Points arising during course of argument may be discussed also.

S. Swamikkannu, J.

1. An interesting point has been raised in this appeal whether with respect to the water available in a well which is situated in S. No. 390 -3 and its irrigational potentialities had been considered in favour of the appellant herein there can be a restriction to the extent to which that water in the well cart be made use of.

2. It is common ground that S. No. 392 belongs to the plaintiff which is known as Rangappa flowder's land and which is also shown in yellow colour in the Commissioner's plan. The defendant's land has been coloured with green pencil-S. No. 390/1 belongs to one Krishnappa Gowder and it is known as Krishnappa Gowder's land under the cultivation of the plaintiffs. The rough plan of the Commissioner shows the existence of this well, water of which is available for cultivation. It is with respect to the land beyond the line F.I. marked in the Commissioner's plan on the eastern side that there is a dispute now. The case of the appellant is that when once it has been held that the water available in the well in question can be utilised for irrigational purposes by the appellant, there is no question of any restriction prescribed for its extension to the land to which the water in it can be utilised either by baling out the water by way of installing an electric motor or by way of a country picots. It is relevant in this connection to note that the rough plan Exhibit C-2 is self-explanatory and as such needs no further elucidation. As a matter of fact the suit itself was laid before the trial Court for the declaration that the plaintiffs are entitled to take water from the suit well to irrigate S. No. 392 and for consequential injunction-The trial Court held that the defendants cannot obstruct the plaintiffs from using the motor in service connection No. 64 to irrigate the eastern portion of S. No. 392 also by the suit well. It has also held that the first plaintiff will not be entitled to irrigate S. No. 392 through service connection No. 65.

3. Of course no order can be pronounced by any Court of law against any statute law which has got existence on statute book. Still relating to the distribution of electric power and therefore when it is the case of either side that an electric motor had been installed in the well in question and the parties to the suit are taking water from it in pursuance of the regulations of the Department viz., the Electricity Board in turn is also governed by the provisions of the Act relating to the same.

4. Now reverting back to the point in issue before this Court which has been framed as a substantial question of law which can be usefully extracted now at this stage viz., whether the right to take water from the well to irrigate a particular land can be lost by non-user for any length of time. It is relevant to note that the evidence available on record are Exhibit A-l to A-61 together with the evidence of the first plaintiff as P.W. and one Perumalsamy as P.W.2 on behalf of the plaintiffs and on behalf of the defendants the first defendant Sundarammal examined herself as D.W.1 filing no documents on her side. It is relevant to note that a Commissioner had been appointed in this case and the report and plan of the Commissioner are Exhibits C-l and C-2. As already stated the well is situated in S. No. 390-3. It is in the portion wherein groundnut and thuvarai are cultivated. That is the portion wherein it is now desired by other side viz., the respondent in this Appeal that there should not be any supply of water from the well.

5. Mr. G.M. Nathan, learned Counsel for the appellant contends that though the question of law as framed at the time of admission of the second appeal is not having in its view the present point that is raised but yet by means of the proviso to Section 100 of the Code of Civil Procedure this Court has got every liberty to discuss the point raised because it is really a substantial question of law which requires determination in the second