The interdependence of land ownership and water usage, customary usage of water, and entitlement to relief for unauthorized water use.

1. The dispute in this case relates to the use of the water in a tank in an agraharam. The plaintiffs and the defendants own lands in that agraharam which is about 922 acres in extent. Of that, about 110 acres are wet lands. The plaintiffs case is, that of these 110 acres, 53-54 acres represent the wet ayacut under the suit tank. The defendants, it is alleged, attempted to convert a part of their dry land in the village into wet land by using the water of the tank. On that ground, the plaintiffs have asked inter alia for an injunction restraining the defendants from illegally using the water.

2. The District Munsif has held that the ayacut under the suit tank is 53-54 acres and that the defendants act in irrigating a plot not comprised in this area, with the water of the tank, is wrongful and accordingly has granted the injunction to the plaintiffs. The learned Subordinate Judge has held that the proper remedy is a suit for partition and not an injunction and on that ground has reversed the Munsifs judgment on this point. He, however, has confirmed the decree passed by the District Munsif for damages.

3. The main contention on behalf of the defence is, that the various sharers of this agraharam are entitled to the water of the tank in certain defined shares. It. is then argued that they are at liberty to use the water of which they are the owners, in any manner they chose; in other words, that the ownership of the water has no necessary connexion with the ownership of the lands which are described as being "under the wet ayacut of the tank." This argument may be illustrated thus. If A, B and C own, say,, 10, 20 and 40 acres, they own the water-in the tank in the same proportion. The water to which B is entitled is double of what A may take and similarly C may take double of what B may take. But it is said that this has no reference to the ownership of the lands; so that, each of these persons may use the water for any purpose he likes, so long as he does not exceed the quantity to which he is entitled. Mr. Satyanarayana for the defendants was constrained to argue on this; hypothesis that even if a sharer parts with all his lands in the village, he can-still retain his previous ownership of the water.

4. This contention seems to be utterly opposed to the evidence in the case. Plaintiff, deposes:

The wet ayacut under the tank is 53 acres.... The wet ayacut has been in existence from time immemorial...The water-in the tank is not sufficient even for wet ayacut.... They (the documents) show the extent of wet that is being...cultivated from time immemorial.... There was an implied agreement.... I say implied agreement...since there has been no increase in the wet ayacut all this time.

5. This evidence clearly shows that it has been customary in this village, to use the water of the tank for cultivating the 53 odd acres, described as "wet ayacut under the suit tank." The evidence of P.W.s 2 and 3 confirms the version of plaintiff 1. We are of opinion that the position taken up by plaintiff 1 is correct. From immemorial usage must be implied an agreement regarding the use of the tank water in the manner described by him.

6. The evidence on the record completely disproves the case put forward for the defence, namely, that the enjoyment of the water is independent of the ownership of the land irrigated by it.

7. The argument overlooks a cardinal fact that whereas it is undoubtedly true that the agraharamdars own the water of the tank in the same proportion as they own the lands irrigated by that water it by no means follows from this, that their ownership of the water is unconnected with their ownership of this land.

8. For instance, if one acre out of this area of 53 acres passes into the hands of an individual, his right to the water may in a sense be described as being 1/53 of the tank water. It does not, however, follow from this, that he may take from the tank 1/53 of the water in it and use it for any purpose he likes. In our opi