EASWARAN CHETTIAR Vs. VALIA MANNADIAR

JUDGEMENT

(1.) THIS is an appeal by the first defendant against the decree and judgment of the learned Subordinate Judge of South Malabar, Palghat restraining him by an injunction from interfering with the plaintiff's right to take the waters of the irrigation system emanating from the dam in Walayar river and also the decree for damages passed against him.

(2.) THE case of the plaintiff was that the suit properties, and certain other items situated in Cochin State originally belonged to the first defendant's tarwad. A portion of the said properties called the Anakkal Challa forming; part of the bigger block called the Konganpara lands had been demised On Saewathom tenure by the first defendant tarwad in favour of its other member one Parukuty Mannadisayar, a sister of the first defendant. The first defendant and his sister hypothecated all their right, title and interest in the said properties to one Doctor Subramanin Iyer under a simple mortgage dated 20 -7 -1931 for about Rs. 30.000/ -. On 26 -11 -1031, there was a Further simple mortgage over the said items in favour of one Ramaswami Iyer. The later filed O. S. 79/33 sub -court, Palghat and obtained a decree for sale to realise his mortgage amount. To discharge this decree -debt and other amounts due to the first mortgagee, the first defendant and his sister again executed in favour of On first mortgagee', Mr. Subramania Iyer On 24 -9 -1934 a possessory mortgage for about Rs. 40,000/ - and She mortgagee was put in possession of the entire properties. In the said mortgage -deed, the first defendant and his sister have stated that the mortgagee is entitled to take, use and enjoy the water of the irrigation Chals appurtenant to the mortgaged properties without any interference.

(3.) THE said Subramania Iyer ultimately on 3 -4 -1942 sold the suit properties to the plaintiff who thus became the owner of the properties and as such the person in possession and enjoyment of the same,