A R RAMASWAMI AYYAR Vs. HARIRAM

JUDGEMENT

(1.) In the proceedings, in which this appeal is brought from a judgment and decree of the High Court of Judicature at Madras, the appellant's father as plaintiff claimed against a defendant since deceased, who is now represented by the respondents, an injunction to restrain him from entering upon certain land of the plaintiff and cutting the bund of a watercourse so as to interfere with his rights to water. All the facts which were necessary for the determination of the rights of the parties were clearly brought out in the trial of the case by the District Munsif at Ambasamudram and are fully narrated in his careful judgment. It is in their Lordships' opinion unfortunate that in the appellate Courts in India the real issue should have been allowed to be obscured by what was, as they think, a mistaken view as to certain passages in that judgment and particularly in regard to an admission which was thought to have been made by plaintiff's counsel in the course of the trial.

(2.) The substantial facts as found by the learned trial Judge do not appear to their Lordships upon a careful review of the whole evidence to be capable of serious dispute.

(3.) The plaintiff at all material times was the owner of about 184 acres of dry and wet lands in the village of Pudapatti. The wet lands were irrigated by the water of a private tank belonging to him called the Ramagopalaperi tank, which will be referred to as the R. tank. It had been built by an ancestor of the plaintiff and received water from a pond on the plaintiff's land by means of a channel marked A, B, C, D, E, F, G in the Government Survey Plan of Pudapatti village. The water from this pond known as Kuttikulam and hereafter called K. pond tends naturally to flow south. In order to divert this water along the channel eastwards into the R. tank the plaintiff's father had built a bund on the southern side of the channel in or about the year 1888 and in this way the plaintiff's father and the plaintiff after him had uninterruptedly enjoyed the water flowing from the pond for the cultivation of their land from the year 1888 or thereabouts until in the year 1936 the events happened which gave rise to this suit.