LAWS(MAD)-2004-4-17

SELLAPPA GOUNDER Vs. NACHIMUTHU GOUNDER

Decided On April 26, 2004
SELLAPPA GOUNDER Appellant
V/S
NACHIMUTHU GOUNDER Respondents

JUDGEMENT

(1.) This Second appeal has arisen from a common judgment of the learned Subordinate Judge, Namakkal, made in A.S.Nos. 39 and 44 of 1990.

(2.) The respondents herein filed a suit seeking declaration that the plaintiff was entitled to 1/6th share in a common Well shown as "W"; that the plaintiffs were entitled to take water to their lands shown as "P" through the channel shown as A3 and A4; that the defendants 1 to 4, 6 to 9 were not entitled to take water from the said common well only to the land situate in S.No.340; that the defendants should not prevent the plaintiffs taking water from the common well to their lands; that the plaintiffs are entitled to take water to the lands in S.No.29; that the plaintiffs were taking water through A, A1, A2, A3, A4 channel; that the said common well "W" is situate in S.No.340/4 measuring 0.05 cents; that through the said channel A, A1, A2, A3 and A4 which are situate in the lands of defendants 1 to 4, 6 to 10, the plaintiffs are taking water from the common well to their lands; that the first plaintiff was taking water from the year 1956 when he got the property through settlement executed by his grand father; that while so, the defendants denied the rights of the plaintiffs taking water from the common well and they have obliterated the channel; apart from that, the defendants were attempting to take water to different lands to which they were not entitled to apart from the land in Survey Field No.340 to which they were entitled to. Under such circumstances there arose a necessity for filing a suit.

(3.) The suit was resisted by the defendants stating that the land situate in Survey Field No.340 originally belongs to a family; that a common well situate in S.No.340/4 was used by all the family members to take water for all the fields situate not only in S.No.340 but for the other fields also; that it is not correct that the first defendant executed a settlement deed in favour of the second plaintiff; that it is true that the first plaintiff was entitled for 1/6th share in the common well "W", but it is not correct to state that the defendants have obliterated the said channel leading to the plaintiffs land; that the defendants have been taking water to all their lands apart from the survey field No. 340; that the plaintiffs are not contributing for the maintenance of the common well and the same was totally incurred by the defendants; that the right of the plaintiffs taking water from the well has been extinguished long back since they were neither using the channel nor were taking water from the well in question and thus, by non-user, the right of the plaintiffs have been extinguished long back and thus, the plaintiffs are not entitled for the relief asked for.