Mahanakali Lakshmiah and Another vs Karnam Narayanappa and Others

Abdur Rahim, J.—The plaintiffs-appellants sued to recover possession of two plots of land 12A and 12B and asked for a declaration of

their rights and sought to restrain the defendants from causing obstruction to the flow of water from a channel called Diguva Kalava to the lands in

dispute. They got a decree for possession of the lands excepting an acre. There are two questions in the appeal, one is whether they are entitled to

an injunction as prayed for or at least to a declaration that they are entitled to the use of the water in the Diguva channel for irrigating the lands 12A

and 12B and the other, whether the judgment of the lower appellate court with respect to one acre disallowed to them is right.

The channel takes its rise in the bed of a river called Pennar. The land of the defendants is lower than the land of the plaintiffs. The channel is

admittedly a Government channel and the lands of both parties are ryotwari It seems to be an admitted fact that the channel which is shown in the

Government register as the source of supply to the land in dispute is another channel called Yarragunta Kalava and the Diguva channel is shown in

the register as the source of supply to the defendants'' land. The defendants have been in possession of the disputed lands for a long time about 30

years or so as lessees of the plaintiffs. During that period they used the Diguva channel for irrigating the lands in suit. It would also appear from the

evidence that for some time Yerragunta channel was in disrepair. That might explain the fact why the water of the Diguva channel was used by the

defendants for irrigation while they were in possession of the plaint lands. The channel being a Government channel, neither the plaintiffs nor the

defendants have any right to it. Both of them holding wet ryotwari lands are entitled to the supply of water from the Government for the irrigation of

their lands. But it is for the Government to distribute the water in any way it thinks fit. That proposition has not been disputed before us and cannot

be disputed having regard to the rulings on the subject. The case of the plaintiffs, as put before us, was not that they had acquired any right of

easement by prescription, which the lower court has negatived, but that the Government having regard to the practice that has obtained within the

last 20 or 30 years would have no objection to their using the Diguva channel for irrigating Survey Nos. 12A and 12B. It is then contended that the

defendants have no right to interfere with their use of the water of the Diguva channel as they have threatened to do. It is not alleged that the

defendants have done anything on the plaintiff''s lands to interfere with their enjoyment of the water, nor even that they have in any way as yet

interfered with the channel which belongs, as already pointed out, to the Government. The only ground for asking for an injunction or for a

declaration is that the defendants have, threatened interference and claim the right to do so. The important point in this connection is that the

Secretary of State who is the owner of the channel and against whom alone the plaintiffs are entitled to claim a supply of water has not been made

a party. The plaintiffs have not only not established what was their original case, that the channel itself belonged to them, but also failed to establish

that they had acquired any easement or right to take water from this channel by prescription. They undoubtedly have a right to a proper supply of

water to ba secured by the Government. But that is quite a different thing from any right in the channel itself or to the use of the water of this

particular channel. If, in a case of this nature, we were to give a declaration in favour of the plaintiffs in the absence of the Government, we should

be really deciding the plaintiff''s right as against the Government without Government being represented in the suit. Indeed Mr. Govindaraghava

Aiyar for the appellants did not claim that they (appellants) were entitled to such a decree. What he says is that the plaintiffs must be held to be in

possession of this right to take water, and as the possessory right has been threatened, they are entitled on the analogy of cases regarding

possessory rights in land to a prohibitory injunction. In this connection our attention has been drawn to a ruling of Benson and Krishnaswami Aiyar,

JJ., reported in Kondapa Rajam Naidu v. Devarakonda Surya-narayana ILR (1910) M. 173 : 20 M.L.J. 803 That case has been considered in a

recent decision of this court reported in Narasapayya v. Ganapathi Row ILR (1913) M. 280 judgment in which was delivered by Miller and

Sadasiva Aiyar, JJ. In that case, the learned Judges thought that the decision in Kondapa Rajam Naidu v. Bevarakonda Suryanarayana ILR

(1910) M. 173 : 20 M.L.J. 803 might be right on its facts, but they held, after a careful and elaborate discussion of the law, that it was not quite

accurate to speak of possessory rights in connection with incorporeal hereditaments and laid down that where a right to easement has not ripened

by enjoyment for the prescribed period, the person who is in actual enjoyment would not have any remedy against persons interfering with such

user and enjoyment. They were therefore not prepared to endorse a proposition to the contrary, if any such proposition was laid down in

