JUDGMENT :

Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree of the Subordinate Court, Sankarankoil in A.S.No.69 of 2002, dated 18.12.2002 in which the learned Subordinate Court has reversed the judgment and decree of the District Munsif Court, Sivagiri passed in O.S.No.253 of 1998, dated 29.08.2002.

1. The defendants are the appellants herein.

2. The plaintiff filed O.S.No.253 of 1998 before the District Munsif Court, Sivagiri for declaration that the 3rd schedule channel is a common channel for the plaintiff and the defendants and prayed for consequential injunction restraining the defendants from interfering with the enjoyment of the said channel. The plaintiff further prayed for a mandatory injunction directing the defendants to restore the 3rd schedule channel to its original possession. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.69 of 2002 before the Sub Court, Sankarankoil. The appeal was allowed granting a decree in favour of the plaintiff. As against the same, the present second appeal has been filed by the defendants.

3. The plaintiff has contended that the 1st schedule property is a common Well for the plaintiff and the defendants. According to the plaintiff, the 2nd schedule property belonging to the plaintiff is entitled to receive water from the 1st schedule common Well. The plaintiff further contended that 3rd and 4th items in the 2nd schedule property are located beyond the properties belonging to the defendants. Hence, there is a channel from the 1st schedule Well connecting 3rd and 4th items in the 2nd schedule property.

4. The defendants have obliterated the said channel and hence, prayed for mandatory injunction to restore the said channel. The defendants contended that the alleged Well in the 1st schedule property has got silted up 40 years back and no one is drawing water from the said 1st schedule Well. The defendants further contended that at no point of time there was a channel connecting the 1st schedule property with the 3rd and 4th items of the 2nd schedule property. The defendants further contended that the plaintiff is attempting to create a new channel over the properties of the defendants and the existing 3rd schedule channel is only an imaginary property.

5. The trial Court after considering Exhibits A1 and A2 sale deeds in favour of the plaintiff came to the conclusion that the 3rd schedule channel runs across the properties of the defendants. Hence, unless the plaintiff establishes his right to take water through the channel running across the property of the defendants, the plaintiff will not be entitled to any decree. The trial Court also found that under Exhibits A1 and A2 sale deeds, there is no reference about the suit 3rd schedule channel. The trial Court also found that since the Well has got silted up long back, the contention of the plaintiff that he is entitled to draw water from the said silted up Well to his 3rd and 4th item in the 2nd schedule property is not believable. The trial Court further found that the plaintiff has not sure about his case whether he is claiming right over 3rd schedule property on the basis of Exhibits A1 and A2 title deeds or on the basis of easementary rights. The trial Court found that even assuming that the plaintiff has been enjoying the 3rd schedule property from the year 1976, 20 years have not expired when the present suit was filed. The trial Court also found that even Exhibit A1 sale deed refers the suit 1st schedule Well as an obliterated Well. In view of the above said findings, the trial Court dismissed the suit.

6. The First Appellate Court after going through the oral and documentary evidence, came to a conclusion that the plaintiff is entitled to draw water from the 1st schedule Well to the 3rd and 4th items of the 2nd schedule property. The First Appellate Court also found that there is no other water source for the plaintiff other than the 1st schedule Well. The F