KRISHNA SHETTY Vs. XAVIER MISQUITH

JUDGEMENT

(1.) The question arising in the suit was whether the plaintiffs' land Survey No. 27/6A was receiving water from the watercourse, shown by the Commissioner in Exhibit A-11 as MIMI, on the contiguous land of the defendants, and whether the plaintiffs had acquired a right to the supply of water in that way from the reservoir, denoted by the letter P, in that exhibit.

(2.) Although it was disputed that the plaintiffs had the mulgeni rights in the land Survey No. 27/6A, the Court of first instance negatived the contention of the defendants that the plaintiffs were not the owners of that right But, on the question whether the plaintiffs had the right to take water to their land through the channel M1M1, the finding of the Court of first instance, which was against the plaintiffs, was reversed by the lower appellate Court.

(3.) The lower appellate Court, in coming to that conclusion, gave many reasons. It first believed the oral testimony given by P. Ws. 3 and 4 which, according to the lower appellate Court, had been corroborated by the admissions made by D. W. 2 who was a tenant of defendant 1. The evidence of P. Ws. 3 and 4, which the Sower appellate Court believed, although that evidence had not been believed by the Court of first instance was, that for a long number of years, the plaintiffs' land was receiving supply of water for the yenel crop, through the channel M1M1, and that such channel was in existence all along. Although the Court of first instance did not believe the evidence of P. Ws. 1 and 2, for reasons which are stated in its judgment and to which it would not be necessary to refer in this second appeal, it did not set out any reason whatsoever for discarding the testimony of P. Ws. 3 and 4. But, the lower appellate Court did believe the evidence of P. Ws. 3 and 4 and the reason why it regarded their evidence as trustworthy was that their evidence was, to some extent, corroborated by the evidence given by D. W. 2. D. W. 2 who is the tenant of defendant 1 stated in his evidence that water used to flow into the plaintiffs' land from Survey No. 27/ 6B which belonged to defendant 1, although he modified that answer by adding that it did not flow through any definite channel. But, it was open to the lower appellate Court to believe the evidence given by P. Ws. 3 and 4, as it did.