Kondapa Rajam Naidu v. Devara konda Suryanarayana ILR (1910) M. 173 : 20 M.L.J. 803 I respectfully agree with the ruling in Narasapayya

v. Ganapathi Row ILR (1913) M. 280 but it is not necessary to pronounce upon the soundness of the view propounded in Kondapa Rajam Naidu

v. Bevarakonda Suryanarayana ILR (1910) M. 173 : 20 M.L.J. 803 as the facts of the present case are clearly distinguishable. Here it was the

defendants that were, for 20 or 30 years before the suit"" using the water of the channel in question for irrigating the land in dispute which was then

in their possession. They had lands lower down which, strictly according to custom and practice, should be irrigated by the Diguva channel. We

have no evidence here as to the arrangement by which the defendants obtained from the Government water from this channel for the irrigation of

Survey Nos. 12A and 12B. But there can be no doubt that whatever be the nature of that arrangement, it was made to suit their own convenience.

It is impossible to see how the enjoyment of water under such an arrangement by the defendants would amount in law to possession of the channel

by the plaintiffs. Whether the proposition laid down in Kondapa Rajam Naidu v. Devarakonda Suryanarayana ILR (1910) . M 143 is correct or

not, his to be considered more fully when the point directly arises. In the present case, the plaintiffs could not in any way be said to have been in

possession of the channel or any easement with reference to it. That being so, there is no authority for granting the injunction which they seek. The

fact is, the plaintiffs have established no right as against anybody in the water of this particular channel, whatever rights they may have as against the

Government for the supply of water to the land in dispute. Further I may add that so far as the question of declaration is concerned, it is a

discretionary remedy and the facts of the case are certainly not such that we should be justified in granting a declaratory decree in the absence of

the Secretary of State, the owner of the channel. On this ground therefore, I shall hold that the subordinate Judge was right in dismissing the

plaintiffs'' claim to an injunction, and that they are not entitled to any declaration with respect to this channel.

[The rest of the judgment is not material to this report-Rep.]

The appeal fails and must be dismissed with costs. The memorandum of objections is also dismissed with costs.

Napier, J.

I agree and would only add a few words. The lower appellate court has refused the injunction asked for on grounds which my learned brother

and myself think are not correct, and it is for that reason that [ wish to state what I conceive to be the correct view to take. The lower appellate

court has held that as the plaintiffs could not claim against the Government the right to take water from the channel, therefore the defendants were

entitled to prevent the plaintiffs taking it. That statement of law is to be found at page 35 of the judgment where the learned Judge says, ""the

defendants who hold land, irrigated by the channel are entitled to prevent the plaintiffs from using the water, to which they have no right."" This

statement of law is, in my opinion, entirely unsound and I agree with my learned brother in holding that the rights both of the plaintiffs and of the

defendants to water in respect of the ryotwari wet land which they hold are, as has been laid down by this court time after time, the right to their

customary supply by whatever means the Government chose to put the water on their land. But it appears that, in the lower courts, the claim by the

plaintiffs for an injunction was put on the ground that they had acquired some sort of easement, probably, by the user of this water by the

defendants for 20 years when they were the plaintiffs'' tenants. That contention, I agree with the lower appellate court, is entirely unsound It is

impossible for a person to acquire an easement in water in a Government channel when that water has been supplied by government for the

purpose of irrigating land and in fulfilment of the duty cast upon them to supply water to lands which they classify as wet. Therefore no easement

can possibly be acquired. Mr. Govindaraghava Iyer in this court has put his case on an entirely different footing and has asked us to give an

injunction limited to the time and period during which the Government is prepared to give the necessary water for this land down the channel. The

answer to that claim is to be found in the judgment which has been delivered by my learned brother in which he points out that there is no

possession here and that there is no specific right in particular water in this particular channel; and in view of the fact that the Government is not a

party to this suit, it would be inadvisable to give any injunction which would necessarily be based on a declaration of right when such declaration of

right can only be operative as long as the Government thinks it advisable to supply water by this channel. I therefore entirely agree that this is not a

case in which an injunction should be granted and, on this ground, I would uphold the lower appellate court''s judgment. On the other points, I am

in entire concurrence with the view expressed by my learned brother. The appeal is dismissed with costs.