SHANKARIAH Vs. RAMIAH

JUDGEMENT

(1.) The point for consideration in this appeal is whether the learned Subordinate Judge was right in holding that the plaintiff-respondent has a right to take water from the well situated in the land that has fallen to the share of the defendant and in awarding damages of Rs. 200/- on the ground that the appellant-defendant prevented the plaintiff from taking water to his land and thus caused his garden to dry up.

(2.) It is not disputed that the entire land which belongs to the plaintiff and the defendant who are brothers was fed not only by tank water but also by the water from the well situated in the portion of the land that has fallen to the share of the defendant. In fact there is Ex. A Uttaar copy which clearly shows that both portions are entitled to water from both sources. It has to be noticed that the defendant could only get water through a channel situated in the plaintiff's land while the plaintiff has to take water from the well situated in the land that has fallen to the share of the defendant. There is nothing to show that at the time of the partition either the right of the defendant to take water through the plaintiff's land or the right of the plaintiff to take water from the well situated in the land that fell to the share of the defendant was curtailed and in the absence of any such curtailment, it has to be taken that the two lands are entitled to take water in the manner stated in the survey records. In fact this would be the case even in a case of grant of land. As observed in -- '9 Mys LR 168 (A)':

(3.) The appeal stands therefore dismissed without notice to the respondent.