1. This appeal is against the decision of the District Judge of Chingleput. The plaintiff, the appellant, is a raiyatwari wet landholder in the village of Naraiambakkam, Chingleput District. His lands are along the foreshore of: the Government irrigation tank called Chitteri in Malayankulam. They are situated at such a level that they are liable to submersion and are submerged for sometime whenever the Malayankulam tank is up to its full tank level. The plaintiff sues the Secretary of State and pattadars under the tank for a declaration that they have no right to submerge the lands and for an injunction to restrain them from doing so. Both the lower Courts dismissed the suit and the plaintiff appeals.
2. The Chitteri tank is supplied by a channel from the Cheyyar river which enters at the north-west of the tank at a point D in the plaint plan. On the south of the tank is a cross-bund separating it from the Periyeri of the same village. In the cross-bund is an opening or sluice at the point X. The Chitteri itself has no separate discharge weir; the Periyeri has a discharge weir at the point E in the south-east. At points A and C in the supply channel of the Chitteri are calingulas. Both tanks are supplied through the channel from the Cheyyar. The case with which the plaintiff came into Court was as follows: Both tanks are filled by the supply channel to the level of the calingulas at A and C, and the sluice at X is then closed. This, he admits, has always resulted in some of the lands on the foreshore of the Chitteri being submerged, but lately, he says, the Malayankulam raiyats have been trying to increase the storage of both tanks and thereby have caused an increase in the submerged area. Their first attempt was to raise the level of the calingula at E, but that however did not increase the submerged area because the sluice X was at the same time closed and the full tank level of Chitteri was not disturbed. The next move was to do away with the shutter at X and to increase the bund of the Chitteri at the inlet D in length and height. A complaint to the Board resulted in orders to the Public Works Department to restore the bunds to its original state. All these attempts to store more water therefore failed. Next an attempt was made to raise the level of the calingulas at A and C. A complaint to the Collector defeated this plan. Finally the Public Works Department put up a screw shutter at D which had the effect of bringing the full tank level of the Chitteri up to that of the Periyeri, and it is this which has resulted in the increase of the submerged area, and this is the cause of action, which dates from about 1912.
3. The main contention of the plaintiff in the lower Courts was that the Periyeri and the Chitteri are really two self-contained tanks, the Periyeri being supplied first from the Chitteri up to the level of the calingulas A and C and then shut off by closing the sluice at X, and then filled up to the level of the weir at E by surface drainage, while the Chitteri remained at the level of A and C, that that level has been recently interfered with by this cross-bund and the shutter at D which prevents the calingulas at A and C acting. I find difficulty in understanding how the shutter at D can by any process raise the full tank level of the Chitteri above the level of the calingulas at A and C. If the calingulas at A and C are acting, the full tank level cannot go above their level. The findings of fact in which both the lower Courts concur are: first, that as the plaintiff admits, there has always been a seasonal submersion of the foreshore lands of the Chitteri, Ex. X indicates that that has been so even so far back as 1832; second that the sluice at X has not been closed within the memory of man and therefore the level of the two tanks has always been the same, and that the sluice, so far from being a method of keeping the tanks separate, was really a means of uniting thorn since the cross-bund was necessary for a village passage way; third, that the full tank level of both is therefore determined by the calingula at E, constructed in 1870 and never altered, the construction of which did not alter existing conditions, since, according to the plaintiff, it did not increase the submerged area; fourth, that the full tank level was always maintained by calingula E, and to prevent its being lowered by the calingulas at A and C, which are at a lower level, plank shutters had all along been placed in position at D and the new screw shutter complained of at D has merely replaced the customary planks.
4. These findings are in effect that the plaintiff has failed to prove that there has been any interference with the mamul conditions and state of these tanks, and, in particular, any increase in the full tank level within the memory of man, and that his case that the substitution of screw shutters at D has caused an increase of the submerged area is not established. As regards the bund at the inlet D there has apparently always been one (see Ex. 3), and the plaintiff has made no attempt to prove that this bund is now higher or longer than it used to be. An extension was no doubt found by the revenue authorities to exist in 1904 (see Ex. 5), but the plaintiff has made no attempt to show that the extension is still in existence. It was a simple matter for the plaintiff to have elicited such a point from the P. W. D. Engineer when he was in the box, but he abstained from questioning him about it. Hence the plaint case that there has been any definite interference, with the mamul conditions by any act of the defendants in or about 1912 has completely failed. On these findings of fact no question of law prima facie arises for decision.
5. It has been argued however that whatever be the mamool conditions under which the raiyats have been carrying on their wet cultivation, the plaintiff has a general Common law right to prevent his land being submerged by the action of Government or of anyone else, and that no one has a right to flood the land of another with water or to store water on it for his own subsequent use. In the lower appellate Court this point was argued by the plaintiff as if the Government were contending that they had a prescriptive right to submerge his lands. Whether Government really put forward that argument does not appear from the judgment. The lower appellate Court repelled the contention, holding that the plaintiff or his predecessors had never repudiated unequivocally Government's rights to submerge, and had in fact admitted that some degree of submersion had been going on for nearly a hundred years. The exact degree of submersion need not trouble us since the plaintiff's land is the first to be submerged, and, if any land at all was being submerged during the last hundred years, it was his.
