KATIKANENI VENKATARAMANAYYA RAO GARU Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF GUNTUR

JUDGEMENT

(1.) The only question in this appeal is whether the plaintiffs claim is barred by reason of the decision in O.S. No. 119 of 1914. The learned District Judge has held that the plaintiffs 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. No. 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. The first issue 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 W. S.

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

(3.) In the decree it was stated "that this Court doth hereby declare the plaintiffs right to use the Ogeru water 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." The question is whether the right claimed by the plaintiffs to the use of the Ogeru water for cultivating all their lands irrespective of the extent in dispute was denied or not. Considering the pleadings and the issues raised in the case it cannot be said that the right of the plaintiffs to irrigate an unlimited extent of land was not denied to them. Though the claim was for refund of the money paid under protest yet the claim was based upon the right of the plaintiffs to irrigate their lands with the water of the Ogeru. It was, therefore, necessary for the determination of the suit to ascertain what was the extent of the land which the plaintiffs were entitled to irrigate free of charge. The finding, therefore, of the learned Judge was necessary for the determination of the matter in dispute in that case.