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Judgment
Govinda Menon, J.—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.
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.
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.
At the very outset it has to be remarked that the law is quite clear that an appeal lies against an order of costs only when that order involves a
matter of principle, as where a formal party to the suit against whom no relief is claimed is made to pay the costs of the suit, or where there has
been no real exercise of discretion in making the order of costs. This may happen when the successful party is deprived of his costs or is made to
pay the costs of the losing party. If the discretion was exercised in fact, the appellate Court would not interfere merely because it would itself have
exercised the discretion in a different way. An appeal would also lie where the order as to costs proceeds up on a misapprehension of fact or law.
The above principles are well settled, and what has to be now decided is whether the learned Subordinate Judge exercised those principles in
coming to the conclusion he did. The plaintiff, as P.W. 4, deposed that the suit lands were irrigated by the Thamba channel by taking water into it
by cutting an opening in the southern channel and by crossbunding it to the east. He also deposed that the Thamba belongs to the Government.
P.W. 6, the owner of Survey Nos. 223 and 224 corroborated the evidence of the plaintiff that the water was taken by an opening in BCD and
through the Thamba channel to the plaintiff''s land and not through Survey Nos. 221 and 222. Though it is not specifically mentioned in the plaint
that the water was being taken by cutting a vent at the place C and through the main aqueduct GEE, the definite case put forward by the plaintiff
was that he was entitled to irrigate his lands by taking water by cutting the vent. Rightly or wrongly, the learned District Munsif for the reasons
given by him which have been extracted by me above was of opinion that at the exercise of his own will the plaintiff is not entitled to have the vent
cut into the channel but that it is open to him to approach the Governmental authorities to properly work out the decree by taking such steps as the
authorities deemed fit. It may be that this decision was wrong. But, is the appellate Judge entitled to differ from that decision in an appeal by the
plaintiff only as regards the costs disallowed to him ?
Applying the principles which are so well known and which have been mentioned by me above, it cannot be said that the exercise of discretion
by the District Munsif was not proper. It was not done in any haphazard manner, nor was it done, without giving his attention to the case before
him., In the circumstances it seems to me that the learned Subordinate Judge should not have gone into the question as regards the rights of the
plaintiff to cut the vent in the channel at the place marked C. The plaintiff was given the proper guidance in being asked to approach the authorities
for getting such reliefs as he may be entitled. I am inclined to agree, with the District Munsif that in the circumstances of the case the proper order
was that he had directed, for it cannot be said that,in a Government channel every party is entitled to. cut vents at the place which he thinks is
proper for taking water, to his lands. In the circumstances of the case it seems to me that the learned Subordinate Judge was not justified in
differing from District Munsif.
Such being the case, the second appeal is allowed, the decree of the lower appellate Court is set aside and the decision of the District Munsif is
restored. As it is merely a matter of discretion, I direct that both the parties do bear their costs in the second appeal.
Leave to appeal is refused.