Doraiswami Udayar vs Venkatachala Reddiar

Ramaswami, J.—These are two applications for stay arising from the decrees and judgment of the learned Subordinate judge of

Tiruchirapalli in A-S. Nos. 31 and 33 of 1956, preferred against the decrees and judgments (sic) Ariyalur in O.S. Nos. 64 of 1954 and 59 of

1955. The facts of this controversy can be easily followed if we take on hand the combined sketches (marked Parts I and II) an nosed to this

judgment for reference.

The plaintiff in both the suits Venkatachala Reddiar is the owner of wet fields S. F. 126/7 (59 cents) and S.F. 126/8 (27 cents) in Eraiyur in

Porambalur Taluk. The only other work field in the locality in S.F. 126/20 (15 cents in extent) belonging to the defendant Duraiswami Udayar.

These three wet lands have the Mangalam Thangal Eri surplus channel as their recognised source of irrigation. Venkatachala Reddiar filed O.S.

No. 64 of 1954 for an injunction restraining the defendant therein from taking water through the cement pipe fixed at P in the commissioner''s plan

Ex. A-5 in O.S. No. 59 of 1955, to his lands and for recovery of Rs. 300 for damages caused to his land. Venkatachala Reddiar filed later

another suit O.S. No. 59 of 1955 against the State of Madras and the defendant Duraiswami Udayar for a declaration that the latter is entitled to

lake water to his land S. No. 126/20 only through the channel K1 to K8 in Ex. A-5 aforesaid and for a mandatory injunction directing the State of

Madras and the other defendant to remove the cement pipe put up at the point P.

The learned Subordinate judge was well justified in pointing out that the trial Court adopted a very curious course leading to a lot of

inconvenience. It exhibited documents separately in the two suits, treated the evidence recorded in O.S. No. 64 of 1954 as part of the evidence

for O.S. No. 59 of 1955 and in addition thereto permitted the parties to adduce further oral evidence in O.S. No. 59 of 1955. It also wrote two

separate judgments. In appeal, to avoid these inconveniences and confusions, the parties argued the two appeals together and at their request the

learned Subordinate Judge consolidated the two appeals and delivered a common judgment. It is to be (sic) such confusion for the sake of getting

two disposals, a small statistical glory out of all proportion to the inconvenience caused to the parties and the appellate judges.

The case for Venkatachala Reddiar is as follows:-Normally the surplus water flowing in the said surplus channel is hardly sufficient for the

irrigation of the said three fields. Duraiswami Udayar purchased S. Nos. 126/12, 126/14, 126/15, 126/16 and 126/19, which are dry lands not

entitled to irrigation from the surplus channel, recently and in manoeuvring to get them converted into wet lands had put up a cement pipe at the

point T in Part 1 sketch and which is point A-I in part II sketch annexed to this judgment. Duraiswami Udayar put loose earth over the cement

pipe and is taking water through the cement pipe to his dry fields. No. 126/16 which is 3 feet lower in level than the adjoining surplus channel on its

western side. Therefore, the entire water will flow into the said land as a result of which, the plaintiff will loss his accustomed and adequate supply

of water for his registered wet fields 126/7 and 126/8. Venkatachala Reddiar complained about it to the Revenue authorities and it is the argument

of the learned Advocate for the respondent Venkatachala Reddiar that this Duraiswami Udayar is an influential Congressman in the locality and is

able to get things done pretty much as he desires. In fact the District Collector, Tiruchirapalli, passed the order D. Dis. 32668/54 dated 3rd

November 1954 ex post facto approving the laying of the cement pipe in question by this Udayar for irrigating S. No. 126/20. Therefore, the

village officers taking sides with this Udayar have been allowing him to take water directly from the Vari to cultivate his dry land, when the lands of

the plaintiff are to be irrigated by the irrigation channel branching off at the northern lower point of the surplus channel. Therefore, Venkatachala

Reddiar filed the two suits for the reliefs mentioned above. The position taken by the Udayar and (sic) the cement pipe and taking the water at the

point ""T"" to his geld the Udayar was not causing any diminution of water for the irrigation of the Reddiar''s wet lands.

