BALAMMAL Vs. PHK. S. MUTHUSWAMI CHETTIAR AND ORS.

JUDGEMENT

(1.) BALAMMAL , the first defendant in O.S. No. 14 of 1964 on the file of the District Munsif, Ariyalur, is the appellant in this second appeal. She is the owner of Chinna Mavadi and Mudal Karai lands lying to the east of Peria Mavadi lands obtained by the first respondent -plaintiff under the settlement deed, the original of Exhibit A -2 from Lakshmi Ammal, the co -widow of the first defendant. There is a channel NC running between Peria Mavadi lands and Chinna Mavadi lands as shown in the Commissioner's plan and it irrigates both these lands. The first respondent -plaintiff filed the suit for a declaration that whenever he cultivates plantain crops on the plaint A Schedule Peria Mavadi lands, he is entitled to drain off the surplus water from the said lands, into the plaint B schedule Chinna Mavadi lands, and for an injunction restraining the defendants from interfering with his exercising the said right by putting up an earthenware pipe at the point M underneath the bed of the channel N.C.

(2.) DEFENDANTS 4 and 5 were added subsequently on objection taken by the appellant and they filed written statement supporting the claim of the first respondent -plaintiff, but they did not take part in the trial of the suit.

(3.) IN order to dispose of this appeal, it is necessary to have a clear idea of the right claimed by the first respondent -plaintiff, which has been rightly described by the trial Court as an extraordinary right. It is a right which the plaintiff claims to exercise only when he raises plantain crop on Peria Mavadi land. On such occasions, he will dig his field into trenches and drain off the excess water by putting up an earthenware pipe, underneath the channel N.C. at the point M in the Commissioner's plan. It is clear from the evidence in this case and the admission of the first respondent -plaintiff and his witness, P.W. 1, that the first defendant or defendants 4 and 5, owning lands lower down, are not bound to receive the surplus water even during such plantain cultivation in Peria Mavadi, in case they raised paddy cultivation in their fields. The obligation to receive surplus water by the first defendant as owner of the Chinna Mavadi lands and by Ganesa Pandithar and Ekambara Pillai as owners of lands lower down would arise only if each of them cultivated his land with plantain crop. It is the evidence of the first respondent -plaintiff that paddy will be cultivated in his land in one year and then plantain raised in his land in two or three succeeding years. In order that the first respondent -plaintiff may effectively exercise the right claimed by him, it is necessary that the appellant, Balammal, as well as Ganesa Pandithar and Ekambara Pillai, who own lands lower down, should all raise plantain crops. Further, the appellant, Balammal should cut trenches in her field in a line with the earthenware pipe laid by the first respondent -plaintiff in a line with the trench at the spot in his field. Normally, the owner of a servient tenement cannot be expected to do positive acts on his land in order to enable the owner of the adjacent dominant tenant to exercise his right of easement. In fact, the evidence of P.W. 1 is that the enjoyment spoken to by him was done by mutual understanding between the parties.