NARAYANA BALTHILAYA Vs. VENKATESHA BALTHILAYA

JUDGEMENT

(1.) The plaintiff appellant and his suit was for a declaration that he had a mamul right to take water from a channel on the defendant's land S. No. 71/7 for the cultivation of his land Survey No. 71/5 after the construction of a katta in the south-east corner of the defendant's land across the stream so that the water may flow in the direction of his own land. I am not concerned in this appeal with the right of way since the claim to that right was given up in the lower appellate court. The only question, therefore, that remained for the lower appellate court consider to consider was whether the mamul right asserted by the plaintiff was established.

(2.) The plaintiff examined a large number of witnesses in support of his assertion that there was a mamul right and the defendant examined himself and another witness in support of the allegation that the plaintiff was not raising any wet crop on his land but allowed it to lie fallow. Both the courts disbelieved the evidence given by the plaintiff's witnesses. The munsif recorded the finding that the mamul right pleaded by the plaintiff was not established, while the Civil Judge reached the conclusion that the prescriptive right, as he called it, asserted by the plaintiff was not established. So, the plaintiff's suit was dismissed.

(3.) In this appeal Mr. Narayana Rao made many criticisms of the judgments of the courts below. The first and the most serious complaint made against the judgment of the Civil Judge by Mr. Narayana Rao was that the Civil Judge entirely misunderstood the character of the plaintiff's suit. It was maintained that the Civil Judge was in error in thinking that the plaintiff depended upon a prescriptive right while it was clear from the plaint and from the evidence that the right asserted by the plaintiff was a mamul right and not a prescriptive right.