6. The contention that Government cannot acquire by prescription a right to flood another man's land was not therefore directly answered by the lower Court, and did not require to be answered. The sum and substance of its answer to the contention was that Government has a right to maintain the status quo, the long established customary method of storing water in its tanks; and that proposition, I think, is undoubtedly correct. There is no question here of any invasion of Common law rights. In fact the whole system of tank irrigation and the rights of wet raiyats to water for irrigation in this country has no counterpart in England and no place in the English Common law; the law on such matters here is determined by custom and customary right. And it will be generally found that the system is so selfcontained that any attempt to alter it on behalf of an individual raiyat who may have a private grievance is almost certain to react; to the detriment of the body of wet raiyats as a whole including himself. Submersion of lands on the foreshore of a tank when it is at its full tank level is no uncommon occurrence and is a feature of the recognized irrigation system. Raiyats whose lands are submerged have suffered it in the past philosophically, recognizing probably that they themselves would suffer if the supply to their own tank be out down to avoid submersion of the lands on its foreshore.
7. The whole system is one of give-and-take, and, if it were to be held as a matter of law that each raiyat whose lands are submerged now when tanks are at their full tank level can compel Government to reduce the supply of water in all these tanks, the whole body of wet landowners including those whose lands are now submerged would suffer. That the law in matters of this kind is governed by customary right is no novel proposition. There is in this country a body of customary rights, a result of social, political and economic forces which are in various directions recognized as having the force of law, although in practice they trench on the abstract rights of individuals. For example, a right of free pasturage over the land of another, a right to graze cattle on Government poramboke, a right to build a dam across a river, a right to bathe in a tank, a right to use a well, a right of way through or a right to restrict entrance to certain streets or fields. I take it then to be the law that when such submergence is a matter of the customary conditions of the locality when the suit tank is at its full tank level and is not the result of a direct and proved interference with these customary conditions, no cause of action would arise. The raiyat has suffered no damage because he is holding his land under the customary conditions under which it has always been hold and which are patent to any one who is acquainted with the land and its locality.
8. Certain cases have been cited as enunciating the contrary of this proposition. J. D. Robinson v. Ayya Krishnamachariar [1871] 7 M.H.C.R. 37 is the earliest. In that case the parties were in the converse position to here. The plaintiffs were the raiyats under the tank, defendants the foreshore owners, and the plea was that the foreshore lands were only to be cultivated when the tank was dry, and that the defendants in order to cultivate their lands while the tank was full built a bund to keep the water off their fields and thus diverted the water in another direction so as to prevent it flowing as usual into the plaintiff's tank. The plaintiffs sued for a restoration of the status quo ante. Here there was an interference with the existing mamool conditions under which the irrigation and cultivation of these lands was being carried on. The Civil Judge decreed for the restoration of the status quo. The High Court held that the right claimed by the plaintiffs, namely, the right to store water for their use on another's land was neither a right of contract nor a right of prescription. The decision proceeded on the short ground that a man is at liberty to deal as he likes with water on his lands and no one can compel him to retain it there. That report is authority only for the proposition that the plaintiff here can take such steps as he chooses to get rid of the water standing on his own land. It is no authority for the claim now put forward that the plaintiff is entitled to have an injunction to restrain Government from filling the Chitteri tank to its customary full tank level and to compel them to reduce the customary full tank level.
9. The case, Narayana Reddi v. Venkatachariar [1901] 24 Mad. 202, is on all fours with the present case and a strong authority in favour of the defendants. There Robinson v. Ayya Krishnamaehariar [1871] 7 M.H.C.R. 37 was considered and was held to decide only that the parties on whose land water was stored could not be prohibited from draining it off. Venkatachalam Chettiar v. Zamindar of Sivaganga [1904] 27 Mad. 409 does not seem to me in point. That judgment merely maintained the status quo ante, and it was held that the plaintiffs were not entitled to restrain the defendants from preventing the plaintiff raising a bund which would have the effect of throwing more water than was customary from his land on to theirs.
10. The case Sankaravadivelu Pillai v. Secy. of State [1905] 28 Mad. 72 is another case of direct interference with existing customary rights. Government having newly constructed a calingula which had the effect of interfering with the mamool conditions and newly flooding the plaintiffs' lands. I do not think that this decision can be pressed to lay down the proposition that the raiyats of all submerged lands have a Common law right to compel Government to lower the full tank level all over the country until submersion ceases.
11. In Raghavulu Naidu v. Secy of State A.I.R. 1927 Mad. 144 the raiyats in a Government tank claimed a right to raise the calingula in spite of the fact that it resulted in submersion of the lands on the foreshore, a clear claim to interfere with existing customary rights. The learned Judge clearly held that there was no evidence of a customary right to raise the calingula. In the present case I am clear that on the findings of fact by the lower Courts about the mamool state of affairs from time immemorial, there being no reliable evidence that the state of affairs for the last fifty years is anything different from that since 1870 onwards or that the extent of submersion, found to be present in 1832, has increased, the tank has always been at the present full tank level and the plaintiff's land has always suffered some submersion. The plaintiff has not satisfied me that he has any Common law right to have the mamool state of affairs disturbed. I can therefore see no reason to interfere in this appeal and dismiss it with costs, two sets, one for Government and one for the raiyats.