N ARIVUDAI NAMBI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The earlier appeal is by the Plaintiff Arivudai Nambi and the latter is by the State Govt. Both the appeals arise as a result of a common judgment delivered by the first appellate Court, namely learned Additinal District Judge, Coimbatore under the following circumstances

(2.) The plaintiff is a resident of Mettupalayam owning lands to the extent of 11 acres, namely six acres comprised in S. F. No. 814 and five acres in S. F. No. 815/ 1 at Thekkampatty Village two Kilo metres from Mettupalayam. They are dry lands and he has got two wells installed with electric motors each with 7.5 H. P. The lands are situate on the southern banks of river Bhavani, more fully described in the plan marked as Ex. B. 4, filed by the Government. The suit is for a declaration that the plaintiff is entitled to lift water from the river at a point numbered as (2) in the plan Ex. B. 4 for the purpose of irrigating the lands stated above as a riparian owner.

(3.) It transpires that when the water in the river recedes the plaintiff used to dig a channel so as to facilitate water to flow to the Point No. 2 and then to lift the water for irrigation. In Ex. B. 4 the channel, that the plaintiff used to form, when the water recedes in the river, is also shown. This was objected to by the State Government. A demand notice for fasli 1386 asking the plaintiff as to why the water Cess should not be levied, was acknowledged by the plaintiff on 12-3-1987 without replying to the notice the plaintiff has filed the suit. The suit is for a declaration that the plaintiff is entitled to draw water from Bhavani River as a riparian owner. The trial court on a consideration of the oral and documentary evidence dismissed the suit. The plaintiff preferred an appeal and the first appellate court virtually agreed with the trial court with, reference to the right of the plaintiff to take water from the river and dismissed the suit. As far as the alleged percolation of the river water into the wells situate in the lands of the plaintiff, the first appellate court came to the conclusion that river water does not percolate into the wells. Aggrieved by the finding of the first appellate court, the plaintiff has preferred Second Appeal No. 622 / 1982 and the State has preferred Second Appeal No. 669/ 1982 with reference to the finding of the first appellate court that the water found in the wells is not the water percolated from the River.