SANKARANARAYANA VADHYAR Vs. ARUNACHALAM

JUDGEMENT

(1.) The plaintiff, whose suit for an injunction has been dismissed by both the courts below, is the appellant. The plaintiff and his brothers Subramonia Vadhyar and Sundara Vadhyar entered into a partition evidenced by Ext. A dated 20-3-1926. In Ext. A the properties were divided and allotted in three schedules; Schedule A was allotted to the plaintiff, Schedule C to Sundara Vadhyar, and Schedule B, with the 'Eri' described in the schedule appended to the plaint and its adjoining lands, was allotted to Subramonia Vadhyar. 'Eri' is a low-lying land which may be used either as reservoir for storing water or as a field for cultivation of paddy as suits the landlord. It was provided in clause 11 of Ext. A that, since there is no reservoir in the properties allotted to the plaintiff, he will be entitled to take water to his fields from the Eris in the B and C schedules, as used to be done before, through the channel by the side of the Eris, and that, for the purpose of irrigating the fields in A, B and C schedules the Eri in C schedule should never be cultivated but always be stored with water and the Eri in B schedule should be stored with water in the second cultivation season (after having been cultivated for the first season). Subramonia Vadhyar has cultivated the Eri in his B schedule for the second crop in the year 1950 contrary to the above agreement and has thereby caused shortage of water for plaintiff's crops resulting in a loss of 200 paras of paddy to him that season. The plaintiff, having come to know of the contract for sale between Subramonia Vadhyar and the 1st defendant, issued notices requiring them to observe the above said covenants but they refused the same by their reply and had the conveyance executed in favor of defendants 1 and 2. With these averments the plaintiff has instituted this suit to compel the defendants to keep the Eri stored with water in the second cultivation season every year. Subsequently, the 3rd defendant, who is a lessee under defendants 1 and 2, has also been impleaded in this suit. Subramonia Vadhyar was not made a party to the suit. As stated before, the property scheduled in the plaint is the Eri in the B schedule of Ext. A; but its extent is mentioned in the plaint as 1 acre and 60 cents. It has been concurrently found by the courts below that the Eri was only 200 koles in perimeter or 311/4 cents in area. The appellant therefore submitted that in this Second Appeal the Eri scheduled to the plaint be taken as only of 200 koles in perimeter or 311/4 cents in area. The contentions of the defendants are that Subramonia Vadhyar has never kept the Eri stored with water in any season since the partition of 1926, that he had converted the parambas (lands) at the east and west of the Eri into double crop paddy fields and was raising two crops every year since 1926 in all the area including the suit Eri, that there was no channel by the side of the suit Eri, that the plaintiff has been raising successfully two crops in his fields with the water supplied by the Eri in Sundara Vadhyar's possession and the Government irrigation channel, that the covenant in Ext. A in regard to the suit Eri was never put to operation but was abandoned by the parties and that this suit is actuated by mala fides on account of the assignment of the property by Subramonia Vadhyar in favor of defendants 1 and 2.

(2.) The trial court found that there was admittedly no channel by the side of the suit Eri and that there being no prayer to restore the channel through which alone the plaintiff, even according to his averments, would be entitled to take the water from the suit Eri to his fields, no useful purpose can be served by the issuance of an injunction as prayed for in the plaint, which will only be to the prejudice of the defendants with no corresponding advantage to the plaintiff. Relying on the Irrigation Registers, Exts. II to XV, Subramonia Vadhyar was found to have raised the second crop of paddy every year in the suit Eri till 1948 (1123 M. E.). The plaintiff had lost his right, if any, in the suit Eri by abandonment and acquiescence. The plaintiff's crops never suffered for want of irrigation by the suit Eri. The suit is not actuated by bona fides. In view of these findings the learned Subordinate Judge dismissed the suit with costs. The plaintiff took the matter in appeal before the Additional District Judge of Trichur, who only agreed with the findings of the trial court and dismissed the appeal with costs. This Second Appeal is by the plaintiff against the above-said decree.

(3.) The material question that arises in this Second Appeal is whether the plaintiff is now entitled to enforce his right to take water from the suit Eri.