JUDGMENT

Challenge in this second appeal is made to the judgment and decree dated 27.10.2005 passed in A.S.No.35 of 2004 on the file of the Subordinate Court, Dharmapuri, reversing the judgment and decree dated 09.07.2004 passed in O.S.No.12 of 1992 on the file of the District Munsif Court, Harur.

2.For the sake of convenience, the parties are referred to as per their rankings in the trial court.

3. The plaintiff in O.S.No.12 of 1992 is the appellant in the Second Appeal.

4.Suit for declaration, mandatory injunction and permanent injunction.

5. The case of the plaintiff, in brief, is that he is the absolute owner of the lands in Survey Nos.181/2C, 181/14, 183/7 of the suit village and enjoying the same by obtaining the patta and paying the kists, etc., and the abovesaid lands and the other lands belonged to the ancestors of the plaintiff and the defendants 1 and 2 are the adjacent owners and further put forth the case that there is a well in Survey No.181/2C and the plaintiff had been drawing water from the said well and irrigating his other lands and the irrigation channel passes in between the land of the defendants 1 and 2 in Survey Nos.183/1B and 181/8B and then to the lands of the plaintiff' and there is a pathway also along with the irrigation channel and the abovesaid irrigation channel and the pathway had been used by the plaintiff and his ancestors for more than 100 years continuously without any interruption and the irrigation channel is the only way for taking water to the plaintiff's land, which is shown as ABCD in the rough plan attached to the plaint and the same is the suit property and thus the plaintiff and his ancestors had perfected their right of easement over the suit property by way of prescription by using the same over a period of 100 years and also other than the irrigation channel, there is no other channel and pathway for taking the water to the plaintiff's land. While so, the defendants, out of jealousy, attempted to interfere with the plaintiff's right of enjoyment over the suit irrigation channel and pathway one way or the other, without any authority or entitlement, and also endeavoured to obliterate the suit channel by removing the stone and mud, etc., and after the institution of the suit, the defendants had damaged the suit channel and hence, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.

6. The defendants resisted the plaintiff's case contending that it is false to state that the plaintiff is irrigating his lands from the well in Survey No.181/2C and as the well in Survey No.181/2C has no sufficient source of water, the plaintiff has resorted to dig new borewells in his lands and further disputed the claim of the plaintiff that the water has been taken through the suit irrigation channel lying in between the lands of the defendants as alleged in the plaint and according to the defendants, there is no irrigation channel or pathway in their land as shown as ABCD in the plaint. Only with a view to create a new channel in the lands of the defendants, the suit has come to be laid by the plaintiff falsely and accordingly denied the case of the plaintiff that he and his ancestors had been enjoying the suit irrigation channel for more than 100 years and thereby prescribed the right of easement by prescription and also seeking the easementary right by way of necessity and disputed the case of the plaintiff that they had endeavoured to disturb the plaintiff's possession and enjoyment of the suit irrigation channel one way or the other and that they had destroyed the channel after the institution of the suit as claimed in the plaint. The documents projected do not disclose the existence of the channel and therefore, according to the defendants, the plaintiff is not entitled to seek any of the reliefs claimed in the plaint and sought for the dismissal of the plaintiff's suit.

7. In support of the plaintiff's case P.Ws.1 to 2 were examined and Exs.A1 to A7 were ma