No suit or application seeking restraining exercise of power conferred on the Government to be entertained.

Third parties/Ayacutdars of Meyanur and Sannendal Eri, are the appellants.

2. Respondents (8) & (9) as the representatives of Sennendal and Mayanur Eri, have filed the suit against Respondents (1) to (7), for declaration that they are entitled for unobstructed, undiminished, mamool and customary supply of water from the Pambar River to their Kanmois, and for consequential relief of permanent injunction, from interfering in any manner, either by construction across the river Pambaru in Survey No.19 or otherwise, contending that the source of supply for their Kanmais is the rain water and surplus water from Pambaru River, which is enjoyed by them from time immemorial, which is also recorded in the revenue registers, that without any notice, the defendants 1 to 3, motivated by somebody, threatening to put up construction across the river Pambaru at Survey No.19, thereby they are making an attempt to obstruct the mamool and customary supply of water from Pambaru affecting their rights also, which they have earned, which should be protected by the grant of the above said relief.

3. Defendants (1) to (3) questioning the correctness of the averments in the plaint, have resisted the suit, contending that in order to provide irrigation facility, and to ensure supply of water at all times to the suit tanks and other tanks, with an aim of equitable supply of water to all the Ayacutdars, a proposal was meted out for construction of Anaicut, for which advertisements were made, calling for objections, then considering the objections, government have proposed to construct an Anaicut at Survey No.19, which will facilitate smooth equitable, accustomed, undiminished supply of water to all Ayacutdars of lower down reaches and therefore, the suit filed by two villages in order to restrain the right of the defendants is not maintainable, thereby praying for its dismissal.

4. Defendants 4 to 7 would contend that they are also entitled to equal share in the water flows from Pambaru, that the Government is taking steps to construct Anaicut for equitable distribution of water considering the welfare of the common people, which could not be questioned by the plaintiffs, representing two villages alone.

5. The trial Court framing two issues alone, tired the case examining the plaintiffs as P.Ws.1 & 2 as well as examining four other witnesses as D.Ws.1 to 4, in addition exhibiting four documents, on the side of the plaintiffs and two documents, on the side of the defendants. The Commissioner, who had visited the disputed Anaicut, appears to have filed a report and sketch, which are exhibited as Exs.C1 to C3.

6. The learned Subordinate Judge, Pudukottai considering the customary right claimed by the plaintiffs, as well as the power and the right of the Government to regulate and distribute water equally to all the Ayacutdars, had come to the conclusion that the suit filed by the plaintiffs for injunction, restraining the Government from constructing an Anaicut is not proper and justifiable. Having concluded so, the trial Court ought to have dismissed the suit, in view of the specific prayers mentioned supra. But unfortunately, under the guise of rendering natural justice and assuming the power of moulding the relief, granted a decree in the nature of scheme, how the water from the Anaicut should be distributed and under what circumstances, the shutters in the door should be opened to let out waters, etc.

7. The affected defendants (4) to (7) by the grant of prayer, not prayed for by the plaintiffs, preferred an appeal before the District Court, Pudukottai in A.S.65/90. The Government i.e. defendants 1 to 3, who are bound to regulate the water and who are bound to obey the orders of the Court, have not questioned the findings, and in fact even after the filing of the appeal by the defendants 4 to 7, they have not filed any appeal or cross objections questioning the right of the trial Court, in granting a decree and thereby they have suffered the d