VALIA MANNADIAR Vs. EASWARAN CHETTIAR

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 plaintiffs 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 defendants 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 Parukutty 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 Subramania Iyer under a simple mortgage dated 20-7-1931 for about Rs. 30,000/-. On 26-11 -1931, there was a further simple mortgage over the said items in favour of one Ramaswami Iyer. The latter 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 the first mortgagee, Mr. Subramania Iyer on 24-9-1934 a possessory mortgage for about Rs. 40,000/- and the 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.) In the meanwhile, in respect of the balance amount due under the decree in O.S. 79/1933, the decree holder therein brought the properties to sale and the properties were actually sold on 20th December, 1934 and purchased by the usufructuary mortgagee, Doctor M. K. Subramania Iyer and he obtained a sale certificate on 11-3-1935 and also got delivery of the properties including all rights to water specified therein.