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Judgment
The defendant''s own case is that there was, however, an old kuttai or pond fed by two rills. There is now another water-course issuing out of
the pond, and the defendant now claims that the rills, the kuttai and the other water-course form a natural stream. If this be so, the evidence clearly
points to the plaintiff having acquired an easement to interrupt the flow through the pond by bunding it up so as to store the water. The pond has a
stone revetment and even the written statement says that the water which flowed from the pond, flowed through a breach in the kuttai, or, as the
evidence shows, through a breach in the stone revetment. Once the easement is shown, it is for Government to show u/s 47 of the Easements Act
that it interrupted that easement more than 20 years ago or that the plaintiff rendered its use impossible, and that has not been done. Mere failure
on the plaintiff''s part to repair the breach would not amount to obstruction by the servient owner or rendering the use impossible by the dominant
owner.
As to the claim to levy water cess, these rills run through the plaintiff''s pattah land, and their beds have not been separately demarcated as
poramboke; they are part of the pattah land and not the property of Government, and, therefore, the water-course cannot be said to belong to
Government as decided day before yesterday in Appeal Suit No. 113 of 1910 (on the file of the High Court).
The appeal must be allowed and the suit decreed as claimed, except as regards the cess for fasli 1318, with costs throughout.
The time for payment will be three months from this date.