KRISHNASWAMY Vs. MUNGOORA GOUNDER

JUDGEMENT

(1.) The Deceased First Appellant/Plaintiff, during his life time, has filed the present Second Appeal before this Court and during the pendency of the Second Appeal, in lieu of his death, his Legal Representatives have been impleaded as his Legal Representatives and brought on record as Appellants.

(2.) The short facts of the Appellants' case are as follows: The Deceased First Appellant/Plaintiff's Grandfather was one Thippanna Gowder. The Deceased First Respondent/First Defendant's Grandfather was Mungoora Gowder. Thippanna Gowder and Mungoora Gowder were brothers. The Second Respondent/Second Defendant is the wife of the Deceased First Respondent/First Defendant. The plaint schedule A and B properties initially belonged to the great Grandfather of the Deceased First Appellant/Plaintiff and the Deceased First Respondent/First Defendant. The great Grandfather of the First Appellant/Plaintiff left behind him sons one Thippanna Gowder and Mungoora Gowder. Thippanna Gowder left a son by name Perumal Gowder. Perumal Gowder left three sons 1)Ramaswamy 2)Thippanna and 3)Krishnaswami. Mungoora Gowder left five sons 1)Kalappa Gowder, 2)Thippanna Gowder, 3)Nanjundan, 4)Marudappan and 5)Vellingiri. Kalappa Gowder left a son Mungoora Gowder, who is the Deceased First Respondent/First Defendant.

(3.) According to the Appellants, the ancestors of the Deceased First Appellant/Plaintiff and the First Respondent/ First Defendant had effected an oral partition of their properties and some portions of the properties were left as common properties for convenient enjoyment of the other properties. The plan annexed to the plaint shows the ancestral property viz., the portions which were allotted to co-sharers and other portions were retained as common for joint enjoyment by co-owners. The houses allotted to the Deceased First Appellant/Plaintiff and Deceased First Respondent/First Defendant are shown in the plan. For smooth ingress and egress and for free flow of men and cattle, some portions were held in common and the same were described as common place in the plan. There are openings at the points in X and Y in the plaint plan so as to enable the sewage and other water to pass through the house of the Respondents/ Defendants so that the water may reach the common space. The Appellants/Plaintiffs are entitled to use the common space shown as A B C D and A B E F G in the plan and they have access to the Drain and other water to pass through the points X and Y.