Duraiswamy Udayar vs Venkatachala Reddiar and Another

(1) These are two connected second appeals 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 judgment of the learned District Munsif of Ariyalur in O. S. Nos. 64 of 1954 and 59 of

1955 respectively.

(2) The facts of this case can be easily followed if we take on hand the combined sketches (marked Parts I and II) annexed to this judgment for

reference.

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

Perembalur taluk. the only other wet field in the locality is S. F. 126/20 (15 cents in extent) belonging to the defendant Duraisami Udayar. these

three went 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 Duraisami Udayar for a declaration that the latter is entitled to take water to his

land S. No. 126/20 only through the channel K1 to K8 in x. 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.

(4) 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. Duraisami 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 I sketch and which is point A-1 in part II sketch annexed to this judgment. Duraisami, Udayar put loose earth over the cement pipe

and is taking water through the cement pipe to this dry field S. 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 lose his accustomed 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 Duraisami 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 3-11-1954 ex post facto approving the laying of the

cement pipe in question by Duraisami 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 the Collector was that by putting up the cement pipe and taking the water at the point ""T"" to his field

the Udayar was not causing any diminution of water for the irrigation of the Reddiar''s wet lands.

(5) The trial Court accepted the contentions of the defendants and dismissed the suit. On appeal the learned Subordinate Judge 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 of 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 3-

11-1954 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 therein is allowed with costs and there will be a

decree as prayed for in that suit, with costs.

(6) The short point for determination in these appeals is whether the conclusion of the learned Subordinate Judge is in accordance with the settled

law on the subject. I have had the advantage of hearing elaborately the learned advocate Messers. R. Gopalaswami Ayyangar and V. Ramaswami

in disposing of C. M. P. Nos. 794 and 805 of 1958 at an earlier stage and I have also had the pleasure of these learned gentlemen taking me once

again through the settled principles on this subject.

(7) 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.) (1899), Lecture X

page 256 and following: Katiar''s law of Easement and Licenses in India, Third Edition (1955), Chapter IV, page 502 and following: K. N. Joshi,

Easement and Lincenses, Third Edition (1957) Part II, Chapter II, page 307 and following.

Where a channel has been constructed by the Government, acting as agent of the community to increase 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 villages 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 or riparian owners. Thus, it would appear that

though the right relating to an artificial stream are not natural rights, they may be acquired under such circumstances and even so used as to be co-

extensive with the natural rights of riparian owners. (See the catena of decisions cited in Katiar (ibid) at pages 530-531).

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

J. in Gaved v. Martyn. (1865) 19 C. B. (N. S.) 732 as follows:--

The flow of a natural stream creates natural 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 (1859) 7 H. L. C. 349. 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.

(9) The right relating to the taking of water for use and consumption relating to riparian owners is the same in India, England and America. But as

pointed out by Angell on water-courses, 7th Edn. at p. 120 there are few cases of irrigation decided in England because that is a country to which

drainage is more important than irrigation. On the other hand. the United States of America contains large tracts of land where the problems of

irrigation are similar to ours. That is why in America the subject of irrigation has been the subject matter of detailed studies of which it is enough to

mention the standard works: Fanham''s ""The Law of Waters and Water-rights"", (3 Volumes), published by the Lawyers'' Co-operative Publishing

Company; 56 American Jurisprudence: Angell on water-courses 7th Edition (Little Brown and Company, Boston); Gould on ""The Law of Waters

and riparian Rights"", Third Edition. The standard English text-books are Coulson and Forbes on Waters and Land Drainage, Sixth Edition (Sweet

and Maxwell) and Halsbury''s Laws of England (Hailsham Edition, volume 33, relating to ""Water and Water-courses"". In India unfortunately in

spite of irrigation being one of the most important subjects of controversy, there are no standard text-books and we have to rely on the case-law

to which reference will be made presently. I have extracted in State of Madras Vs. S.K.S.O. Muhammed Ghani Tharoganar, , the relevant

passages on riparian right from these classic treatises.

(10) It is enough to cite here two well-known decisions clinching the subject. Lord Cairns in Swindon Water Works Co. v. Wilts and Berks Canal

Navigation Co., (1876) 7 H. L. 697 has observed as follows:-

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 s

quite consistent with the right of the upper owner also to use the water for all ordinary purposes, namely as had been said ad lavandum et 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: 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 the water.

In Rayappan v. Virabhadra ILR 7 Mad 530, the facts were 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 defendant''s 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. It was held that, whether the channel was natural or artificial, the surplus water of the tank or the 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.

