JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the decree and judgment dated 07.10.1999 passed in A.S. No.5 of 1999, on the file of the Principal District Court, Nagapattinam, upholding the decree and judgment dated 22.10.1998 passed in O.S. No.6 of 1997, on the file of the District Munsif Court, Thiruthuraipoondi.)

1. The unsuccessful plaintiff before both the courts below has filed the present second appeal.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their ranking in the present appeal would also be indicated.

3. The plaintiff filed a suit in O.S.No.6 of 1997 before the District Munsif, Thiruthuraipoondi, seeking for a declaration that he has easementary right over the channel described as ‘B’ schedule property in the plaint schedule and for a consequential relief of mandatory injunction directing the defendants to restore the channel in its original form at their own costs or in the alternative pass a decree of permanent injunction restraining the defendants from in any manner interfering with the plaintiff’s right to draw water from the channel by laying a pipeline as per the agreement dated 15.08.1996 and for costs.

4. The case of the plaintiff in nutshell is as follows:

The ‘A’ schedule property measuring 0.44 cents in Survey Number 97/1 of Veppancherry Village, Thirthuraipoondi Taluk, absolutely belongs to the plaintiff and the ‘B’ schedule property which is a water channel measuring 100’ X 2’ X 1’ situate in Survey Number 97/2 Veppancherry Village, Thirthuraipoondi Taluk, and the property on the western side of the said channel belong to the defendants. Both the properties were originally owned by common ancestors of plaintiff and the defendants. The plaintiff who is cultivating his land (‘A’ schedule property) has no other source of supply of water for irrigating his land and he has been drawing water only from ‘B’ schedule water channel. While so, the first defendant constructed a house on the eastern side of the ‘B’ schedule property and the second defendant destroyed the channel on 06.08.1996 & 07.08.1996 and filled the same with sand. All his complaints before the police and the revenue officials went in vain. However, in the presence of some mediators in the village, the plaintiff and the defendants entered into an agreement on 15.08.1996 (Ex.A1) wherein the defendants agreed to allow the plaintiff to draw water from the channel by laying a pipeline through the land of the defendants. Subsequently, the defendants prevented the plaintiff from drawing water from the suit channel. Hence, the suit was filed by the plaintiff for the reliefs as stated above.

5. The suit was resisted by the defendants on the following grounds:

(1) No agreement was entered into between the plaintiff and the defendants on 15.08.1996 as alleged by the plaintiff and whatever was obtained was under coercion in the police station.

(2) 45 cents out of 91 cents in ‘B’ schedule property was gifted to the second defendant by the first defendant even during the year 1992 who in turn constructed his house in the year 1993.

(3) Thirthuraipoondi - Pudukottai Road lies on the western side of the ‘B’ schedule property and on further west there is a drainage channel which is called as ‘pandi vaikkal’ and the said channel is much lower in level compared to the properties of the plaintiff and the defendants. The plaintiff’s contention that the water from the said drainage channel flow into ‘B’ schedule water channel and that the plaintiff was irrigating his land from the same is therefore, an imaginary one.

(4) No documentary evidence was adduced by the plaintiff to show the existence of the channel.

(5) There is a common water channel on the eastern side of the plaintiff’s and the defendants’ lands and both of them were cultivating their respective properties by drawing water from the said channel.

(6) The defendants never destroyed the ‘B’ schedule cha