PALANIVEL GOUNDAN Vs. MUTHU GOUNDAN

JUDGEMENT

(1.) THE second appeal is by the three plaintiffs in the courts below, who sued for a certain declaration of right and consequential permanent and mandatory injunctions relating to that right to take surplus water overflowing from the tank marked "t" in the plan, as also the rain water from the natham site marked "n" along the channel marked 'b' to the pond or kuttai marked 'k', which is the private source of irrigation for the lands of the plaintiffs immediately to the south of that kuttai. The sole ground for determination in the second appeal is the manner in which these rights claimed by the plaintiffs are to be declared, delimited and decreed.

(2.) I might immediately state that the learned District Munsif of Namakkal, who tried this suit, apparently felt no difficulty in the matter. He decreed the suit for declaration and a permanent injunction as prayed for, holding that, as regards the mandatory injunction, there was really no need. The entire difficulty arises from the fact that the learned Principal Subordinate Judge of Salem, in first appeal, has reversed this decree and dismissed the suit. Learned counsel for the plaintiffs (appellants) contends, not without force and plausibility that upon the very findings of fact as given by the learned Subordinate Judge, and the law relating to artificial channels of this description, also set forth by the learned Subordinate judge, in paragraph 9 of his judgment, the appellate court should only have confirmed the decree of the trial court, and should not have reversed it.

(3.) AS I have stated just earlier, it seems impossible to deny that, on the explicit findings of the trial court and the first appellate court, the suit could not have been dismissed outright. Actually to dismiss the suit outright upon those findings is to misapply the law relating to artificial channels of the description found in this case, particularly where the lands are dry lands irrigable from a purely private source, and there is no question either of a Government Ayacut or of Governmental liability to supply water. The true problem is not whether the second appeal should be allowed or otherwise, for it could be irresistibly contended that the decree of the appellate court below is erroneous, and that it ought to be therefore reversed. The true question is whether the contesting respondents (defendants) are also not entitled to plead that, at least as a matter of Just and reasonable inference, their right to take water from this artificial channel as it passes through their lands, ought to be upheld. If it is found that the respondents also have right to take water from the artificial channel through the part of it constructed on their lands, a further question will arise of the limits of this user. These are the only difficulties in the second appeal.