SETHURAMALINGA AYYAR Vs. ANANDA PADAYACHI

JUDGEMENT

(1.) This is an appeal by plaintiffs 1, 2 and 5 complaining of the form in which the injunction has been framed by the learned Subordinate Judge. The plaintiffs brought the suit as lower riparian proprietors complaining that the defendants had put up a bund higher up thereby interfering with the flow of water in the stream. They asked for three reliefs, viz., declaring (1) that the defendants have no rights to use the water of this river for irrigation purposes at all; (2) directing the demolition of the dam already put up, and (3) prohibiting the defendants by means of a permanent injunction from ever putting up any dam across the river higher up the Komarapalayam anicut. The defendants in their written statement did not plead any special right based upon contract or custom but they contended in para. 4 that the use of the water of a river by putting an ordinary dam across it is one of the commonest methods adopted in this presidency. These defendants are entitled to put a dam across the aforesaid river within their "mittah" limits and divert the water for irrigation of their lands adjoining.

(2.) And in para. 5 they added the use of the water of the river in the aforesaid manner is common, reasonable and cannot prejudice the plaintiffs or any other riparian owners lower down.

(3.) It is obvious from the written statement and from the judgments of the Courts below that the defendants rested their case only on their rights as upper riparian owners and not on any special tights founded on contract, custom or prescription. Issue 2 raised the question: Are the defendants entitled to put up any dam and if so to what extent? and issue 3 raised the question: Do the plaintiff sustain any damage or injury by reason of the defendants putting up a dam and are they entitled to maintain an action?