RAJAH TADAKAMALLA SEETHARAMACHANDRA RAO BAHADUR, ZAMINDAR OF BETHAVOLE Vs. SREE RAJAH KOTAGIRI SATYANARAYANA RAO BAHADUR

JUDGEMENT

(1.) The facts necessary for the disposal of this appeal lie in a narrow compass. The question in dispute is between two neighbouring proprietors in relation to a natural water-course known as Durgadevi Cheruvu which flows between the two estates of North Vinagadapa and the South Vinagadapa. The plaintiff is the owner of the estate of South Vinagadapa, and defendants 1 and 2 are the owners of North Vinagadapa. Both these estates formed part of one estate which belonged to two brothers who partitioned it in 1844 by a deed of partition dated 29 August, 1844 (Ex. N). Under the said partition it was stipulated that the mountains, water-courses and certain other properties should be kept joint and none of them should cause obstruction to the supply channels and water channels flowing as per mamool till that date to the tanks from one part of the estate to another.

(2.) The Durgadevi vagu rises in a forest in the North-east of both the estates and flows in a westerly direction and empties itself into the Durgadevi tank within the limits of Vinagadapa South. It is the case of the plaintiff that no portion of the Durgadevi vagu flows through the estate of North Vinagadapa. But it is the case of the defendants that a portion of the vagu flows through a donka which is common to Troth parties and that the said donka forms part of the boundary of both the estates. That the donka belongs in common to the proprietors of both the estates cannot be disputed. This was not controverted by the plaintiff or hi9 witnesses. The first issue was raised on the basis of the joint ownership of the donka. It is also the defendants case that the course of the vagu is in the form of a big curve marked as B, C, A, in the plan Ex. C when it traverses the donka and not in a straight course. It is the case of the plaintiff that the course of the vagu has always been straight falling within the limits of the plaintiff's estate and that no portion of it goes through the common donka. The necessity for the action has according to the plaintiff been occasioned by the demolition of a bund marked A, B in Ex. C which is at the southern extremity of the donka by the defendants in July, 1929, after it was repaired by the plaintiff. The plaintiff alleges that in 1925, there was a cyclone which caused an erosion in the Durgadevi vagu and diverted the water in a circular course in the vagu preventing the water reaching the Durgadevi tank and a bund was built in order to prevent such a diversion and the said bund existed from 1925 to July, 1929, when the defendants demolished it. Certain criminal proceedings were started in consequence and the parties were ultimately referred to a regular suit. The defendants denied that there was any such bund erected in 1925 and alleged that the bund was newly erected in 1929 because the defendants constructed a channel called the Gopavaram vagu to lead water from Gopavaram tank which is in the extreme east of their estate to the Durgadevi vagu to increase the water- supply of Durgadevi tank, that by reason of the bund having been erected water which was naturally flowing from the donka into the tank known as Rallacheruvu was interfered with and they suffered damages thereby.

(3.) The main question in controversy between the parties is whether Durgadevi vagu was flowing in a straight course or in a bent course through the common donka. The suit is in substance for a declaration that the plaintiff is entitled to put up a bund to the Durgadevi vagu at the portion marked A B, and for an injunction restraining the defendants from interfering with the plaintiff when he raises any such bund or when repairs are effected for the same. In fact all the issues relate solely to this question. A larger question as to the water of Durgadevi vagu flowing into the Rallacheruvu vagu was also raised in the pleadings. But no issues were framed in regard to that matter though some evidence was let in on this question also. The main question for decision is only as to the right of the plaintiff to put up a bund in the Durgadevi vagu as alleged by; him. This is again dependent upon the question whether the vagu runs in a straight course or in a bent course. The plaintiff can only succeed if it runs only in straight course. If the finding is that it goes in a bent course the plaintiff's suit fails. The learned Subordinate Judge has found that the Durgadevi vagu was flowing in a bent course and not in a straight course at the disputed locality and that the vagu does not lie exclusively in the estate of the plaintiff. It is this finding which Mr. Raghava Rao attacks on behalf of the plaintiff. The evidence relating thereto has been elaborately discussed by the learned Subordinate Judge and in view of the fact that we are agreeing with his conclusion we think it unnecessary to deal with the evidence at length. We propose to refer only to a few salient features which render the plaintiff's case improbable. [Their Lordships after discussing the evidence proceeded thus:]