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  • Abdur Rahim
  • Napier, JJ.
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  • Abdur Rahim
  • Napier, JJ.
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Smart Summary

Case Summary — Judgment delivered by Abdur Rahim, J. (with concurring remarks by Napier, J.)

Factual and Procedural Background

The plaintiffs-appellants sued to recover possession of two survey plots, Nos. 12-A and 12-B, and sought a declaration of rights together with an injunction restraining the defendants from obstructing the flow of water from a government channel called the Diguva Kalava to the lands in dispute. They obtained a decree for possession of the lands except for one acre. On appeal two principal questions were presented: (1) whether the plaintiffs were entitled to the injunction or at least to a declaration that they were entitled to use water from the Diguva channel to irrigate 12-A and 12-B, and (2) whether the lower appellate Court's judgment denying the plaintiffs that one acre was correct.

Relevant factual points stated in the opinion: - The Diguva channel takes its rise in the bed of the Pennar river. - The defendants' land is lower in elevation than the plaintiffs' land. - The channel is a Government channel and both parties hold raiyatwari (wet) lands. - The Government register shows Yerraguntla Kalava as the source of supply to the disputed land, while Diguva Channel is shown as the source of supply to the defendants' land. - The defendants were in long possession (about 20–30 years) of the disputed lands as lessees of the plaintiffs and during that period used water from the Diguva Channel to irrigate the lands. - The Yerraguntla Channel had been in disrepair for some time, which helps explain the use of Diguva water by the defendants.

Legal Issues Presented

  1. Whether the plaintiffs are entitled to an injunction restraining the defendants from interfering with the plaintiffs' use of water from the Diguva Channel, or at least to a declaratory decree that they are entitled to use that water to irrigate Survey Nos. 12-A and 12-B.
  2. Whether the lower appellate Court's refusal to grant the plaintiffs the one acre in Survey No. 12-B was correct (i.e., whether the defendants had acquired title to that acre by adverse possession).

Arguments of the Parties

Plaintiffs/Appellants' Arguments

  • The plaintiffs sought possession of the disputed lands (they had already obtained a decree excepting one acre) and asked for a declaration and an injunction to protect the flow of water from the Diguva Channel to their lands.
  • The plaintiffs' case (as presented to this Court) was not that they had established an easement by prescription; rather they argued that, given established practice over the last 20–30 years, the Government would have no objection to their using the Diguva Channel to irrigate 12-A and 12-B.
  • On appeal counsel for the appellants asked the Court to treat the threatened interference with the plaintiffs' possessory right to take water (as enjoyed) analogously to possessory rights in land and to grant a prohibitory injunction on that basis.
  • With respect to the one acre, the plaintiffs relied on acquisition of the land by darkhast (application) but the historical record contained a compromise in 1878 in which plaintiffs' claim to that acre was given up.

Defendants/Respondents' Arguments

  • The defendants had long been in possession (20–30 years) of the disputed lands, initially as lessees and later in their own right, and had routinely used the Diguva Channel water to irrigate those lands.
  • The defendants claimed a right to continue use of the Diguva Channel water and had threatened interference with the plaintiffs' asserted use; they relied on their long enjoyment and position of possession.
  • As to the one acre, the defendants relied on a document (marked Ex. 2) and on their longstanding possession (more than 12 years) in assertion of their own right; the plaintiffs challenged Ex. 2 as unregistered but the Court relied on evidence of adverse possession apart from Ex. 2.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kondapa Rajan Naidu v. Dwarakonda Suryanarayana Discussed in connection with the proposition that possessory rights might be recognised in relation to incorporeal hereditaments (water rights in a channel). The Court acknowledged the decision but did not decide its general correctness. The present facts were held to be distinguishable, and the Court declined to rest its decision on any broad proposition in Kondapa where the facts here differed (noting the defendants had been the long users of the water).
Narasappayya v. Ganapathy Rao Held that it is not accurate to speak of possessory rights in connection with incorporeal hereditaments; where a right to an easement has not ripened by prescription, mere actual enjoyment does not give a remedy against interference. The Court respectfully agreed with the ruling in Narasappayya and relied on its legal proposition that enjoyment alone, without prescription, does not create a possessory remedy against interference. The Court applied this reasoning in declining to treat the plaintiffs as having a possessory right in the Diguva Channel.

