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1953 Supreme(Nagpur) 88
HIGH COURT OF NAGPUR
Mangalmurti, Deo
MT MANTURABAI AND ORS – Appellant
Versus
ITHAL CHIMAN – Respondent
Letters Patent Appeal No. 31 of 1948
Decided on : 21-08-1953
A S Bobde, H N Choudhary, M R Bobde, S N Sil, Y P Verma, Advocates
An easement right to receive water from another's land cannot be acquired by prescription unless the water flows in a defined stream.
Headnote:
EASEMENTS - RIGHT TO WATER - ACQUISITION BY PRESCRIPTION - PERCOLATING WATER - EASEMENT RIGHT OVER PERCOLATING WATER - CONDITIONS - ARTIFICIAL WATERCOURSE - RIGHT TO DISCHARGE SURPLUS WATER - RECIPROCAL RIGHT OF SERVIENT OWNER - ABATEMENT OF APPEAL - VESTING OF TANKS IN STATE - EFFECT ON IRRIGATION RIGHTS.
Fact of the Case:
Plaintiff and Defendants were co-sharers in mouza Khairi. Plaintiff owned tank No. 134, irrigated by channel AB from tank No. 319, a 'shamlat' tank constructed by the Government for the village. Defendants had a right to irrigate their fields from 'mogha' (sluice) P of tank No. 319. Plaintiff claimed a right to receive water from tank No. 319 through Defendants' fields to tank No. 134, alleging that the Defendants had closed the outlet at K to prevent the filling of tank No. 134 and diverted water to their fields. The lower appellate Court dismissed the claim, holding that the Plaintiff had not acquired an easement right and that the Defendants had acquired a right by prescription to discharge surplus water into tank No. 134. Hidayatullah J. reversed the decree, holding that the Plaintiff had acquired a prescriptive easement.
Finding of the Court:
The Court held that the Plaintiff had failed to prove his claim to a prescriptive easement to receive water from tank No. 319 through the Defendants' fields to tank No. 134. The Court also held that the Defendants had acquired a right by prescription to discharge surplus water from their fields into tank No. 134.
Issues: 1. Whether the Plaintiff had acquired a prescriptive easement to receive water from tank No. 319 through the Defendants' fields to tank No. 134? 2. Whether the Defendants had acquired a right by prescription to discharge surplus water from their fields into tank No. 134?
Ratio Decidendi: 1. The Court held that the Plaintiff had failed to prove his claim to a prescriptive easement because: a. The alleged right was not recorded in the 'wajib-ul-arz' of the current settlement. b. The Plaintiff had not been able to show any documentary evidence in support of his claim. c. The oral evidence was not sufficient to establish the claim. 2. The Court held that the Defendants had acquired a right by prescription to discharge surplus water from their fields into tank No. 134 because: a. The Defendants had been discharging the surplus water for a long period of time. b. The Plaintiff had not objected to the discharge of the water. c. The discharge of the water was beneficial to the Plaintiff's land.
Final Decision: The Court set aside the judgment of Hidayatullah J. and restored the decree of the lower appellate Court, dismissing the Plaintiff's claim.
1. This is Defendant's appeal under Clause 10 of the Letters Patent against the judgment delivered by Hidayatullah J. in Second Appeal No. 440 of 1944, reversing the decree of the Additional District Judge and restoring that of the trial Court.
2. The facts material for this appeal, as admitted or found, are:
Plaintiff and Defendants were co-sharers in mouza Khairi at all material times. Plaintiff is the owner of tank No. 134 from which he irrigates his 'sir' fields Nos. 88-90-91 through the channel AB. This right, recorded in the 'wajib-ul-arz' of the village is not disputed by thje Defendants. Khasra No. 319 is the tank constructed by Government in the famine period for the benefit of the village as a whole, and is recorded 'shamlat' in the name of the proprietors of the mahal. It is not disputed that the Defendants have a right of irrigation from 'mogha' (sluice) P of this tank for their fields khasra Nos. 135 and 136 which are immediately below the tank. Khasra Nos. 138, 132, Khasra No. 133, which touches the embankment of khasra No. 154, and khasra Nos. 126, 125, 124 and 123 are also irrigated from this tank.
These fields are at a lower level than khasra No. 135. If the tank khasra No. 134 is full and the cut K is kept open, the water floods back into khasra No. 135 and passes through the other khasra number of the Defendants to the south of khasra No. 134. The references are to the map annexed to the decree. Khasra No. 138 is also irrigated from khasra No. 134 (Exhibit P-3V. These are all 'dhan-bandis.
3. According to the plaint, the water of tank khasra No. 319, flowing through P goes into khasra Nos. 135 and 136 and after passing through these numbers it (i.e. water of the tank) fills the tank khasra No. 134 through the opening at K in the embankment of that tank. From khasra No. 134 Plaintiff irrigates khasra Nos. 88-90-91. It is further stated: according to the wajib-ul-arz the Plaintiff's right of irrigation has always been there from ever.
The plaint was amended by adding: (Original in Hindi) Plaintiff has the right to fill tank No. 134 with water collected in field No. 135 from pizra (percolation) and from 'mogha' P of 319 and has the right of irrigation of the said area of the Plaintiff from 134 by (water) passing through the nali AB. (This right is) according to wazib-ul-arz and on account of taking water for ever and on account of the Plaintiff being joint owner of tank 319.
The official translation of this passage was not quite accurate. We have therefore translated it. Pizra water is the water which percolates.
4. The Plaintiff's complaint is that on or about the 21st October 1941 the Defendants closed the outlet at K in order to prevent the filling of the tank No. 134 and after digging a deep channel from T to Th along the southern embankment of the tank No. 134, conducted away the water that was pooled in No. 136 and irrigated their fields Nos. 133, 126, 135/3, 125, 124, 123, 92 and 93 and moreover sowed Lakhodi and linseed also.
It was alleged that in consequence of this wrongful act of the Defendants, the Plaintiff suffered loss of his paddy crop.
5. The lower appellate Court held that the mere fact that the Plaintiff was the co-owner of tank No. 319 did not give him a right to have the water from khasra No. 319 brought to his tank No. 134 through the Defendant's fields Nos. 135 and 136' through the opening at K and that he had to establish that he had acquired it as an easement. The lower appellate Court held that this right was not recorded in the 'wajib-ul-arz' and that the Plaintiff had failed to prove acquisition of an easement. It was further held that the Defendants had acquired by prescription a right to discharge the surplus water of khasra Nos. 135 and 136 into khasra No. 134 through K, and that the fact that the water so received by the servient owner was beneficial to him did not give him a right to have it discharged into khasra, No. 134. Reliance was placed on - Chakradhar Singh v. Tikaram Sa
