ARJUNA UDAYAR Vs. MANUSWAMY NAICKER

JUDGEMENT

(1.) Plaintiff in O.S. No. 327 of 1978, on the file of pricipal District Munsif, Ami, is the appellant. After filing the Second Appeal, the appellant died and his legal heirs have been impleaded as additional appellants 2 to 7.

(2.) Deceased plaintiff filed the suit for declaration of plaintiff's right to take water form the well through the channel marked as ABCD in the plaint plan arid for a mandatory injunction to restore the obliterated channel. Plaintiff purchased properties included in S. Nos. 141/9, 142/1, 142/12, 142/8, 142/13, 142/14 under various sale deeds. It is his case that he has got right to take water from the well situate in S.No. 142/3 over which he has got an undivided share. But the water has to be taken through, the properties of the defendant's situate in S.Nos. 142/6 and 142/7. It is his further case that his right to take water through the channelis being exercised by himself and his predecessors from time immemorial and by about 1974, the defendants obliterated the said channel. It is said that he has complained about the same to the local Tahsildar. The 1st defendant agreed to resotre the channel to be taken on the southern side of the lands and he did not agree to the water being taken through the usual route. Therefore, the plaintiff has filed the suit for declaration of his right to take water through ABCD portion passing through the defendant's land.

(3.) In the written statement filed by the 1st defendant he disputed the right of the plaintiff. He said that there is no channel and the plaintiff was also not taking water through the so-called channel and demarcated as 'ABCD' in the plaint plan. Even as early as on 7-12- 1973, the plaintiff caused a lawyer's notice stating that a channel is used by him and he wanted to remove the obstruction. It is further said that the plaintiff is taking water from his well through some other way. At any rate since the suit is filed on the basis of easement by presciption, it is not maintainable as it is filed beyond the time.