Water channel meant for public use can not be fenced by the plaintiff.

This appeal is directed against the judgment and decree dated 9.4.2001 in A.S.No.37 of 1995 on the file of the Subordinate Judge, Poonamallee confirming the judgment and decree dated 30.8.1994 in O.S.No.582 of 1983 on the file of the District Munsif, Poonamallee.

2. The unsuccessful plaintiff, who lost the suit both in the trial Court and in the first appellate Court, is the appellant herein. The suit was filed for permanent injunction restraining the defendants and their men from removing the fencing put up by the plaintiff around the suit property including the portion marked as ABCD in the plaint plan. According to the plaintiff, it has purchased the lands measuring 35.55 acres in Nolambur village, Saidapet taluk and there is a water channel from Nolambur lake and the said channel is running in the middle of the lands purchased by the plaintiff. According to the plaintiff, the plaintiff and its predecessors-in-title have been enjoying the channel for the past several decades. According to the plaintiff, the plaintiff has put up fence around its lands including the channel and the plaintiff has been in possession and enjoyment of the channel along with the lands and the Government also issued B-Memos showing that the plaintiff has been enjoying the channel. The suit has been filed on the ground that the defendants have attempted to interfere with the plaintiff's possession and enjoyment of the channel. The plaintiff has also referred to an earlier suit in O.S.No.1118 of 1982 on the file of the District Munsif, Poonamallee and it is stated that there was a compromise and on the basis of the compromise, the suit was dismissed as withdrawn with the liberty to file a fresh suit. According to the plaintiff, the defendants have been taking steps to remove the fencing put up by the plaintiff around the channel portion and therefore the suit has been filed for permanent injunction.

3. The defendants, viz., the Government of Tamil Nadu denied all the allegations. In the written statement, it is stated that the channel is situate in Survey Nos.143/2,146/3, 147/2, 147/3 and 148 and the channel passes through the patta lands belonging to the plaintiff. According to the defendants, the channel is meant for all persons. It is stated by the defendants that the plaintiff has encroached upon the channel poramboke by putting fence around the same and the plaintiff has been removing earth therefrom. It is stated that the fence was removed on 28.7.1982 to allow the usage by others. It is also stated that the plaintiff was served notices for eviction of encroachment and the defendants have got every right to evict the plaintiff from the poramboke land of the defendant.

4. On the above pleadings, necessary issues were framed and the learned District Munsif has found that there are no substantial evidence to show that the suit channel was in possession and enjoyment of the plaintiff. The trial Court noticed the documents, Exs.A-1 to A-5 and found that they do not refer to any survey number. The trial Court also held that the plaintiff has not proved that he was in possession of the channel exclusively and the plaintiff is not entitled to seek injunction against the Government who is the title holder. Though the trial Court has not accepted the plea of the defendants that the suit was barred by res judicata, it has found as fact that the plaintiff has not furnished the survey numbers in the plaint in which the suit channel is situate, nor the plaintiff has proved by way of any oral and documentary evidence that the plaintiff is in possession and enjoyment of the suit channel and dismissed the suit for injunction. The above judgment was confirmed by the first appellate Court. It is against the judgment and decree of the first appellate Court, the present second appeal has been filed.

5. The appeal comes up for admission. I heard Mr.K.V.Subramanian, learned counsel for the appellant. His submission was that the plaintiff has proved by documen