RAJAH SIR ANNAMALAI CHETTIAR BY HIS AUTHORISED AGENT V. ATMANABHA AYYAR Vs. TIRUMALAI TIRUPATHI DEVASTHANAM COMMITTEE BY ITS COMMISSIONER AND ORS.
HIGH COURT OF MADRAS
Rajah Sir Annamalai Chettiar By His Authorised Agent V. Atmanabha Ayyar
Tirumalai Tirupathi Devasthanam Committee By Its Commissioner And Ors.
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(1.) IN this second appeal preferred by the first defendant, we are concerned with a channel called Punyam kasam kalva. It has its source in a river -bed in a village called Samanthavada, passes through the lands of Samanthavada and Aravasipattada, and flows into the limits of Punyam village where it irrigates Punyam lands. If is common ground that it is an artificial channel. It is also agreed that every drop of water in the channel is intended for the benefit of the proprietor and the ryots of Punyam and that the people of Samanthavada and Aravasipattada have no rights whatever to the water flowing in this channel. Originally the Rajah of Karvetnagar was the owner of the aforesaid three villages. He mortgaged them to different persons on various dates; and ultimately Aravasi pattada and Samanthavada were purchased by the Tirumalai and Tirupathi Devasthanam, while Punyarn was purchased by the first defendant. After this purr chase, the first defendant laid claim to the trees standing on the bunds of the channel within the limits of the village of Aravasipattada and auctioned them. They were also cut and removed despite the protests by the Devasthanam subordinates. Hence this suit for a declaration that the Devasthanam is solely entitled to the bed and the bunds of the Punyam kasam kalva so far as it lies in the village of Aravasipattada and for an injunction restraining the defendants from interfering with the bunds and the bed and the trees.
(2.) THE first defendant contended that the channel inclusive of the bed and the bunds even within the limits of the suit village belonged to him as the proprietor of Punyam village, for whose exclusive benefit the channel was dug and exists. He also relied on adverse possession.
(3.) THE District Munsiff decreed the plaintiff's suit holding that the first defendant had no ownership of the bed or the bunds of the channel in the suit villages pf Aravasipattada and Samanthavada. While the plaintiff had not been able to show even a single act of ownership in regard to the trees standing on the banks of the channel, the first defendant had not been able to establish the adverse possession set up by him. This decree was confirmed on appeal by the Subordinate Judge of Ghittoor.
The question whether the first defendant had acquired title by adverse possession is concluded by concurrent findings of fact and is not open to challenge in second appeal. So Mr. V. Ramaswami Aiyar, the learned advocate for the appellant argued only the question of title to the channel and urged that when originally the Rajah of Karvetnagar as the proprietor of the three villages constructed this channel to take the spring water from its source to the Punyam lands, he must be deemed to have done so as the owner of the bed and the bunds on either side and not merely as a person who wanted to take the water over another man's lands to his own property further down. In this connection he referred to some text -books and decisions as to what was meant by a water -course and he urged that the rights with reference to an artificial water -course like the one in the present case are fundamentally different from the rights with reference to a natural water -course. As pointed out by Angell in his standard treatise on water courses, every watercourse consists no doubt of the bed, the bank and the water. This however does not mean that a person who has got the right to take the water along the water course is necessarily the owner of the bed or the bank or bund. The bed and the bund may belong to one person, the water flowing over the bed and within the banks may be the subject of enjoyment by another. This is pointed out by Angell himself at page 9 of the seventh edition of his work, where we find the following observations: The proprietor of adjoining lands, who is also the proprietor of the bed of a river, may grant and convey the bed of the river separate from the land which bounds it. He may convey his estate in the bed of the river without his upland or his upland without the bed of the river and such conveyances will be good and available; or he may convey a part of his estate in the bed of the river and may divide it in any form or by any lines which he may think proper. But a grant of a stream of water or watercourse, eo nomine, will not pass the land over which the water runs.
In the leading case of Fishmonger's Company, (1876) 1 A.C. 662. Lord Selborne observes that the right of a riparian owner to the use of the stream does not depend on the ownership of the soil of the stream and the connection where it exists of property on the bank with property in the bed of the stream, depends not upon nature but on grant or presumption of law and that the title to the soil constituting the bed of the river does not carry with it any exclusive right of property in the running water of the stream.;
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