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Mukkoosa Nair Veetil and anr. Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in34Ind.Cas.541
AppellantMukkoosa Nair Veetil and anr.
RespondentThe Secretary of State for India in Council
Excerpt:
civil procedure code (act v of 1908), order vi, rule 17 - plaint, amendment of--declaration of easement to take water by erection of dam across river, suit for--proof of permissive user--conversion of suit into one for title to river--bed, whether can be allowed. - .....lastly, although the question is admittedly one of great importance, there is very little evidence about it on record. in these circumstances we are not prepared to allow the plaint to be amended and framed as a suit on title. we accept the finding that no easement was proved, as the enjoyment was permissive, and dismiss the appeal with costs.
Judgment:

1. The plaint seeks for a declaration of the plaintiff's right of easement and damages for interference therewith. The first issue raised the question whether the plaintiff had acquired a prescriptive right to take water by building a dam across the river. The order of remand of Sankaran Nair and Sadasiva Aiyar, JJ., only directed the Judge to return findings on the issues and on any other issues he might frame and did not alter the nature of the suit, and no other issues were framed nor was the plaint amended. The District Judge found that no easement had been acquired by the plaintiff as the dam was erected by permission of the defendant and there is evidence to support the finding. He only discussed the question of title to the bed of the river with reference to the period in which a prescriptive right could be acquired. On the finding that the dam was erected by permission there was no question of easement and the suit must fail, unless we are prepared to treat it as a suit for declaration of title to the riverbed and consequential relief. This is quite inconsistent with the plaint, and moreover the Jenmi, who is the party most interested in the question, is not a party to the suit and our decision would not be binding on him. Lastly, although the question is admittedly one of great importance, there is very little evidence about it on record. In these circumstances we are not prepared to allow the plaint to be amended and framed as a suit on title. We accept the finding that no easement was proved, as the enjoyment was permissive, and dismiss the appeal with costs.


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