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1930 Supreme(Mad) 40
Madras High Court
K Sastri
Gajapathi Krishna
Versus
His Highness Sri Mirja Rajah Sri
Decided On 25 February, 1930
The main legal principle established in the judgment is that the mere non-user of an easement is not sufficient for its implied release, as per Section 38 of the Easements Act. Additionally, the court clarified that the sale of property does not necessarily affect the rights of the owner to repair an irrigation tank, as long as there is no negligence in the repairs.
Headnote:
Abandonment - Irrigation Rights - Easements Act - [ABANDONMENT] - [IRRIGATION RIGHTS] - [Easements Act] - [Section 38, Section 47]
Fact of the Case:
The plaintiff, Rajah of Vizianagram, filed a suit against the Zamindars of Pata Tekkali and Nandigam for an injunction to restrain them from restoring and improving the Padmanabha Sagaram tank or constructing new weirs that would affect the plaintiff's rights in certain villages. The tank was constructed in the 19th century to irrigate the defendants' lands when the estates were joint. The plaintiff claimed that the defendants had abandoned the tank in 1878 and lost their rights to restore it, affecting the plaintiff's rights as they existed in 1899 when the villages were purchased.
Finding of the Court:
The Subordinate Judge found that the defendants never abandoned the tank, were jointly entitled to it, and had not lost their right to repair it. The court also found that the lands in Mallividu were liable to submersion and were being actually submerged before the tank breach in 1878. The court held that the plaintiff was entitled to damages for the years 1921-1923 and granted an injunction against the 2nd defendant restraining him from increasing the height of the bund of the tank or the surplus weirs.
Issues: The issues included the right of the plaintiff to the Padmanabha Sagaram tank, the entitlement to have the bund of the tank lowered, and the submersion of lands sold by the Court of Wards to the plaintiff. The court also considered whether the defendants had lost their right to repair the tank and whether the sale by the Court of Wards affected the defendants' rights.
Ratio Decidendi: The court held that the defendants had not abandoned the tank and had the right to repair it. It was also established that the sale by the Court of Wards did not affect the defendants' rights to repair the tank. The court found that the plaintiff, who purchased a portion of the tank bed, was aware of the potential submersion of the land if the tank was repaired, and therefore, was not entitled to damages or an injunction against the 2nd defendant.
Final Decision: The court reversed the decree of the Subordinate Judge, dismissed the plaintiff's suit with costs of the 2nd defendant throughout, and dismissed the Memorandum of Objections with costs.
Kumaraswami Sastri, J.
1. Second defendant is the appellant. This appeal arises out of a suit filed by the plaintiff who is the Rajah of Vizianagram against the 1st defendant who is the Zamindar of Pata Tekkali and the 2nd defendant who is the Zamindar of Nandigam for an injunction restraining the defendants or either of them from restoring and improving the irrigation tank called the Padmanabha Sagaram or to construct new weirs at any portion of it so as to affect the rights of the plaintiff in the lands situate in Mallividu and Kallada villages, to direct them to remove the newly placed bund of Padmanabha Sagaram tank at the places where it was breached in 1878 and to remove the newly constructed surplus weir, or in the alternative for damages, which the plaintiff estimates at Rs. 1,000 per annum.
2. The facts leading to this appeal are as follows:--The estates of Tekkali and Nandigam formerly formed one estate known as the Tekkali Estate. The Padmanabha Sagaram tank was constructed about the year 1813 or so by a former proprietor of the estate in order to irrigate certain villages. The estate was partitioned in 1864 and became two estates, one known as Pata Tekkali which is now owned by the 1st defendant and the other known as Nandigam which now belongs to the 2nd defendant. In the year 1878 owing to abnormal rains the bund breached considerably and it was not capable of storing as much water as it used to do. The proprietor of the Nandigam Estate at that time got into debt and financial difficulties and the estate was subsequently taken over by the Court of Wards and managed. After the estate was restored to the heirs of that Zamindar the lank repairs began in 1910 and were completed in about 1913. In 1920 the plaintiff complained that the effect of the repairs was to flood a portion of his lands in the village of Mallividu and this suit was filed in 1923 for the reliefs above stated.
3. When the Nandigam Estate was managed by the Court of Wards, they resolved to sell some villages in the estate in order to discharge the debts incurred by the Zamindar and put up for sale five villages. These villages were purchased in auction by the Rajah of Vizianagram on the 12th of June, 1899. Two of the villages with which we are concerned were Kallada and Mallividu.
4. The plaintiffs case is that by reason of the repairs and the erection of the surplus weir 74 acres 49 cents of his lands in Mallividu and 7 acres 30 cents of his lands in Kallada have been submerged and rendered unfit for cultivation. He states in his plaint that the Padmanabha Sagaram tank which bounds the village of Mallividu was a tank constructed in the beginning of the 19th Century to irrigate the lands of the 1st and 2nd defendants when the two estates were joint, that the estate became severed in 1864, that in 1878 the Padmanabha Sagaram tank was breached and was since abandoned as a tank by defendants 1 and 2 and remained in the same condition till 1913, that in 1912 there was a dispute between the plaintiff and the 2nd defendant regarding the eastern boundaries of Mallividu village and the Survey authorities fixed it by placing stones along the boundary as given to the plaintiffs predecessor-in-title by the sale to him in 1899, that when the villages were purchased by the plaintiffs predecessor-in-title the tank bed of the Padmanabha Sagaram was restricted and that defendants 1 and 2, having abandoned the tank in 1878 and allowed it to continue in that state till 1913, when they not only restored the tank to its condition previous to 1878 but considerably raised the bund and constructed a surplus weir, lost all their rights to restore the tank to its original condition, thereby affecting the rights of the plaintiff as they existed in 1899, the year of the purchase.
5. The 1st defendant filed a written statement stating that the Padmanabha Sagaram tank is the joint property of himself and the 2nd defendant, that the 1st defendant has his own right to take wat
