Subordinate Judge has modified the decree of the trial Court. He has held that Ramdip Panday and others were owners of the channels to the extent of two third and that the plaintiff was not entitled to realise the entire rent. He therefore decreed the plaintiff's suit to the extent of one-third of the claim only. The plaintiff has preferred these two second appeals.