(11) The next question which arises for consideration is the scope of the authority of the Government to distribute the water for irrigation to the

registered Ayacutdars and the ryot''s right to water & in regard to which the following extract from S. Sundararaja Iyengar''s land Tenures in the

Madras Presidency (1916) is apposite:

It is one of the most important functions of the Government in India to construct new works of irrigation and to repair old ones according to

means and circumstances: Per Subramania Ayyar, J., in Sankaravadivelu Pillai v. Secy. of State 15 MLJ 32; Robert ; Fischer v. Secy. of State 19

MLJ 131. It has at all times assumed itself, and has the right, in the interests of the public to regulate the distribution of water subject to the right of

the ryotwari holder to whom water has been supplied, to continue to receive supply as is sufficient for his accustomed requirements: Ponnuswamy

Thevar v. Collector of Madura 5 Mad HCR 6: Kristna Ayyar v. Venkatachela Mudali, 7 Mad HCR 60; Ramachandra Aiyar v. Narayanaswami,

2 MLJ 279 : 15 Mad LJ 32; Nynappa Servai v. Veeran, ILR 32 Mad 423. It has been held that this right can be received even in those

proportions of natural rivers passing through proprietary estates as its exercise does not depend on the ownership of the bed of the stream, 19

MLJ 131; but a contrary view has been taken by Sankaran Nair, J., in the Secretary of State v. Janaki Ramayya, 24 MLJ 365.

But the right does not include a right to flood a man''s land, because, in the opinion of the Government the erection of a work which has this effect

is desirable in connection with the general distribution of water for the public benefit; nor does it extend to disturb existing arrangements to the

prejudice of any ryot: 2 MLJ 279. The position of the Government in regard to liability for damages caused to individuals by such irrigation works

has been compared by the Privy Council in Madras Rly. Co. v. Zamindar of Karvetnagaram, 1 Ind App 364 to that of persons acting under

statutory powers. It is not bound to repair irrigation works whatever they require repair and a ryotwari land-holder has no right to damages against

the Government in respect of loss incurred by him owing to failure of water caused by such non-repair: Secy. of State v. Muthuveeran Reddi, 20

MLJ 869:

The ryot has no right that water should be supplied to him through a particular source, and the Government has the right to alter the sources,

means, works, etc., from or by which the water for irrigation is supplied to the ryot entitled thereto, so long as his right to water is not prejudicially

affected so as to cause real damage. A ryotwari proprietor whose source of water supply is interfered with by another is entitled to an injunction

restraining him from such interference: Rama Odyan v. Subramania Ayyar, 18 Mad LJ 178.

The right of the ryot to receive the accustomed supply of water is not based on any contract with the Government though a contrary view has also

been taken. According to Subramania Ayyar, J. it is of the nature of a right in rem and on this principle apparently it has been held that the person

at whose instance the Sub Collector interfered with the source of supply to the plaintiff were held liable in damages to the latter: 2 Mad LJ 279,

and the contrary has been held in Chinnappa Mudaliar v. Sikka Naicken, 10 Mad LJ 249.

See also the later decision Malyam Patel Basavana Gowd (dead) and Others Vs. Lakka Narayana Reddi and Another, ; Lachuma Goundan and

Others Vs. Pandiyappan alias Annamalai Goundan and Others, .

(12) Bearing these principles in mind, if we examine the facts of this case, I have no hesitation in holding that the conclusion of the learned

Subordinate Judge is correct and is in accordance with the settled law on the subject. 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. On

ample and relevant evidence the lower Court has found that this has not been done.

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 low lying eastern lands. The cement pipe fixed below the bed-level of the surplus channel must in accordance with

the law of gravitation abstract the entire water flowing in the surplus channel. The learned Subordinate Judge''s appreciation of the oral evidence

and his acceptance of the testimony of P.W. 4 has not been shown to be either inadequate or incorrect meriting interference at my hands.

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. No. 126/10 D.W. 5, the son-in-law of the owner of S. No. 126/13 and D.W. 6, the owner of S. No. 126/8 and the

defendant, as their testimony is 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. Therefore, the conclusion of the learned Subordinate Judge based on acceptable and relevant evidence is a

finding of fact which is binding on me and cannot be interfered with in second appeal.

(13) The net result of this analysis is that there has been substantial interference with the mamool or accustomed supply of water to the registered

wet-land owner and that is has not been shown that a new and equally efficient source of supply has been prescribed by the District Collector. The

reliefs asked for by the plaintiff have to be granted and been properly granted: see Kayamby Servai v. Karuppiah Servai AIR 1949 Mad 813;

Krishnaswami Chettiar and Others Vs. Pappi Naicker and Others, ; The Secretary of State for India in Council Vs. P.S. Nageswara Ayyar

(deceased) and Others, : Malyam Patel Basavana Gowd (dead) and Others Vs. Lakka Narayana Reddi and Another, ; Lachuma Goundan and

Others Vs. Pandiyappan alias Annamalai Goundan and Others, .

(14) These Second Appeals are dismissed and in the circumstances, where further embitterment of neighbouring land owners should be avoided

and they should at least henceforth live in amity, without costs. No leave.

(15) Appeals dismissed.