AYYANNA GOUNDER Vs. RAMASAMI GOUNDER

JUDGEMENT

(1.) THE plaintiffs are the appellants. THEy filed the suit for a permanent injunction restraining the defendants from laying underground pipe to take the Kalingarayan Channel water from the suit channels to their well in G.S. No. 392/A-1 of Nanjai Uthukkuli. It is the specific case of the plaintiffs that themselves and about 32 others own 40 acres of lands both at Kurukkupalayam and Nanjai Uthukkuli villages Erode Taluk, irrigable with Kalingarayan Channel water through ?Kanni Vaikkal? bearing Survey Numbers 193 and 195 of Kurukkupalam village. THE plaintiffs stated that the defendants dug up a well and installed a 7 1/2 H.P. electric motor and pump set and they were not entitled to irrigate their lands with the water flowing in the ?Kanni Vaikkals?. It is also the case of the plaintiffs that the defendants on 26-8-1975 attempted to lay underground pipes to tap unlawfully the water running in the ?Kanni Vaikkal? to their well. It was alleged in the plaint that if the defendants succeeded in their unlawful activities, the crops in 40 acres belonging to the plaintiffs would wither away and the water running in the ?Kanni Vaikkals? would be sufficient only to cultivate their 40 acres of land. THE cause of action for the suit is said to have arisen in the plaint on 26-8-1975 when the defendants attempted to lay underground pipes.

(2.) AFTER the filing of the suit, defendants 4 and 5 were impleaded as parties. They are the State of Tamil Nadu represented by the District Collector, Coimbatore and the Executive Engineer, P.W.D. Canals, Kalingarayan Channel, Erode. The trial Court dismissed the suit as against defendants 4 and 5 for want of notice under S. 80 of the Code of Civil Procedure, while granting a decree as against the other defendants. On appeal, the learned Subordinate Judge, Erode reversed the conclusion of the trial Court and dismissed the suit in entirety.

(3.) P.W. 3 is an Assistant Engineer in Public Works Department. His evidence does not help the parties very much. He speaks only about the notice issued to the defendants on receipt of a complaint from the plaintiffs that the defendants were taking water unlawfully through pipes to their well. He does not speak to holding any enquiry as to whether water was being taken by the defendants unlawfully. According to him, four or five persons are irrigating their lands with well water. He admits that he never verified the facts with the records. He admits that about thousand people take water from the Kalingarayan main channel just like the defendants and take them to a distance of half or one mile through pipes. According to him, the department has taken action against some of the persons.