P S ARAVAMUDA AYYANGAR Vs. AVSRINIVASA CHETTIAR

JUDGEMENT

(1.) This is an appeal from a judgment of Jackson, J., who, in second appeal, reversed the decrees of the two lower Courts and dismissed the suit under appeal with costs.

(2.) The facts of the case are as follows: The plaintiff in the suit, the appellant here and defendant 1 are brothers. In 1904 there was a partition among the plaintiff, defendant 1 and their father, each of them then getting one-third share. In the partition amongst other lands, Survey No. 276 fell to the plaintiff's share and Survey No. 282 to that of defendant 1. After this partition, until December 1918, the plaintiff and defendant 1 enjoyed the properties in common and during this period sold some of the lands and also jointly acquired other lands. In December 1918, by Ex. J there was a partition between these two and in that partition Survey No. 276 was taken by the plaintiff and Survey No. 282 by the first defendant. The plaintiff's case was that his land Survey No. 276 was being drained by means of a channel passing underneath a channel belonging to Government by means of a syphon sluice through which the water passed on to Survey No. 282 and through a channel conduit to the farther side above, it emptied itself into another channel. He claimed that his field was being drained in this way previous to 1904; and he claimed a quasi-easement under Section 13(f) Easements Act. It is clear from the evidence that there had been for a very long time an old syphon sluice which the plaintiff's father at his-own cost re-built in about 1911. In 1919 defendant 1 obstructed the sluice and destroyed the channel with the re- suit that the plaintiff petitioned to the revenue authorities in January 1921, requesting them to get the obstruction removed and the channel restored; but the Revenue Divisional Officer refused to interfere informing the plaintiff that he might, if so advised, institute a civil suit and establish his right in regard to the drainage of his land. Hence the suit under appeal.

(3.) The District Munsif found that the syphon sluice came into existence in 1905 and was in existence from 1905 till 1918 and that the plaintiff's was entitled to the right claimed. The Subordinate Judge did not agree with this finding being of the opinion that the syphon sluice and the channel came into existence before 1905 and had been in existence for at least 25 years before the date of the suit which was filed in July 1923, and there is plenty of evidence to support that finding.