Chandra Bhushan Bajpai, J.

1. By this first appeal under Section 96 of the Civil Procedure Code, 1908 (in brevity 'CPC'), appellants have challenged the legality and propriety of the judgment and decree dated 30-7-2001 passed by the Additional District Judge, Bemetara Distt. Durg, CG in Civil Suit No. 4-A/84 whereby and whereunder learned Court below has dismissed the suit filed by the plaintiffs/appellants herein for bringing the Tar in its original condition and for permanent injunction against any obstruction for irrigation from Tar and also for damages of crop. Learned court below dismissed the suit with costs as the plaintiffs failed to prove their case. As per brief facts of the civil suit filed before the Court below, the plaintiffs/appellants are holding agricultural land at village Kathiya, tehsil Bemetara which is named as Loharsahi. For its irrigation, rain water used to reach in these lands through a Tar. Said Tar was constructed by forefathers of the plaintiffs. Defendant No. 2 Kapil Narayan on account of enmity in the year 1979 damaged the Tar in question during deepening of Gatwa tank thereby the water which used to flow in the lands of plaintiffs at Loharsahi was obstructed. For this the then State Government was responsible. Hence the plaintiffs by filing this suit prayed that original position of the Tar be restored and the defendants be permanently restrained for its closure again and also plaintiffs demanded for damage caused on account of being deprived from irrigation through concerned Tar and damages for its fulfillment.

2. Before the Court below defendant No. 1 by filing the written statement denied the entire pleadings adduced by the plaintiffs and pleaded that the plaintiffs had not acquired any easementary right; the suit is time barred. Hence the suit may be dismissed with costs.

3. Before the court below, defendant No. 2 filed his written statement separately and admitted that there is no canal in the village Kathiya and in the year 1979, he conducted relief work at village Kathiya in the capacity of sarpanch and he also deepen Gatwa tank. There is no easementary right. No land of plaintiffs was irrigated through Tar and no silt used to be deposited through Tar. Village panchayat is a necessary party, no notice is sent to village panchayat and he never damaged the Tar or filled the Tar by soil. The suit is not maintainable. Hence he also prays that the suit be dismissed with costs.

4. During trial defendant No. 2 filed an application under Order 23 Rule 4 of the CPC on 16-2-1993 for making compromise with plaintiffs which was ultimately disposed of by the trial Court on 2-12-1998 with the order that the suit will continue between the plaintiff and the defendant No. 1 as the defendant No. 2 entered into a compromise with plaintiffs. The said order was never challenged and has attains finality. Thereafter this suit was tried and contested between the plaintiffs and the defendant No. 1.

5. After affording opportunity of hearing to the parties including framing of issues and opportunity of adducing evidence, learned court below dismissed the suit filed by the plaintiffs/appellants on the ground that the plaintiffs are having alternate source for irrigation. Since the work of deepening of Gatwa tank was conducted by the Panchayat and no suit is instituted for the act done bona fidely against the authorities of panchayat and as no notice under Section 80 of the CPC was given to the panchayat, the suit is time barred as per provisions of the Indian Easements Act, 1882; also the suit is time barred on the basis M.P. Panchayat Raj Adhiniyam, 1981. Hence dismissed the suit with costs.

6. Against which the appellant has preferred instant first appeal on the ground that in view of para 1 of the impugned judgment, the trial court has not understood the case of the appellants, the judgment is vitiated, it is not according to the pleadings and issues. Defendant No. 2 has the best piece of evidence for giving