Decided on November 24,1967



- (1.) THIS is an appeal filed by the defendant from a decree in a suit instituted by the plaintiffs for an injunction to restrain the defendant from interfering with the plaintiffs' right to impound water from a stream described in plaint'b' schedule, by means of a dam put up by them, and to take the same through the artificial channel alleged to be in their possession to their lands described in the plaint 'a' schedule.
(2.) THE allegations in the plaint were as follows: THE plaint A schedule property belongs to the plaintiffs and they are in possession of it. THEre is a natural stream, described in the plaint B schedule, which takes its source from the hills on the south and flows along the east and then along the northern boundary of the A schedule property. About 11/2 furlongs from A schedule property plaintiffs' predecessors-in-interest had, about 50 years ago, put up an earthern dam across the stream to impound water. THEir predecessors-in-interest were taking the water of the stream so impounded at the dam through an artificial chal dug in the properties lying to the south and east of the plaint 'a' schedule property to that property from time immemorial and as of right. THE properties through which the chal runs were originally in the possession of the Kovilagam, the owner of these properties, and now they are in the possession of the defendant, and the chal was constructed when the properties were in the possession of the Kovilagam. THE defendant who came into possession recently of those properties is attempting to improve those lands and for that purpose is making efforts to put up a bund across the stream higher up the dam to tap the water of the stream for the use of his lands. According to the plaintiffs this is an interference with their legal right and therefore, they have filed the suit. The contention of the defendant was that the stream belonged to him> that it was for the safety and security of the land in his possession that the dam mentioned in the plaint was constructed, that the chal runs through the properties in his possession, that the plaintiffs are taking water under the permission granted to them without prejudice to his right to take the water to his own lands, that he being in possession of the lands abutting the stream has the rights of a riparian owner and has the natural right to take water from the stream, that A schedule property lies away from the stream, that the dam mentioned in the plaint does not impound the water of the stream but is only a construction for the security of his lands, that with the water flowing from the stream through the chal he is only making bonafide attempts to cultivate his lands, and that the plaintiffs have no right to take the water through the chal to their property. The trial court found that plaintiffs have the right to take the water from the natural stream to the plaint A schedule property and granted a decree. The defendant appealed from that decree. The appellate court dismissed the appeal.
(3.) IN this second appeal, counsel for the appellant contended that the plaintiffs can acquire a right to take water from the natural stream only by establishing a grant from the Kovilagam, the admitted owner of the stream, and that since no grant has been pleaded, the lower appellate court was wrong in decreeing the suit on the basis of a lost grant in favour of the plaintiffs' predecessors-in-interest from the Kovilagam. That the plaintiffs and their predecessors have been taking the water from the stream through the chal for the past several years cannot be disputed in view of the evidence of pws. 1 to 3. It is true that the plaintiffs not being riparian owners are not entitled to appropriate the water from the place where the dam has been constructed. It is settled law that it is not open to a tenant to prescribe for an easement as against his landlord. It is doubtful whether a tenant can prescribe for an easement as against another tenant under the same landlord. There is no plea in the plaint of an express or implied grant by the Kovilagam to the predecessors-ininterest of the plaintiffs or to the plaintiffs to take water from the stream. But if it is clear on a reading of the plaint that the allegations there, are sufficient to lead to an inference of a grant, then the court will be justified in presuming a lost grant if the allegations are made out by evidence. The allegations when read as a whole would amount to this; that the predecessors-in-interest of the plaintiffs and the plaintiffs were taking water from the stream through the chal to A schedule property, and that they have been doing it openly and peacefully for the last 50 years.;

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