KAYAMBU SERVAI Vs. KARUPPIAH SERVAI

JUDGEMENT

(1.) The plaintiff is the appellant before me. He filed a suit for an injunction against defendants 2 to 6 restraining them from taking water from Panikkananthal tank to their lands situated in the village of Kulanthapuri. He also wanted an injunction directing the defendants to restore a part of a channel which they were alleged to have destroyed and also an injunction restraining them from interfering with the plaintiff's taking water to his wet lands in Panikkananthal village through the channel A, A-1 to A-8. He claimed another relief about the defendants having put up a pipe at a point "S" in the tank but both the Courts have found against the plaintiff in connection with that matter and the second appeal does not deal with this point. The learned District Munsiff found all the other points in favour of the plaintiff and decreed the suit. On appeal by defendants 2 to 6 the Subordinate Judge reversed the rinding of the trial Court and dismissed the suit. The plaintiff has preferred this second appeal.

(2.) The findings of fact come to by the appellate Court are these: The lands of the defendants though in the village of Kulanthapuri were permitted to take water from Panikkananthal village and the defendants have been accordingly taking water for over 15 years. Those lands have been converted into nanja lands and pattas have been also issued to them treating them as nanja lands even from 1928 onwards. The allegation that the defendants destroyed a portion of the channel A, A-1 to A-8 is found to be untrue and the further case of the plaintiff during trial, that subsequent to the institution of the suit they destroyed some other portions of the said channel is also found to be untrue. The appellate Court found that only about 3 acres of plaintiff's lands were nanja lands and the rest were only punja lands. It is further found that so far as the plaintiff's lands are concerned, only a part of it was originally mamool nanja and the rest has been converted into nanja only from about 1935. The appellate Judge has also found accepting the I evidence of D.Ws. 2 and 4 that there is enough water in the tank for the cultivation, of all the mamool nanja lands in the ayacut of the village and for the cultivation of defendants lands in question.

(3.) In second appeal these findings are accepted but it is argued that even so the judgment of the appellate Court is not correct. The argument is based on the decision in Ramachandra v. Narayanaswami (1892) 2 M.L.J. 279 : I.L.R. 16 Mad. 333 and Nynappa Servai V/s. Veeran (1908) I.L.R. 32 Mad. 423. Mr. Ramaswami Iyer the learned advocate for the appellant argues that the plaintiff's rights are in the nature of proprietary rights and it is not open to the landholder to allow the use of water from the Panikkananthal tank for wet cultivation of lands in the village of Kulanthapuri. He argues that it is legally unnecessary for him to establish actual damage before he can succeed in obtaining a relief by way of injunction. It is sufficient that this proprietary right had been invaded and that must be taken to give him a cause of action irrespective of any finding as to any actual damage being caused. He argues that it is impossible to say that there may not be prospective damage in the future and it must be presumed that there would be. Actually the decision in Ramachandra V/s. Narayanaswami (1892) 2 M.L.J. 279 : I.L.R. 16 Mad. 333, on which reliance was placed was a case where there was material diminution in the supply of water caused by the alleged obstruction. In the decision in Nynappa Servai V/s. Veeran (1908) I.L.R. 32 Mad. 423, also the right of the ryot is recognised as a proprietary right only to the extent of the customary supply of water from the tank. There also it was found as a fact that the water in the tank was not sufficient to irrigate the plaintiff's lands and the supply for irrigation of other lands must necessarily cause damage to the plaintiffs. It was only on the basis of that finding that the plaintiffs were given a decree in their favour. As pointed out in Basavana Goud V/s. Narayana Reddi (1930) 61 M.L.J. 563 : I.L.R. 54 Mad.793 the plaintiff must prove either that damage has accrued or must necessarily accrue. The plaintiff must establish " probable prospective damage " and that the act is such as is likely to cause damage to him. In the "present case that element is wanting. But it is argued that the plaintiff is also the owner of other wet lands in the ayacut of this village and in that capacity he can complain of the act of the defendants in taking water from the village tank because his rights of irrigation to the other lands in the village, that is, other than the " B " marked series of lands with reference to which the suit was filed, would be affected. But this is not the case referred to by him in the plaint or during the trial. It is not open to him now to take a stand upon his ownership of other lands in the village and indeed even with reference to that, the finding of the lower appellate Court is that there is enough water to supply the needs of all the mamool wet lands in the ayacut in the suit village and that there is sufficient surplus water for irrigation of the defendants lands. In these circumstances, the plaintiff has not established any right to an injunction as claimed by him. The second appeal accordingly fails and is dismissed with costs of the second respondent.