Ambalavana Pandara Sannadhy vs The Secretary of State for India in Council

The channel in dispute is an artificial channel and was in existence before the grant of the three inam villages to the plaintiff.

The first question for decision is whether, on the proper construction of the plaintiff''s title deed the grant of 1614 [Exhibit J (1)] the channel in

regard to which the declaration and injunction are sought, is included in the grant and is therefore the absolute property of the plaintiff as contended

by him.

The channel is one that conveys waters from the bed of the Tambrapurani river to certain Government villages on its banks, and then to the three

inam villages of the plaintiff, and then to other Government and other inam lands lower down on the channel. In the grant of 1614 the boundaries of

the village are specified, and then the grant says that within these boundaries the wet lands, dry lands, Swarnadayam, village site, temple, palmyra

and other trees, groves, wells, immemorial waste, tanks,mine, treasure, waters, trees, stones, whatever is obtainable and what is desirable and

eight rights of ownership (Ashtabogam) are granted.

It is remarkable that there is no express reservation of the channel nor any mention of the grant of the channel, though the existence and

importance of channels as separate entities was present to the mind of the grantor, since more than one channel is referred to in detailing the

boundaries of the village.

The omiosion to grant the channel is significant, especially when it is observed that tanks and wells are separately mentioned and we think that

the omission was intentional and that the word ""waters"" (jala) cannot be held to include the channel. The channel in question is a large and

important feature running right through the villages and it would certainly have been mentioned, if it was intended that its ownership should pass

under the grant. The word "" jala"" would never be used to describe a particular channel. It is used in the present case along with other words to

indicate the completeness of the grant of the things specified as granted, viz., the wet and dry and waste lands, village site, &c.

And it is natural that the Government in granting villages as inam should not have granted the channel, since the conservation and control of

works of irrigation have from the earliest times been the especial function and duty of Government in India (The Madras Railway Company v. The

Zemindar of Carvatenagaram, L.R. 1 I.A. p. 364 Ponnuswami Tevar v. The Collector of Madura 5 M.H.C. 6 and S.A. No. 1851 of 1902 See

Sankaravadivela Pillai v. Secretary of State ILR 28 M. 72. and in the present case the channel running through the three villages granted to the

plaintiff is only a portion of a channel which supplies other lands both higher up and lower down than the lands granted to the plaintiff and the grant

of the proprietary right in so much of the channel as passed through the plaintiff''s villages would be obviously inconvenient and injurious to all

concerned, as creating a divided ownership and control and a divided responsibility for the upkeep of the channel as a whole, and of the dam

across the river on which the channel depends for its supply of water.

We find, then, that the channel is not included in the grant, and we agree with the District Judge that the plaintiff has not had any adverse

possession of it as against Government so as to give him a proprietary title by prescription. The fact that the plaintiff clears the channel and

contributes labour when the channel is breached and contributes labour to assist Government in erecting the dam in the river each year is no proof

of any proprietary right-It is customary for landowners to contribute such labour for ordinary repairs of irrigation works by which they benefit, and

such labour may even be enforced under the provisions of the Madras Compulsory Labour Act (I of 1858,) but it by no means indicates that the

persons liable are owners or co-owners of the irrigation works. It is significant that the only expensive materials for the dam viz., the timber

required is supplied by Government.

The channel not having been granted remains the property of Government and the proper officers of Government have the right of entering on it

and carrying out such repairs and improvement as are proper, but in doing so they must no!; interfere with the customary supply of water to the

plaintiff''s lands or unnecessarily cause damage thereto. The rights and liabilities of Government in maintaining and in improving existing irrigation

works has recently been considered by this Court in the case of Sankaravadivelu Pillay v. Secretary of State for India (S.A. No. 1351 of 1902

Since reported, see ILR 28 M. 72 but in the present case it is not necessary to do so, since there is not only no evidence that the plaintiff has been

injured or must necessarily be injured by the work done, or proposed to be done by the defendant in regard to the channel, but it is clear, as the

District Judge observes, that particular orders have been issued to the Department of Public Works to revise the estimate (Exhibit 38) so as to be

quite certain that no damage is caused to plaintiff.

There is therefore no case for the declaration sought for or for injunction (Krishna Aiyyan v. Venkatachalla Mudali 7 M.H.C. 60 and we dismiss

the second appeal with costs.