Court's Reasoning and Analysis

The Court's analysis proceeded along the following lines, stated in the opinion:

  1. Classification of the channel and parties' interests:
    • The channel in question (Diguva Kalava) is a Government channel; neither the plaintiffs nor the defendants own the channel.
    • Both parties hold wet raiyatwari lands and therefore have a right to a proper supply of water from the Government for irrigation, but that right is to a supply from Government and not to a proprietary right in any particular channel or to specific water in a specific channel.
  2. Failure to join necessary party:
    • The owner of the channel, the Secretary of State (i.e., the Government), was not made a party to the suit. Granting a declaration concerning rights to use the Government channel in the absence of the Government would effectively determine rights against the Government without the Government being represented.
  3. On the question of easement or possessory rights:
    • The plaintiffs did not plead or establish that they had acquired any easement by prescription. The lower Court had negatived such a claim.
    • Counsel for the plaintiffs relied on an analogy with possessory rights in land and cited authority (Kondapa), but the Court observed a more recent ruling (Narasappayya) that eschews speaking of possessory rights in incorporeal hereditaments where prescription has not ripened.
    • Even if Kondapa were read broadly, the present facts were distinguishable because it was the defendants (not the plaintiffs) who had been using the water for 20–30 years while in possession of the plaintiffs' lands.
    • The Court found there was no evidence that the plaintiffs had been in possession of the channel or had an easement with respect to it; the defendants' enjoyment of water under arrangements with the Government could not be transmuted into possession of the channel by the plaintiffs.
  4. On the remedy of injunction or declaratory relief:
    • The only ground for an injunction or declaration was that the defendants had threatened interference. There was no allegation of actual physical interference with the plaintiffs' land or with the Government channel.
    • Because the Government (owner of the channel) was not a party, a declaratory decree affecting use of the Government channel would be inappropriate; declaratory relief is discretionary and the facts did not justify it in these circumstances.
    • Accordingly, there was no legal authority to grant the prohibitory injunction sought by the plaintiffs against the defendants in respect of the Government channel.
  5. On the one acre in Survey No. 12-B:
    • Historical dispute (circa 1878) resulted in a compromise in which plaintiffs' claim to that acre was given up and the defendants remained in possession in their own right.
    • Although the defendants relied on a document (Ex. 2) said to be unregistered, the Court found independent evidence that the defendants had been in possession of that acre for more than 12 years in assertion of their own right, which sufficed to establish adverse possession.
  6. Concurring opinion (Napier, J.):
    • Napier, J. agreed with the result but disagreed with the lower appellate Court's particular reasoning that because plaintiffs could not claim against the Government the right to take water, the defendants were entitled to prevent plaintiffs using it. He emphasized that both plaintiffs and defendants have rights to customary supply from the Government for their wet raiyatwari lands, and that it is impossible to acquire an easement in water in a Government channel supplied by Government as part of its duty to irrigate classified wet lands.
    • He concurred that, in view of the Government not being a party and the absence of a possessory right in any particular water of the channel, no injunction should be granted.

Holding and Implications

APPEAL DISMISSED

Direct consequences and implications as stated in the opinion:

  • The plaintiffs are not entitled to the injunction they sought restraining the defendants from interfering with the flow or use of water from the Diguva Channel.
  • The plaintiffs are not entitled to a declaratory decree in respect of the Diguva Channel in the absence of the Secretary of State (the Government), and the Court exercised its discretion against granting such a declaration.
  • With respect to the one acre in Survey No. 12-B, the Court held that the defendants had acquired title by adverse possession (more than 12 years' possession in assertion of right) and the plaintiffs' claim to that acre fails.
  • The appeal (including the challenge to the one acre decision) was dismissed with costs; the memorandum of objections was also dismissed with costs.

Broader legal doctrine: The Court affirmed that rights of holders of wet raiyatwari lands are rights to customary supply of water from the Government and not proprietary rights in a Government channel; the opinion declined to create a possessory remedy against third parties for enjoyment of an incorporeal hereditament where prescription has not ripened and the Government (the channel owner) is not before the Court.

Show full summary ...

    Mahankali Lakshmiah v. Karnam Narayanappa

    The Judgment of the Court was delivered by

    Abdur Rahim, J.:— The plaintiffs-appellants sued to recover possession of two plots of land, 12A and 12B, and asked for a declaration of their rights and sought to restrain the defendants from causing obstruction to the flow of water from a channel called Diguva Kalava to the lands in dispute. They got a decree for possession of the lands excepting an acre. There are two questions in this appeal — one is whether they are entitled to an injunction as prayed for or at least to a declaration that they are entitled to the use of the water in the Diguva channel for irrigating the lands 12-A and 12-B and the other whether the judgment of the lower appellate Court with respect to one acre disallowed to them is right.

