SWAMINATHA MUDALY Vs. VELU MUDALY

JUDGEMENT

(1.) There is not much difference, if any, between the facts as found by the learned Judge and by my learned brother whose judgment I have had the advantage of reading, and the only question is as to the proper inference arising from these facts with reference to the plaintiffs claim to the tank water by prescription as pleaded in paragraphs 16 and 17 of the plaint. If we take into account only the fact that the water has been brought from tank B, which is on land purchased by the defendants ancestors to A, which consists of plots purchased by the ancestors of the plaintiffs and defendants and the fact that all the plots were cultivated jointly, it may be said that the fact that the defendants used their water from tank B in raising betel jointly with the plaintiffs sometimes on portions of A purchased by the defendants ancestors and sometimes on portions purchased by the plaintiffs ancestors only amounts to a user by the defendants of their own water for their own purposes, even though that cultivation was being carried on by them jointly with the plaintiffs, and should not raise any presumption of right to the use of the water by the plaintiffs. This would appear to be the view taken by the learned Judge who tried this case.

(2.) On the other hand, the user of the plaintiffs may be presumed to be as of right and to have a lawful origin and if a lawful origin of the plaintiffs right can be suggested, such an origin may be presumed. Here we have the fact that the land on which the tank and channel were excavated was purchased by Murugappa Mudaly, who is described in the sale-deed as one of the Thottam or garden Mudaliars, a description which includes the plaintiffs, whereas in the sale-deed of portions of the plot A purchased by him shortly afterwards the description is omitted. This suggests that sites B and G may have been purchased by him on behalf of all the families of both the plaintiffs and defendants who were about to embark on betel cultivation on plot A and that the tank and the channel may have been excavated by them. Then we have the fact that the channel D, by which the water from B and C is brought on to the land A, bears the name of Muthia Mudaly, who was an ancestor of 7th and 8th defendants who claim jointly with the plaintiffs and not of defendants Nos. 1 to 6 who dispute their claim, and may possibly have been constructed on behalf of both the plaintiffs and defendants. Then we have the Will of Muthiah Mudaly by which he purported to bequeath certain shares in the land A and the tank B, which is clearly the assertion of claim to share in the water of the tank B as of right. Then there is evidence that the plots in A purchased in the name of the plaintiffs and defendants ancestors have been so completely thrown into one that the boundaries of the different plots are no longer distinguishable and that the suit of one of the parties for the recovery of his particular plot was dismissed, on the ground that it was not possible to identify it in view of the fact that all the separate plots had been thrown into one.

(3.) The evidence as to the payment of quit-rent for the tank B and the enjoyment of the produce of the trees on B is conflicting, as some of the plaintiffs witnesses say the quit-rent was paid by the headman for the time being and that the produce of the trees was enjoyed by the co-sharers according to their shares. On the other hand, defence witness No. 1 denies this and produces a bundle of quit- rent receipts, but he is an unreliable witness and the receipts do not show by whom the quit-rent was actually paid before the disputes which gave rise to this litigation.