The trial Court accepted the contention of the defendants and dismissed the suits. In appeal the learned Subordinate Judge has carefully gone

into the matter and came to the conclusion that the plaintiff had made out his case and gave a decree as follows:

In the result, the appeal (A.S. No. 33 1956) filed by plaintiff against the dismissal of O.S. No. 59 of 1955 is allowed and there will be a decree

declaring that the order passed by the State of Madras represented by the District Collector, Tiruchirapalli (defendant 1 therein) dated 3rd

November 1954 permitting defendant (defendant 2 therein) to fix the cement pipe and take water through the cement pipe and the red-dotted

course in Ex. A-5 is illegal, unjust and unfair and that defendant 2 is not entitled to take water through the said course. Of course, the declaration

sought for by plaintiff that defendant 2 therein cannot take water to his land except through K-1 to K-8 is not granted and instead the declaration

already mentioned is granted. There will be a mandatory injunction directing defendant 2 to remove the cement pipe fixed by him in the bund and

restore the bund of the surplus channel at the point to its original condition. Plaintiff will be entitled to the costs of appeal and suit. A.S. No. 31 of

1956 filed by defendant 2 is dismissed with costs and the memorandum of cross-objections filed by plaintiff there in is allowed with costs and there

will be a decree as prayed for in that suit, with costs.

The short point for determination in these petitions is whether the stay asked for can be granted.

The right of an owner of land registered - under an irrigation source by the Government to take water through the Mamool channel to his fields

is really well-settled. (For a discussion of these principles see L.M. Doss Law of Riparian Rights Alluvion and Fishery (T.L.L) (1889) Lecture X

P. 256 and foll; Katiar-Law of Easement and Licenses in India Third edition (1955) Ch. IV. P. 502 and foll; K.N. Joshi Easement and Licensee,

Third Edn. (1957) Part 11 Ch. II pages 307 and foll:).

Where a channel has been constructed by the Government, acting (sic) crease the well-being of the country by extending the benefit of irrigation

and in pursuance of that purpose the flow of water is directed to the village designed to be benefited the rights of the owners of the fields registered

under that source of irrigation are co-extensive with the natural rights of riparian owners. Thus, it would appear that though the rights relating to an

artificial stream are not natural rights, they may be acquired under such circumstances and even so used as to be coextensive with the natural rights

of riparian owners. (See the Catena of decisions cited in Katiar (ibid) at pages 530-531).

The rights relating to the taking of water for use and consumption, though no doubt relating to riparian owners, have been laid down by Erie.

C.J., in Gaved v. Martyn (1865) 19 C.B. (N.S.) 742, as follows:

The flow of a natural stream creates mutual rights and liabilities between all the riparian proprietors along the whole of its course: Subject to

reasonable use by himself, each proprietor is bound to allow the water to flow on without altering the quantity or quality.

To this may be added that as between himself and lower riparian owners, the upper owner is not only bound to allow the water to flow on but

is entitled to insist that it shall flow on. He has the right to have the natural stream come to him in its natural state, inflow, quantity and quality, and to

go from him without obstruction: Chase more v. Richards (1859) 7 H.L.O. 382. Any obstruction by a lower riparian owner of such a character

that it might reasonably be expected that injury would be caused to an upper riparian owner, is actionable at the suit of the latter.

The whole law on the subject was once again re-stated by Lord Cairns in Swindon Water Works Co., v. Wills and Berks Canal Navigation

Co. (3) (sic), in the following words:

Undoubtedly the lower riparian owner is entitled to the accustomed flow of the water for ordinary purposes, for which he can use the water. That

is quite consistent with the right of the upper owner also to use the water for all ordinary purposes, namely as had been said ad lavandumes ad

potandum, whatever portion of the water may be thereby exhausted and may cease to come down by reason of that use. But further there are uses

no doubt to which the water may be put to by the upper owner, namely, uses connected with the tenement of that upper owner. Under certain

circumstances provided no material injury is done, the water may be used and may be diverted for a time by the upper owner for the purposes of

irrigation. That may well be done and the exhaustion of the water which may thereby take place may be so inconsiderable as not to form a subject

of complaint by the lower owner, and the water may be restored after the object of irrigation is answered in a volume substantially equal to that in

which it passed before. Again it may be well said that there may be use of the water by the upper owner for, I will say manufacturing purposes, so

reasonable that no just complaint can be made upon the subject by the lower owner. Whether such a use in any case could be made for

manufacturing purposes, connected with the upper tenement would, I apprehend, depend upon whether the use was a reasonable one. Whether it

was a reasonable use would depend at all events in some degree on the magnitude of the stream from which the deduction was made for this

purpose over and above the ordinary use of water.

Material injury is caused to a lower riparian owner when abstraction of water by an upper riparian proprietor materially diminishes the quantity

of water ordinarily received by the lower owner. Whether material injury has been caused to the riparian owners lower below is thus a question of

fact mainly depending upon the size of the river or natural stream and the proportion which the water abstracted bears to the entire volume.

