KASI NAIDU Vs. GOVINDARAJAN

JUDGEMENT

(1.) 1. The plaintiff who failed before the courts below in getting a decree for declaration and permanent injunction has filed the above Second Appeal.

(2.) IT is the case of the plaintiff that he is the co-owner with respect to the lands bearing Survey Nos.234/1 and 234/2. There is a well meant to irrigate the said lands. Defendants 1 to 4 are the brothers of the plaintiff/appellant, and the 5th defendant is his mother. The defendants 1 and 5 purchased the lands bearing Survey Nos.227/6A and 227/6C. According to the plaintiff, the defendants/respondents are not entitled to take water from the suit well to the said lands. So, he filed the suit in O.S.No.127 of 1983 on the file of the learned District Munsif, Manamadurai to get a decree to that effect. The 1st defendant filed written statement and the defendants 2 to 5 have adopted the same. According to the defendants they have been enjoying the suit lands separately, though no partition was effected between the brothers. According to the defendants, the plaintiff is not enjoying the suit lands bearing Survey Nos.234/1 and 234/2. Since they could not cultivate the said lands, the defendants 1 and 5 want to take water for the said lands, from the suit well, which they have purchased for the purpose of cultivation, by which, according to the defendants, the plaintiff would not get any loss, as they are not cultivating the said lands quite a long number of years. According to the defendants, they are taking water only for four days for which they are entitled towards their share. They have been taking water from 1971. So, the plaintiff cannot prevent the defendants from taking such water.

(3.) IN the decision in Nanjappa Goundan v. Ramaswami Goundan, (1951)2 MLJ. 343:64 L.W. 927:A.I.R. 1951 Mad. 459also, this Court following thejudgment of Chandrasekhara Aiyar, J., has held as follows: ?