The main legal point established in the judgment is the interpretation of the rights to use a common well and channels for taking water, as well as the application of the Easements Act, Section 41 in rejecting the defense plea of extinguishment of rights due to non-user.

1. This Second appeal has arisen from a common judgement of the learned Subordinate Judge, Namakkal, made in A.S. Nos. 39 and 44 of 1990.

2. The respondents herein filed a suit seeking declaration that the plaintiff was entitled to 1/6th share in a common Well shown as “W”; that the plaintiffs were entitled to take water to their lands shown as “P” through the channel shown as A3 and A4; that the defendants 1 to 4, 6 to 9 were not entitled to take water from the said common well only to the land situate in S. No. 340; that the defendants should not prevent the plaintiffs taking water from the common well to their lands; that the plaintiffs are entitled to take water to the lands in S. No. 29; that the plaintiffs were taking water through A, A1, A2, A3, A4 channel; that the said common well “W” is situate in S. No. 340/4 measuring 0.05 cents; that through the said channel A, A1, A2, A3 and A4 which are situate in the lands of defendants 1 to 4, 6 to 10, the plaintiffs are taking water from the common well to their lands; that the first plaintiff was taking water from the year 1956 when he got the property through settlement executed by his grand father; that while so, the defendants denied the rights of the plaintiffs taking water from the common well and they have obliterated the channel; apart from that, the defendants were attempting to take water to different lands to which they were not entitled to apart from the land in Survey Field No. 340 to which they were entitled to. Under such circumstances there arose a necessity for filing a suit.

3. The suit was resisted by the defendants stating that the land situate in Survey Field No. 340 originally belongs to a family; that a common well situate in S. No. 340/4 was used by all the family members to take water for all the fields situate not only in S. No. 340 but for the other fields also; that it is not correct that the first defendant executed a settlement deed in favour of the second plaintiff; that it is true that the first plaintiff was entitled for 1/6th share in the common well “W”, but it is not correct to state that the defendants have obliterated the said channel leading to the plaintiffs land; that the defendants have been taking water to all their lands apart from the survey field No. 340; that the plaintiffs are not contributing for the maintenance of the common well and the same was totally incurred by the defendants; that the right of the plaintiffs taking water from the well has been extinguished long back since they were neither using the channel nor were taking water from the well in question and thus, by non-user, the right of the plaintiffs have been extinguished long back and thus, the plaintiffs are not entitled for the relief asked for.

4. The trial court framed necessary issues, tried the suit and granted the relief in part while it disallowed the other part. Aggrieved defendants preferred an appeal in A.S. No. 38/90 in respect of the relief granted in favour of the plaintiffs, while the plaintiffs preferred A.S. No. 44/90 in respect of the disallowed part. Both the appeals were taken up for consideration by the learned Subordinate Judge jointly and a common judgment was rendered. After considering the rival submissions and scrutiny of the available materials, the learned Subordinate Judge dismissed A.S. No. 38/90 and allowed A.S. 44/90 by granting the mandatory injunction and had remitted back the matter to the trial Court for fixing the turn as to the exercise of right of the parties to take water. Aggrieved defendants have brought forth this Second Appeal.

5. At the time of admission the following substantial questions of law were framed for consideration.

“1. Whether the Lower Appellate Court is right in remanding the case to the trial Court to prescribe terms and conditions for use of the suit well without giving a finding about the extent of lands. Survey Number which are actually entitled to draw water from the suit well?

2. Whether the