    2. The channel takes its rise in the bed of a river called Pennar.

    3. The land of the defendants is lower than the land of the plaintiffs. The channel is admittedly a Government channel and the lands of both parties are raiyatwari, It seems to be an admitted fact that the channel, which is shown in the Government Register as the source of supply to the land in dispute, is another channel called Yerraguntla Kalava and the Diguva Channel is shown in the register as the source of supply to the defendants' land. The defendants have been in possession of the disputed lands for a long time, about 30 years or so, as lessees of the plaintiffs. During that period they used the Diguva Channel for irrigating the lands in suit. It would also appear from the evidence that for sometime Yerraguntla Channel was in disrepair. That might explain the fact why the water of the Diguva Channel was used by the defendants for irrigation while they were in possession of the plaint lands. The channel being a Government channel, neither the plaintiffs nor the defendants have any right to it. Both of them holding wet raiyatwari lands are entitled to the supply of water from the Government for the irrigation of their lands. But it is for the Government to distribute the water in any way it thinks fit. That proposition has not been disputed before us and cannot be disputed having regard to the rulings on the subject. The case of the plaintiffs, as put before us, was not that they had acquired any right of easement by prescription, which the lower Court as negatived, but that Government, having regard to the practice that has obtained within the last 20 or 30 years, would have no objection to their using the Diguva Channel for irrigating Survey Nos. 12-A and 12-B. It is then contended that the defendants have no right to interfere with their use of the water of the Diguva Channel as they have threatened to do. It is not alleged that the defendants have done any thing on the plaintiffs' land to interfere with their enjoyment of the water, nor even that they have in any way as set interfered with the channel which belongs as already pointed out, to the Government.

    4. The only ground for asking for an injunction or for a declaration is that the defendants have threatened interference and claim the right to do so. The important point in this connexion is that the Secretary of State, who is the owner of the channel and against whom alone she plaintiffs are entitled to claim a supply of water, has not been made a party. The plaintiffs have not only not established what was their original case, that the channel itself belonged to them; but also failed to establish that they had acquired any easement or right to take water Iron this channel by prescription. They undoubtedly have a right to a proper supply of water to be secured by the Government. But that is quite a different thing from any right in the channel itself or to the use of the water of this particular channel.

    5. If, in a case of this nature, we were to give a declaration in favour of the plaintiffs in the absence of the Government, we should be really deciding the plaintiffs' right as against the Government without Government being represented in the suit. Indeed, Mr. Govindaraghava Aiyar for the appellants did not claim that they (appellants) were entitled to such a decree. What he says is that the plaintiffs must be held to be in possession of this right to take water, and as the possessory right has been threatened they are entitled, on the analogy of cases regarding possessory rights in land, to a prohibitory injunction. In this connexion our attention has been drawn to a ruling of Benson and Krishnaswami Aiyar, JJ., reported as Kondapa Rajan Naidu v. Dwarakonda Suryanarayana(1). That case has been considered in a recent decision of this Court reported as Narasappayya v. Ganapathy Rao(2), judgment in which was delivered by Miller and Sadasiva Aiyar, JJ. In that case, the learned Judges thought that the decision in Kondapa Rajan Naidu v. Dwarakonda Suryanarayana might be right on its facts, but they held after a careful and elaborate discussion of the law, that it was not quite accurate to speak of possessory rights in connexion with incorporeal hereditaments, and laid down that where a right to easement has not ripened by enjoyment for the prescribed period, the person who is in actual enjoyment would not have any remedy against any person interfering with such user and enjoyment. They were therefore not prepared to endorse a proposition to the contrary, if any such proposition was laid down in Kondapa Rajan Naidu v. Dwarakonda Suryanarayana. I respectfully agree with the ruling in Narasappayya v. Ganapathy Rao, but it is not necessary to pronounce upon the soundness of the view propounded in Kondapa Rajan Naidu v. Dwarakonda Suryanarayana as the facts of the present case are clearly distinguishable. Here it was the defendants that were, for 20 or 30 years before the suit, using the water of the channel in question for irrigating the land in dispute which was then in their possession.

