(KATIKAVANI) VENKATARAMANAYYA Vs. SECRETARY OF STATE

JUDGEMENT

(1.) The only question in this appeal is whether the plaintiff's claim is barred by reason of the decision in O. S. 119 of 1914. The learned District Judge has held that the plaintiff's suit is barred by res judicata by reason of the decision in the previous suit. It is urged by Mr. Venkatarayaliah that the decision in O. S. 119 of 1914 does not restrict the right to 163-93 acres and that even if it be held to have restricted the right to that extent, it was unnecessary for the decision in that case to have so restricted it and therefore such decision cannot operate as res judicata in the subsequent suit. In the plaint in the previous suit the plaintiffs claimed the right to irrigate all their wet lands, whatever the extent thereof might be (vide para. 7 of the plaint) and prayed that their right to the use of the Ogeru water free of charge for the irrigation of all their wet lands, whatever the extent, thereof may be, by means of the irrigation works now maintained by them, may be established. In the written statement filed by the defendant the right to irrigate free of charge was conceded only to the extent of 54 acres and the right to irrigate all the lands in the possession of the plaintiffs was denied. Issue 1 was raised on this contention and it is as follows: Whether the plaintiffs are entitled by virtue of grant or prescription, or both, to the water of Ogeru Vagu, free of water tax, for all their lands in the suit village without reference to the extent or the kind of crop raised, or for only 54 acres of wet land referred to in the written statement.

(2.) The learned Subordinate Judge, after discussing the evidence gave his finding, in these terms: . . . my finding on issue 1 is that the plaintiffs are entitled to take the Ogeru water free of water tax by virtue of the grant and by prescription to 163 odd acres which have been the actual wet land area all through.

(3.) In the decree it was stated: this Court doth merely declare the plaintiff's right to use the Ogeru waters free of tax by means of irrigation works maintained by them for cultivating their lands which are stated to be acres 163-93 cents. according to the present measurement.