NAGARATHNA MUDALIAR Vs. SAMI PILLAI

JUDGEMENT

(1.) The plaintiff is the owner of Survey No. 148 and a portion of Survey No. 147 in the village of Arnoor. The second defendant is the owner of the rest of Survey No. 147. The first defendant is the owner of survey No. 158 which is adjacent to Survey No. 147, and east of it but situate in the village of Overkudi. The suit is for declaration that the plaintiff is entitled to discharge not only the rain water but also the water utilised for irrigation purposes brought on to his land from an adjoining irrigation channel into the land of the first defendant through Survey No. 147 and for an injunction retraining the first defendant from causing obstruction to the flow.

(2.) The plaintiff's case is that the lands, Survey Nos. 148 and 147, are high level lands and Survey No. 158 is land on a lower level, that from a long time the water which fell on the plaintiff's land always used to be drained through Survey No. 147, then into Survey No. 158 through a Madai in a bund which divided the field of 147 from 158 and then emptied itself into what is called Vadigal Odai which finally emptied itself into the river Vettar, that the first defendant who purchased Survey No. 158 recently began to obstruct the flow which has been enjoyed from time immemorial, that originally the lands were rainfed but subsequently in 1891 they became ordinary irrigated wet lands by an arrangement with the owners of the neighbouring village Pulangudi to get water through their irrigation channel and for nearly over a period of 30 years up to the date of obstruction in 1923 he has been irrigating the said lands and discharging the water through S. No. 158 and there is no other outlet for the flow. The claim as laid in the plaint is as follows.

(3.) From time immemorial the waters in Survey Nos. 148 and 147 used to drain themselves through the lands of the second defendant in the north-eastern portion of Survey No. 147 into Survey No. 158 and these waters will ultimately drain themselves through a channel lying between Survey Nos. 158 and 157 into Vadigal Odai also shown in the plan. This kind of drainage has been going on from time immemorial and the plaintiff and his predecessors-in- title have been enjoying such right of drainage from before the remote memory of man as a right continuously and without interruption. The plaintiff and his ancestors have thus acquired an easement right to drain the waters in Survey Nos. 148 and 147 as above indicated into the lands of the defendant.