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Judgment
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.