E.S.VADIVEL CHETTIYAR Vs. ARUMUGAM

JUDGEMENT

(1.) S.A.No.1625 of 2010: This second appeal is against the judgment in first appeal in A.S.No.31/2009 reversing the judgment of the trial Court passed in O.S.No.254/1995. The said suit was filed for permanent injunction by P.Arumugam, S/o Perumal Chettiar, against E.S.Vadivel Chettiar and his two sons.

(2.) According to the plaintiff, the suit property, which is more fully described in the plaint schedule is house and vacant site around it. The plaintiff and his 2 brothers purchased the suit property and other properties for valuable consideration from one Kolundai ammal, under a registered deed dated 07/05/1972. Subsequently, his eldest brother sold his 1/3 rd share to him and other brother. Thus, he and his immediate elder brother became the absolute owner of the entire property. On 10/03/1994, under a registered partition deed, the plaintiff and his brother partitioned the property. The suit property was allotted to the plaintiff. Even at the time of partition, there was a titled house assessed to tax. After partition, the assessment was transferred from his elder brother name to his name. The plaintiff sunk a borewell in the vacant portion of the suit property. On the southwestern corner of the suit property, he constructed two attached bathrooms-cum-lavatories and a store room. A overhead tank on the ceiling of the rooms to store water drawn from the borewell. On 24/06/1995 when the plaintiff attempted to provide outlet pipes from the two bathrooms across the suit property along its southern boundary to reach the Panchayat Board road on the east and the main road further south of the Panchayat Road, the defendant E.S.Vadivelu Chettiar and his men are obstructing the plaintiff from laying underground pipeline on the southern side of his land from the point 'CD' shown in the plaint sketch.

(3.) According to the defendants, who are the father and sons, the vendor of the plaintiff nor the plaintiff have no right in the suit property. The description of the suit property shown as 'B' schedule in the partition deed between the plaintiff and his brother on 10/03/1994 is not correct and true. The construction of bathroom cum lavatories and overhead tank in the suit property are admitted. But, the claim of the plaintiff that he has already laid pipe line along 'ABC' points is denied. The whole portion marked as 'ABCD' is the portion encroached upon the defendants property. It is true that when the plaintiff tried to put up underground pipeline, it was prevent by the defendants not by violence as averred by the plaintiff, but only objected orally for the unlawful encroachment of the plaintiff in the defendants land. As a matter of fact, the defendants had filed O.S. 131/1995 for grant of declaration of title and permanent injunction from interfering with their possession and enjoyment. Also for a mandatory injunction for demolition of the plaintiff's house portion build in the defendants vacant site. After knowing the filing of the suit in O.S 131/1995 and obtained ad-interim injunction in I.A 509/1995, the subsequent suit is filed with untenable and false claim.