    6. They had lands lower down which, strictly according to custom and practice should be irrigated by the Diguva Channel. We have no evidence here as 10 the arrangement by which the defendants obtained from the Government water from this channel for the irrigation of Survey Nos. 12A and 12-B. But there can be no doubt that whatever the nature of that arrangement, it was made to suit their own convenience. It is impossible to see how the enjoyment of water under such an arrangement by the defendants would amount in law to possession of the channel by the plaintiffs. Whether the proposition laid down in Kondapa Rajan Naidu v. Dwarakonda Suryanarayana is correct or not, has to be considered more fully when the point directly arises. In the present case the plaintiffs could not in any way be said to have been in possession of the channel or of any easement with reference to it. That being so, there is no authority for granting the injunction which they seek. The fact is, the plaintiffs have established no right as against anybody in the water of this particular channel, whatever rights they may have as against the Government for the supply of water to the land in dispute. Further I may add that so far as the question of declaration is concerned, it is a discretionary remedy and the facts of the case are certainly not such that we should be justified in granting a declaratory decree in the absence of the Secretary of State, the owner of the channel. On this ground therefore I shall hold that the Subordinate Judge was right in dismissing the plaintiffs' claim to an injunction, and that they are not entitled to any declaration with respect to this channel. As regards the one acre in Survey No. 12-B, it would appear that there was a dispute as to the right to this land sometime in 1878.

    7. The land was obtained on darkhast by the plaintiffs, while the defendants claim that they had no right to the patta and that they themselves were entitled to it. The matter was compromised and the claim of the plaintiffs, to that land was given up. The defendants remained in possession in their own right. The question really is whether the defendants have not acquired title to the land by adverse possession. Mr. Govindaraghava Aiyar contends that, according to the defendants, they acquired title to ‘the land under a document which has been marke as Ex. 2 in the case and he says that, as it is unregistered, it cannot give any right in the land to the defendant. But on the question of adverse possession, we have evidence apart from Ex. 2 that the defendants have been in possession of the land for more than 12 years in assertion of their own right and that is sufficient to dispose of the question. The appeal fails and must be dismissed with costs. The memorandum of objections is also dismissed with costs.

    Napier, J.:— I agree and would only add a few words. The lower Appellate-Court has refused the injunction asked for on grounds which my learned brother and myself think are not correct, and it is for that reason that I wish to state what I conceive to be the correct view to take. The lower appellate Court has held that as the plaintiffs could not claim against the Government the right to take, water from this channel therefore the defendants were entitled to prevent the plaintiffs taking it. That statement of law is to be found at p. 35 of the judgment, where the learned Judge says,

    “the defendants who hold land irrigated by the channel are entitled to prevent the plaintiffs from using the water, to which they have no right.”

    8. This statement of law is, in my opinion, entirely unsound and I agree with my learned brother in holding that the right both of the plaintiffs and of the defendants to water in respect of the raiyatwari wet land which they hold are, as has been laid down by this Court time after time, the rights to their customary supply by whatever means the Government chose to put the water on their land. But it appears that, in the lower Courts, the claim by the plaintiffs for an injunction was put on the ground that they had acquired some sort of easement, probably by the user of the water by the defendants for 20 years when they were the plaintiffs' tenants. That contention I agree with the lower Appellate Court, is entirely unsound. It is impossible for a person to acquire an easement in water in a Government channel when that water has been supplied by Government for the purpose of irrigating land and in fulfilment of the duty cast upon them to supply water to lands which they classify as wet. Therefore no easement can possibly be acquired. Mr. Govindadraghava Aiyar in this Court has put his case on an entirely different footing and has asked us to give an injunction limited to the time and period during which the Government is prepared to give the necessary water for this land down the channel. The answer to that claim is to be found in the judgment which has been delivered by my learned brother, in which he points out that there is no possession here and that there is no specific right in particular water in this particular channel; and in view of the fact that the Government is not a party to the suit it would be inadvisable to give any injunction which would necessarily be based on a declaration of right when such declaration of right can only be operative as long as the Government thinks it advisable to supply water by this channel. I therefore entirely agree that this is not a case in which an injunction should be granted and, on this ground, I would uphold the lower appellate Court's judgment. On the other points, I am in entire concurrence with the view expressed by my learned brother. The appeal is dismissed with costs.

    S.N/R.K

    9. Appeal dismissed.

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    Comments

    Mahankali Lakshmiah v. Karnam Narayanappa
    (Jan 11, 1918)