The Secretary Of State For India In … vs Perumal Pillai And Ors. on 5 November, 1900

Madras High Court
The Secretary Of State For India In … vs Perumal Pillai And Ors. on 5 November, 1900
Equivalent citations: (1901) ILR 24 Mad 279
Bench: S Ayyar, Benson


1. We do not think that any valid objection can be taken to the notice given, on the ground that it proceeded from only two out of the three joint owners. It has been repeatedly held that the object of the notice required by Section 424, Civil Procedure Code, is to give the defendant an opportunity of settling the claim, if so advised, without litigation. That object is fully attained by two out of the three plaintiffs giving the notice, and the same consideration shows that the second objection to the notice, viz., that no notice was given of the claim in respect of the amount collected as fasli-jasti for fasli 1303 is invalid. The notice given was that the defendant had no right to collect anything on account of fasli-jasti, and that the collection which had been made, on that account, for fasli 1302 was illegal, The fact that a further sum for a subsequent fasli was collected after notice of the suit had been given should not, we think, be held to be a fresh cause of action requiring a further notice under Section 424.

2. The “cause of action” in that section should not, we think, be taken in a narrow sense, the object of the section being merely to inform the defendant substantially of the ground of complaint cf. Jones v. Bird 5 B.& A. 837 at p. 844 and this was done, for all practical purposes, in the present case, by the notice actually given.

3. Turning now to the merits, the undisputed facts appear to be as follows:

The plaintiff’s mitta is part of a zamindari originally granted on a permanent sanad in 1803. It was sold for arrears of revenue in 1836 and was purchased by Government, but was granted again in 1859 under a permanent sanad. In the interval between 1836 and 1859 Government repaired and improved a dam across the river at the point where the channel, which supplies the Kumnakudi bank situated in the zamindari, leaves the river, thus improving the supply of water to the tank and the zamindari lands irrigated by it. The surplus water of the tank passes on to another village which is still Government property. The grant in 1859 was made after these improvements had been effected. There is no provision in the grant limiting the use. which the grantee was entitled to make of the water stored in the tank either in irrigating dry land or in raising second crop on wet land. This being so, it cannot be held that the grantee is limited to such use only of the water as was actually made at the time of the grant.

4. The mere fact that there has been an extension of wet cultivation or other improvement in the resources of the zamindari, does not entitle the Government to increase the peishcush. The only ground on which, in a case like this, the Government could demand fasli-jasti would be when the water in respect of which the demand is made is shown to belong to the Government, but from what has been already stated, it is clear that the whole of the water stored in the tank belongs to the grantee, not to Government.

5. For this reason the Government was not entitled to levy fasli-jasti on account of second crops raised with such water.

6. We must therefore dismiss this second appeal with costs.

7. Our observation that the whole of the water stored in the tank belongs to the grantee should not be understood as determining any question between the grantee and those who may be entitled to the surplus water of the tank according to established usage.

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