KALIMUTHU Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS revision is directed against the order passed in I.A. No.793 of 1994 in A.S. No.40 of 1991 on the file of Sub Court, Devakottai. The appellants in A.S. No.40 of 1991 are petitioners herein.

(2.) THE petitioners filed O.S. No.308 of 1990 in the Court of District Munsif for themselves and on behalf of the villagers of Kadampatti village and Periyanavayal village, praying for a decree that they are entitled to the easmentary right of taking water from the northern sluice of Jayankondam Kanmoi through S.Nos.13, 78, 77 to the Kandarampatty Kanmoi through S.No.13 and S.Nos.130, 134 and 150 to 160 Periyannavayal Kanmoi ayacut and also restraining the respondent from in any manner interfering with the peaceful possession and enjoyment of the water from Jayamkondam Kanmoi through the last sluice on the northern side irrigating the fields by the plaintiff. Though the trial court agreed with the contentions of the plaintiff, did not grant any relief as prayed for by the plaintiffs because of technical defect in the pleadings. THE State through the Collec- tor and Tahsildar, Karaikudi have been impleaded as defendants 1 and 2. Defendants 3 to 5 were impleaded themselves and on behalf of Jayankondam village. THE defendants filed their written statement, resisting the suit. THE trial court held that the villages of Kandarampatti and Periyanavayal have been irrigating the lands in the ayacut through the Jayankondam 4th sluice for the past several years. THE trial court also found that during the pendency of the suit the plaintiffs were drawing water from the said sluice and yield from the crops in all the villages was good and that Jayamkondam village has not suffered by supply of water to the lands of the plaintiffs. THE trial court held that no right of easement can be claimed against the State. On this technical defect in the pleadings the suit was dismissed. Against the judgment and decree of the trial court the plaintiffs preferred an appeal, A.S. No.40 of 1991.In the first appellate court the plaintiffs have filed an application for amendment of the plaint seeking relief on the basis of customary right instead of easmentary right. THE application for amendment was allowed. By judgment and decree dated 11.2.1992 the appeal was allowed as against the defendants 3 to 5 and dismissed the suit as against defendants 1 and 2. Aggrieved by the judgment and decree, defendants 3 to 5 filed S.A. No.317 of 1992 and the plaintiffs also preferred a second appeal against the said judgment and decree in so far as the suit was dismissed against defendants 1 and 2. Respondents 3 to 5 ought for suspension of the decree of the lower appellate court. THE learned single Judge of this Court held that the plaintiffs are entitled to take water and dismissed the said petition. This Court in the second appeal held that the order allowing the amendment cannot be sustained, and observed that in view of the technical defects in the pleadings, the trial court should have asked for withdrawal of the suit and ot file a fresh suit on the same cause of action. THE second appeal was allowed and the matter was remanded to the first appellate court for fresh disposal.

(3.) LEARNED Government Pleader appearing for State submitted that since the suit and the application were filed in representative capacity and notice under O.1, Rule 8(4), C.P.C. was not given by the petitioners herein in I. A. No.793 of 1994, the first appellate court was correct in dismissing the application for withdrawal of the suit. Therefore, the revision is liable to be dismissed in limine.