The importance of proper notice under S. 80, Criminal P.C. for maintainability of a suit against the Government, and the requirement to establish the right to irrigate lands and erect a dam for water usage.

JUDGMENT :- Plaintiffs ace the appellants is this second appeal. They own only about 1/3rd of the lands in Inam village called Agulpada. Defendants 1 to 4 are owners of lands is the neighbouring village of Gopinathpar which also is an Inam village. They have been sued as representing all the Inamdars of that village. Defendant 5 is the Government of Orissa represented by the Collector of Ganjam. The teat of the lands admittedly belong to the Dharakote Estate. The dispute relates to the right of the plaintiffs to irrigate their lands from the waters of a channel known as Kochianala by raising a cross dam on it. This Nala runs through the two villages of Gopinathpar and Agulpada. According to the evidence of one of the plaintiffs witnesses, P.W. 3, Kochianala starts in Government villages and goes to Government villages, but passes through these two Inam villages. The case of the plaintiffs is that this Kochianala is the irrigation source of the wet lands in the Inam, village of Agulpada; that the irrigation rights were being exercised by patting up a cross dam and that there used to be a pucca masonry dam at a specified place in the channel for diverting water to their village; that the masonry dam was constructed at their cost; and that the water was being taken through a branch supply channel which is locally known as Jhala. The pucca masonry dam is not admittedly now in existence having broken down some years ago and it is the plaintiffs case that since then they had been putting up a temporary earthen dam lower down the site of the pucca dam whenever water was required for them. It is their case that in 1940 when as per their previous practice, they put an earthen dam defendants 1 and 4 and others interfered and that at their instance, the Revenue Inspector purporting to act on behalf of the Government, got the dam destroyed. They allege that the Government have no manner of right to restrict or regulate the water supply from this channel and the Revenue Inspector on behalf of the Government had no right to interfere with their putting up the cross dam for enjoying the rights of irrigation. The defendants deny that Kochianala is the irrigation source for Agulpada. They deny further that the plaintiffs have any right to put up a dam across the Nala. While they admit the existence of the old pucca masonry dam some years ago and the existences of the Jhala taking off from the channel towards the plaintiffs land, they allege that the dam was for the purpose of storing water for the use of men and cattle of Gopinathpur village and that the Jhala was only a surplus channel to drain off the excess water that may be flowing in the Nala and not a supply channel to Agulpada and that neither the dam nor the Jhala were ever used for irrigating the lands of Agulpada. In addition to this common defence, an objection was taken on behalf of the Government, defendant 5, that there was no proper notice for the present suit under S. 80, Criminal P.C. and that accordingly the suit was not maintainable.

2. Both the Courts below have dismissed the plaintiff suit and hence the second appeal by the plaintiffs.

3. The questions that arose on the respective contentions of the parties were : (1) Whether the suit is not maintainable on account of want of proper notice to the Government ; (2) Whether the plaintiffs as owning Inam lands in Agulpada village were entitled to irrigate their lands from Kochianala; (3) Whether they have a right to put up a cross dam in the Nala for the purpose; (4) Whether the plaintiffs have established the right to take water by putting up the particular dam pleaded, viz., a pucca masonry dam at the site of the old dam.

4. On the first point, both the Courts below have agreed in holding that there was no proper notice and that the suit is not maintainable. On the second point, which was covered by issue No. 1. the learned Munsif gave a finding in favour of the plaintiffs; but when answering the third point covered by issue No