1930 Supreme(Mad) 231

Madras High Court
Wallace
Malyam Patel Basavana Gowd (Dead)
Versus
Lakka Narayana Reddi And Anr.
Decided On : 23 October, 1930

A ryotwari wet landholder has a legal right to have his usual supply of water furnished by the channel implicitly or explicitly recognised by Government as the usual method of supply for the time being, until and unless an equally efficient supply and method of supply are adopted. If that customary supply and manner of supply according to this contractual or proprietary right has been interfered with, not by Government but by private parties, such interference, prima facie, is an invasion of the plaintiffs rights and will give rise to a civil cause of action.

Headnote:

WATER RIGHTS - RYOTWARI LANDHOLDERS - RIGHT TO WATER - RIGHT TO TAKE WATER FROM ACCUSTOMED OR RECOGNISED SOURCE OF SUPPLY - INTERFERENCE BY THIRD PARTIES - RIGHT TO INJUNCTION - SUB-SURFACE WATER IN RIVER-BED - OWNERSHIP - DOCTRINE OF PERCOLATING WATER - APPLICABILITY TO INDIAN RIVERS - MODIFICATIONS OF ENGLISH DOCTRINES RELATING TO WATER TO SUIT INDIAN CONDITIONS.

Fact of the Case:

Plaintiff, as representative ryot of Malyam village, sued defendants 1 and 2, as representative ryots of Kanekal village, for a declaration of the right of the plaintiffs village to take water to its fields from the point A in the Hagari river, shown on the plan, Ex. E-l, without any interference from the defendants, and for consequential injunction to ensure that right. Both villages lie on opposite sides of the Hagari river, Malyam on the east and Kanekal on the west. Both villages have registered wet land irrigated by the river by channels therefrom which are recognised as their irrigation source. When there is water flowing in the river, each village gets its supply direct from channels taken off from the river banks. When the surface flow in the river ceases the ryots have been in the habit of tapping the sub-soil flow and leading it to the main channel. The Malyam ryots claim that it has been their custom and right to tap the riverbed sub-soil water at the point A, and the custom of the Kanekal ryots to tap that water at the point D, and the plaint asserts that in January, 1924, the Kanekal ryots came some 500 yards further upstream than usual to the point K, close to the point A, and by starting their channel there drew off from the Malyam channel a considerable portion of its former supply, so that its normal supply was seriously diminished and the wet crops of Malyam suffered in consequence. The suit was filed, therefore, in order to prevent the Kanekal ryots from coming higher upstream than the point D.

Finding of the Court:

The Court found that the usual custom was, as contended for by the plaintiff, namely, that the Malyam channel took off at the point A and the Kanekal channel at D, and that the Kanekal ryots in 1924 broke the usual custom by coming up to the point K. But it held that the plaintiff had no legal right to compel the Kanekal ryots to remain at the point D, and further that the plaintiff had failed to prove any damage in consequence of the defendants action, and it dismissed the suit.

Issues: 1. Whether the plaintiff has a legal right to compel the Kanekal ryots to remain at the point D? 2. Whether the plaintiff has failed to prove any damage in consequence of the defendants action?

Ratio Decidendi: 1. The general law of this Presidency governing the rights to water as against Government of a ryotwari wet landholder is well settled and admits of no doubt. The ryot is entitled to be given such supply of water as is necessary and sufficient for the irrigation of his registered wet fields. He must accept that supply from the irrigation source approved by Government as the source of supply for his fields and he must accept the method or machinery by which Government supplies that water. He has no right to insist that his supply shall come from any particular source or any other source than that recognised by Government or that it shall come by any particular channel, nor can he prescribe against Government for such right by user otherwise for any length of time. It follows that between him and Government there is something in the nature of a contractual obligation under which Government undertakes to regulate, distribute and furnish to him his necessary supply in the manner authorised by it as the proper and usual manner until and unless Government has provided him with another equally efficient. 2. The plaintiff founded his plaint which, be it remembered, was framed before Government was made a party, on a claim that the Malyam ryots had by their long user and open enjoyment acquired a prescriptive right to take to their lands from the point A all the water which would naturally come to A without interruption by any one else, and that that right had been infringed by the defendants action in moving the head of their channel from D to K. It is clear from what has been said that no such prescriptive right can be acquired. One ryot cannot prescribe against another or against Government for supply by any one particular channel. His user of a particular channel is in no sense adverse to the user by another of another channel, since each uses it by authorisation of Government. Nor is it an easement by which he is conveying property of his own over a servient tenement. The plea of easement was in fact abandoned in the Lower Court. The most that the plaintiff can claim against defendants is that he and the other ryots of Malyam village have a legal right, contractual or proprietary, to have their usual supply furnished by the channel implicitly or explicitly recognised by Government as the usual method of supply for the time being, until and unless an equally efficient supply and method of supply are adopted. But if that customary supply and manner of supply according to this contractual or proprietary right has been interfered with, not by Government but by private parties, such interference, prima facie, is an invasion of the plaintiffs rights and will give rise to a civil cause of action. 3. The position is much as if the river were a large well or a subterranean pond from which authorised channels took off at various recognised points for irrigating various wet areas. I am not pointed to any authority which has laid down that, if a ryot entitled to water in such an irrigation source abandons his customary channel and opens another in such a way as to cause loss or likelihood of loss of supply to another ryot in his customary channel, the latter has no action against the offending ryot.

Final Decision: Appeal allowed.