K V VENUGOPALA REDDIAR Vs. ALLIAMMAL

JUDGEMENT

(1.) THE above Second Appeal has been filed by the plaintiff in O.S. No. 325 of 1977, on the file of the District Munsif Court, Tirupattur North Arcot District, who succeeded before the trial court, but lost before the first appellate court, against the judgment and decree of the learned Subordinate Judge, dated 8.3.1983 in A.S. No. 54 of 1982, reversing the judgment and decree of the trial court and dismissing the suit.

(2.) THE case of the plaintiff/appellant before the trial court was that the properties comprised in S. No. 255/6 belonged to the plaintiff and the 2nd defendant jointly; that in the well and the channel for taking water from the said well, the plaintiff is entitled to 1/5th share; that the common channel can be used for irrigating the lands of the 2nd defendant and the plaintiff alone that the 1st defendant is the wife of the 2nd defendant and the other defendants are the children of defendants 1 and 2 and the 1st defendant is trying to take water from the well situated in her land in S. No. 275/5 through the common channel and in spite of objections by the appellant, the defendants persisted in doing so which necessitated the filing of the suit in question for declaration of plaintiffs 1/5th right and share in S. No. 255/6 and the right to take water from the well W1 through the common channel and for permanent injunction restraining the defendants from taking water from well in S. No. 257/5 through the common channel in S. No. 255/6.

(3.) ON the above claims and counterclaims the suit was tried and both parties adduced oral and documentary evidence in support of their respective claims. The learned trial judge, by his judgment and decree, dated 12.2.1982, decreed the suit as prayed for holding that the defendants have no right to take water from the well marked as W2 through the common channel to their other lands and the attempt of the defendants to do so is in violation of the rights of the plaintiff, and since the defendants have purchased the land in which W2 well is situated only in the year 1962, the defendants could not be said to have acquired any easementary right to take such water through the common channel. Aggrieved, the defendants pursued the matter before the Sub Court, Tirupattur, North Arcot District. The learned first appellate Judge had also gone into the matter in great detail and in the light of the oral and documentary evidence, came to a conclusion different from the one arrived at by the learned trial Judge and while allowing the appeal, ordered dismissal of the suit filed by the plaintiff. The learned first appellate Judge was of the view that the earlier proceedings between the plaintiff and the 1st defendant, marked as ex. B1 and Ex. B2, disclosed that plaintiff had only 1/5th share in the well and the right to take water through the common channel; that the plaintiff himself admitted during the evidence the right of the 2nd defendantto 4/5th share in the well and also the common channel, and the report of the Commissioner goes to show that the common well W1 was in a dilapidated condition and not in actual use and even PW. 2 had to admit that the water was being taken from W2 well for the past ten years prior to the date of such evidence and that therefore, the plaintiff has not substantiated any prejudice or damage to him by the defendants taking water from W2 well through the common channel to their lands. Reliance was also placed by the first appellate court on the decision of a learned single Judge of this court, reported in AIR 1973 Madras 42=(1972) 85 L.W. 659 in coming to the conclusion that the judgment of the trial court is liable to be set aside.