DURAISWAMI GOUNDER ALIAS VENKATAYYAN Vs. SUNDARAMMAL

JUDGEMENT

(1.) AN interesting point has been raised in this appeal whether with respect to the water available in a well which is situated in S. No. 390/3 and its irrigational potentialities had been considered in favour of the appellant herein there can be a restriction to the extent to which that water in the well can be made use of.

(2.) IT is common ground that S. No. 392 belongs to the plaintiff which is known, as Rangappa Gowder's land and which is also shown in yellow colour in the Commissioner's plan. The defendant's land has been coloured with green pencil. S. No. 390/1 belongs to one Krishnappa Gowder and it is known as Krishnappa Gowder's land under the cultivation of the plaintiffs. The rough plan of the Commissioner shows the existence of this well, water of which is available for cultivation. IT is with respect to the land beyond the line F. I. marked in the Commissioner's plan on the eastern side that there is a dispute now. The case of the appellant is that when once it has been held that the water available in the well in question can be utilised for irrigational purposes by the appellant, there is no question of any restriction prescribed for its extension to the land to which the water in it can be utilised either by baling out the water by way of installing an electric motor or by way of a country picots. IT is relevant in this connection to note that the rough plan Exhibit C-2 is self-explanatory and as such needs no further elucidation. As a matter of fact the suit itself was laid before the trial Court for the declaration that the plaintiffs are entitled to take water from the suit well to irrigate S. No. 392 and for consequential injunction. The trial Court held that the defendants cannot obstruct the plaintiffs from using the motor in service connection No. 64 to irrigate the eastern portion of S. No. 392 also by the suit well. IT has also held that the first plaintiff will not be entitled to irrigate S. No. 392 through service connection No. 65.

(3.) THE proviso to section 100 of the Code of Civil Procedure which is abso-lutely clear that not only the point that is framed at the time of admission of a second appeal that can be taken up for discussion while disposing of the second appeal but even points that arise during the course of arguments and as a matter of fact even some points which occur to the Courts on going through the records can also be taken for discussion because it is a point of law. Under the circumstances. I upheld the contention of Mr. G.M. Nathan viz., that when once a right has been conceded with respect to an easementary right that is claimed by a party in a suit, the party which has conceded that right cannot restrict the extent to which that easementary right can be exercised. Absolutely no one can have any kind of objection for upholding this contention because it is nothing but a rule of law. As a matter of fact this rule of law which also possesses the character of the principle of equity has been embedded by Ananthanarayanan, J. as he then was, in Ramachandra v. Venkatachala1.