The court affirmed the customary easementary rights of the plaintiff to draw water through the Suit Property, as supported by statutory provisions and lack of evidence from defendants to refute this right.

JUDGMENT :

This Second Appeal is directed against the Judgment and Decree dated December 11, 2014 passed in A.S.No.38 of 2011 by the 'Subordinate Court, Mannargudi' [‘First Appellate Court' for brevity] confirming the Judgment and Decree dated January 28, 2011 passed in O.S.No. 68 of 2006 by the 'District Munsif Court, Mannargudi' ['Trial Court' for brevity].

2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

Case of the Plaintiff:

3. The plaintiff has filed the Suit seeking the relief of declaration that the plaintiff has got customary easementary right to draw water for her land through the Suit Property, consequential permanent injunction restraining the defendants from constructing any compound wall or any other masonry structure in the Suit Property or in any way interfering with the plaintiff’s enjoyment of the Suit Property as field bothie (Kanni) for irrigating her lands, and for costs.

3.1. The plaintiff purchased the properties situated in Survey Nos.829/3, 830 and 836, which are included in the Ayacut of Mannargudi channel, by way of registered Sale Deed dated October 25, 1990 from one Venkatachalam. The lands owned by the defendants are also included in the Ayacut in Mannargudi channel.

3.2. The Suit Property is situated in Survey No. 829/1A (Old S.No.829/1). It is a field bothie (Kanni) measuring 30 feet in length and 5 feet in width, totally an extent of 150 sq. ft., running through the patta lands of the defendants. It is described as ABCD in the rough sketch filed along with plaint. The Suit Kanni is an irrigation source for the plaintiff’s patta lands in T.S.Nos.829/3, 830 and 836 and defendants’ patta lands in T.S.Nos.829/2, 829/1B. The Suit Kanni branches off from a branch of the Main Canal and is in use for several decades. It is customary in the village for lands being irrigated through field bothies running in patta lands.

3.3. Before selling the land to defendants 2 & 3, the first defendant attempted to obliterate the Suit Kanni. In this regard, the Tahsildar passed an Order ascertaining the plaintiff’s right over the Suit Property. The first defendant sold the southern portion of T.S.Nos.828 to third defendant and his land in Survey No.829/1 to second defendant. The first defendant passed away on February 5, 2008 and the defendants 4 to 9 are his legal heirs.

3.4. On June 21, 2006, the defendants 2 and 3 attempted to obliterate the Suit Kanni by raising a compound wall over the Suit Property by taking advantage of the fact that their plot is situated on either side (North and South) of Suit Property. Their main motive is to force the plaintiff to sell her lands to them. Hence the Suit for declaration of customary easementary right, permanent injunction and other reliefs.

Case of the Defendants:

4. The sum and substance of the written statement filed by the defendants is that there is no such field bothie (Kanni) in the defendants’ lands i.e., T.S.No. 828 and 829/1, even as per the revenue records. Further, when the same was sold away to the defendants 2&3, the plaintiff cannot restrain them from constructing compound wall at their place. Further, the Order passed by the Mannargudi Tahsildar is not a legally maintainable one. He cannot pass any Order arbitrarily without enquiry, he has no authority to order to form a new channel. The Order is not binding on the defendant