KANDAN ASHTAMOORTHI NAMBUDRIPAD Vs. RAMA MUDALI

JUDGEMENT

(1.) The plaintiff is a jenmi of Malabar and brings this suit for the removal of an anicut erected by the 1 Defendant with the permission of Government, the 2nd defendant, in a thodu which the plaintiff states is his own property. He also claims damages and other reliefs.

(2.) The Subordinate Judga, who tried the suit, has found on Issue No. 1 that the plaintiff is the owner of the thodu on which the anicut is crected, but he has dismissed his suit on the ground that the plaintiff is estopped from claiming the thodu as his. The appellant, plaintiff, now objects to this finding on the ground that the plea of estoppel is not raised in the pleadings and no issue was framed on the point This is undoubtedly true and it is possible that the plaintiff has been prejudiced by this omission The plea has been tried and there are allegations in the 1 defendant's written statement which are such that the plea of estoppel might have been raised; but, in such cases, it is always advisable, if not essential, that the plea should be definitely raised and an issue framed on the point. We think, therefore, that in this case this issue as to estoppel should be raised and the parties allowed to adduce further evidence upon it.

(3.) Another objection is taken by the learned Advocate General that in Government's written statement not only was the ownership of the Vandithodu claimed by Government, but also the right to control the water of the thodu for irrigation. No separate issue was framed on this latter claim hut it might be held to be covered by the general Issue No. 3, "Is plaintiff entitled to have the anicut demolished?" This issue was framed before Government was made a party to the suit, and it is possible that the Subordinate Judge considered that it would cover this plea raised by Government and consequently no definite additional issue was learned on the point. The Sub-ordinate Judge, however, has not considered the point in any way nor the evidence in regard to it. We, therefore, frame an issue on that point and direct the Subordinate Judge to try the following issue If Issue No. 1 is found in favour of the plaintiff, has Government the right to control the use of the water of the thodu for irrigation?