KODURI NARAYANA REDDI Vs. LEBUR GOPALAREDDI

JUDGEMENT

(1.) In this second appeal preferred by defendants 4 to 6 and 8 in O.S. No. 56 of 1943 in the Court of the District Munsif of Kavali against the decision of the Subordinate Judge of Nellore in A.S. No. 189 of 1945, the only question that has been canvassed is whether the lower appellate Court was right in differing from the trial Court and Holding that the plaintiff is entitled to cut a vent at the place marked C in the channel mentioned in the plan filed along with the plaint.

(2.) What happened was that in the trial Court the plaintiff was given a decree that he was entitled to irrigate his lands specified in the plaint schedule and marked yellow in the plan from the channel CE and the defendants were restrained by a permanent injunction from interfering with the said right of the plaintiff. In. giving this decree the learned District Munsif towards the end of paragraph 8 of his judgment, observed as follows: I therefore hold following the order, Ex. P-5, that the plaintiff is entitled to irrigate his lands: from the canal demarcated as CE. But he has obviously no right to cut the main canal at point C It is especially so as that canal has to irrigate a very large extent of land. The proper persons to order such a cutting and cross bunding of the canal especially when there is an aqueduct at that point are the Government themselves and interference of such things by the civil Court will jeopardise the rights of various people. As I have already said, the evidence on behalf of the plaintiff is all interested There may be some truth in what the second commissioner said; when there is abundance of water water flows over the small aqueduct into CE. The plaintiff is perfectly at liberty to use such water for irrigating his lands. But it may be said that at ordinary times unless the cutting is ordered at C, the plaintiff will not be in a position to irrigate properly. I can only say that the plaintiff is at liberty to file this judgment before the appropriate authorities. It is certainly open, to him, if this can be done without any effect upon the irrigation system, it may be so ordered. It will also be possible then that the cutting can be done at the times and for the duration as indicated by the authorities.

(3.) The learned District Munsif allowed the plaintiff only half the costs of the suit. The contesting defendants were content to take the decree as it stood, circumscribed as it was with the condition mentioned in the judgment of the learned District Munsif extracted above. But the plaintiff having been aggrieved in getting only half the costs of the suit, preferred an appeal, and the lower appellate Court in holding that the District Munsif was not justified in disallowing the plaintiff half the costs, went into the whole question and came to the conclusion that the plaintiff was entitled to cut a vent in the channel at the place marked C in the plan. It is this conclusion of the learned Subordinate Judge that is attacked by defendants 4 to 6 and 8 in the second appeal, and the question is whether the learned Subordinate Judge was justified in going into the merits and coming to a different conclusion from what the District Munsif came to, in an appeal for costs only without there being any appeal on the other parts of the decree.