Inevitably some decrease is bound to take place by evaporation and percolation when water is utilized for irrigation or other purposes connected

with the enjoyment of the upper tenement; but if the decrease in the volume of water is relatively insignificant, the principle de minimus non curat lex

(law does not take account of trifles) will apply, and no cause of action will accrue to owners lower below. Debiprasad Singh v. Joyanath ILR 24

Cal. 865 , Hari Singh and Others Vs. Kanchan Mahto, Bal Bhadra Prasad, In re. 11 C.W.N. 83, Harris v. Harrison 93 California 676, and M.A.

Shenha, In re AIR 1927 Rang. 171.

The decision of this Court in Rayappan v. Virabhadra ILR 7 Mad. 530, is apposite here. Its facts were briefly as follows: The plaintiffs had

from time beyond memory enjoyed, for the irrigation of their lands, the use of surplus water flowing in a defined channel through a sluice from a

tank situated in defendants'' village. The defendants placed a turf dam across this channel within the limits of their property, diverted the water into

a new channel dug by them, which carried the water for some distance by a different course, until it rejoined the old channel at a point lower down,

and they also filled up the portion of the channel between the dam and this last point. The effect of these operations on the part of the defendants

was to diminish the supply of water which the plaintiffs had been accustomed to receive through the channel. The Court held that, whether the

channel was natural or artificial, the surplus water of the tank or drainage of the fields already watered by the tank, having once entered a defined

channel, and been enjoyed by the plaintiffs for such a long period, the defendants had no right to interrupt the water in the channel; and they were

therefore directed to remove the obstructions, and were restrained by an injunction.

It is no doubt true that the Government in India has at all times assumed itself and has the right in the public interests to regulate the distribution

of water. This however is subject to the right of the ryotwari, holder to whom water has been supplied to continue and to receive supply as is

sufficient for his accustomed requirements. S. of S. v. Janakiramayya 37 Mad. 322. Ponnuswami Thevar v. Collector of Madras 5 M.H.C.R. 6,

Krishnayyan v. Venkatachala 7 M.H.C.R. 60, Sankara Vadivalu v. S. of S. 28 Mad, 72, Fischer v. & of S. 32 Mad. 141, Nyanappa v. Veeran

32 Mad. 423, and Ramachandra v. Narayanaswami 16 Mad. 333. See also discussion in Sundararaja Iyengar Land Tenures in the Madras

Presidency (1916) Ch. IV p. 6263.

Bearing these principles in mind, if we examine the facts of this case, we find that no prima facie case has been made out for staying the

operation of the decree of the learned Subordinate Judge. The cement pipe is an innovation and the permission given by the Collector is only ex

post facto recognition of an innovation to the prejudice of an existing arrangement governing the land owners under that registered source. This the

Collector cannot do unless the taking of water is shown to be without detriment to the registered wet land owners. The lower Court has found that

this has not been done. That the registered wet lands are entitled to the Mamool or accustomed supply of water and that any interference thereof

without providing a new and equally efficient source of supply will give rise to action by the aggrieved party, has been laid down in the following

decisions: Kayambu Servai v. Karuppaiah Servai AIR 1949 Mad. 813, Krishnaswami Chettiar v. Pappi Naicker AIR 1944 Mad. 228, Secretary

of State v. Nageswara Iyer AIR 1936 Mad. 923 Malyam Patel Basavana Gowd (dead) and Others Vs. Lakka Narayana Reddi and Another, Rai

Sahib C.N. Maduranayakam Pillai Vs. The Secretary of State for India in Council, and Latchumana Gaundan v. Pandiyappan (1950) 2 M.L.J.

658.

Secondly, the evidence in this case shows that owing to the lie of the land when water is tapped at the place ""T"" the entire water flowing

northwards gets completely drawn towards the lower lying, eastern lands. The cement pipe fixed below the bed-level of the surplus channel,

abstracts the entire water flowing in the surplus channel. This is enough to show prima facie the material injury complained of by the respondent:

see also the evidence of P.W. 4 whose testimony the learned Subordinate judge has accepted. There is no acceptable evidence to show that the

plaintiff has been getting copious supply of water after the fixing of the cement pipe as spoken to by D.W. 4, the owner of S. 126/10, D.W. 5. the

son-in-law of the owner of 6. No. 126/13 and D.W. 6, the owner of S. No. 126/8 and the defendant, as their testimony in obviously interested.

The Revenue Divisional Officer''s evidence is unhelpful because he inspected the locality at a time when there was not a drop of water in the

channel. Similarly, the inspection by the learned District Munsif was conducted at a time when there was not a drop of water in the channel. I need

not add that unless the status quo ante bellum in this irrigation war between appellant and respondent is preserved as before this innovation, we

would be causing irreparable loss and injury to the respondent and we would, be perpetuating what has been the persistent endeavour of the

petitioner to cause material injury to the respondent. These petitions are dismissed.