K. Palaniappa Moopan and others vs Angammal and others

Natesan, J.—This second appeal is by the defendants who have lost in both courts below and the question involved is as to the right of

drainage of irrigation water. Plaintiffs 1 to 3 are stated to be owners of adjoining fields, S. No. 290 of Mohanur village and S. No. 8/4-C of

Pettapalayam village, Salem Dt. the fourth defendant being the lessee of the said lands for a period. They claim that for several decades the surplus

water from these fields was drained into field S. No. 17 poramboke, through a defined channel and then it flowed over the defendants'' lands and

onwards over lands of others in a defined channel till it ultimately fell into the Cauveri river. The cause of action for the suit is obstruction by the

defendants to the usual flow of the surplus water over their fields, leading to the stagnation of the water on the plaintiffs'' lands and consequential

damage to crops. In the body of the original plaint, fields of the defendants over which the water flowed had not bean indicated but there was a

plan attached. Later the plaint was amended to show that the surplus water from the suit lands first flowed into survey field S. No. 17, then over to

the defendants'' fields S. Nos. 11, 13, 14 and 16, then over survey field S. No. 15, belonging to a third party and finally it reached the river. The

defendants denied the right of drainage claimed by the plaintiff. The existence of a permanent drain channel was refuted and it was stated that the

water used to be drained through defendants'' lands only with permission and on payment of compensation without causing inconvenience or

damage to the defendants. S. No. 17 through which the surplus water of the plaintiff first flowed is burial ground poramboke and the defendants

defied their questioning the plaintiffs'' right if any to drain the surplus water into S. No. 17. The case has had a chequered career. From the decree

in favour of the plaintiff by the trial court, there was an appeal and in the appeal, the suit was remanded. The order of remand was challenged in

this court and this court set aside the order of remand while providing for a finding being submitted by the trial court on the additional issue on the

question whether there was a defined drainage channel over the survey fields S. Nos. 11, 13, 14 and 15, in continuation of a channel in S. No. 17.

The finding was in favour of the plaintiffs and the appellate Court in the judgment now under appeal on a full reappraisal of the evidence has

accepted the finding and held that the plaintiffs have been draining their surplus irrigation water along a definite channel which originally ran through

S. Nos. 11, 13 and 14 and had subsequently been diverted into S. Nos. 16 and 14. P.W. 3, the karnam of the village, has stated that the

channel''s course has been shifted slightly to the north from its original position so that the channel now flowed over S. Nos. 16 and 14 before it

entered S. No. 15. According to the karnam, the channel has been in its present position for over 22 years, and it had a defined course in S. No.

The defendants'' case of permissive user and of an agreement to pay compensation for the channel over their fields has been found against and

the first defendant has admitted that he had occasionally shifted the position of the channel. He was about 75 years old when ho gave evidence and

he has deposed that the surplus water from the plaintiffs'' land was being drawn along the channel through his land on payment of compensation.

Long user of the channel as indicated in the plan Ex. B-9 was found proved and established and the lower appellate Court has now held that there

is a drainage channel in S. Nos. 16 and 14, that is, in the fields now owned by the defendants in continuation of a channel in S. No. 17

porambokes and that the plaintiffs have got a right to drain the water from their lands bearing S. No. 290 and S.N. 8/4-C. Where long user is

established, the presumption is that it is as of right until the contrary is proved. In the present case, the plea of permissive user on payment of

compensation has been found against. This conclusion of the Courts below fully in consonance with the evidence and the state of things on the land

as seen from the records cannot be impeached in second appeal. However learned Counsel takes exception to the decision on grounds while

challenging the finding otherwise also. The first contention is that the suit as framed is not maintainable as no effective relief could be granted to the

plaintiffs without the State of Madras, the owner of the poramboke field S. No. 17 and the owners of the fields lower down, S. No. 15 and other

fields, being party defendants in the suit. I see no force in this objection. It may be that the owners of other fields over which the channel flows are

proper parties, but certainly they are not necessary parties. Their non-joinder cannot be fatal to the suit. There are several servant tenements over

which the channel passes, but the defendants also have obstructed according to the plaintiffs. There has been no obstruction from the State or from

the owner of held S. No. 15 to the exercise of the right claimed by the plaintiffs. I am unable to appreciate the contention that the plaintiffs cannot

have effectual relief in their absence. If any of them should interfere with the mamool flow of water or at any subsequent period, that would give a

fresh cause of action to the plaintiffs and a cause of action to the defendants also if they are inconvenienced and injured. In my view, it would be

unreasonable to compel the plaintiffs to implead the owners of the servient lands all along the course of the channel whether they had any cause of

action against them or not and even though there was no obstruction to or denial of the plaintiffs'' right by these persons.

It is next contended that the lower appellate Court erred in relying upon the Commissioner''s Report and plan obtained at an earlier stage in the

appeal, that is, before the order of remand which was set aside. Learned Counsel submits that the trial Court itself should have appointed a

Commissioner and considered this report and pleas. This objection again is without substance and it is recorded by the lower appellate Court that

at the time of the arguments in the appeal learned Counsel appearing in the case agreed that the appellate Court would mark the Commissioner''s

Report and plans and then dispose of the case. It is by consent that the Commissioner''s Report and plans had been taken as evidence in the case.

The third objection has been taken is that the plaint is vague in regard to the course of the channel and its measurements. No doubt, the plaint

does not give the depth and the width of the channel. But the Commissioner has given the necessary details regarding the measurements and size of

the channel on the land in his report which is marked as Ex. E-8. This is specifically pointed out by the learned Subordinate Judge. It is then argued

that whereas the channel was originally shown in S. Nos. 11 and 13, rights are now claimed to take the channel over S. Nos. 14 and 16. But this is

the course which the channel has taken for over 22 years according to P.W. 3. A reference to the plan would show that the channel has been

shifted slightly to the north of S Nos. 11 and 13 to make it flow about the boundary line between S. Nos. 11 and 16 and S. Nos. 14 and 13 a little

to the north, before it flowed into S. No. 15. D.W. 1 has stated that he used to shift the position of the channel, and it may be that the servient

owner had some two decades back minimised the inconvenience to himself by slightly varying the course and this has been acquiesced in by the

plaintiffs. The plaintiffs claimed relief for the channel which has been running through the defendants'' lands and the channel has now been clearly

demarcated by the Commissioner in his plan Ex. B. 9. But the decree as drafted provides for the drainage course to run through S. Nos. 11,13, 14

and 16. This is obviously incorrect and cannot stand. The channel is found to flow only over S. No. 16 and 14, before it enters S. Nos. 15. The

plaintiffs cannot have a right to take the channel in the circumstances over S. Nos. 11 and 13 also. The decree therefore will have to be amended

and the latter part of Cl. (1) of the decree after the words in bracket ""(S. No. 290 of Mohanur village and S. No. 8/4-C of Pettapalayam village)

should read ""through the drainage course in S. No. 17 of Pettapalayam village and from there through S. Nos. 16 and 14 as shown in the

Commissioner''s plan Ex. B. 9"". Subject to the variation of the decree as above indicated, the judgment and decree of the Courts below are

confirmed and the second appeal dismissed. In the circumstances, the parties will bear their respective costs through out. No leave.