M JAYAVELU Vs. PONNUSWAMY MUDALIAR

JUDGEMENT

(1.) THIS second appeal is preferred from the judgment and decree of the learned Principal District Judge, North Arcot, Vellore dated 17.1.1990 and made in A.S.No.149 of 1989 against the judgment and decree of the learned District Munsif, Gudiyattam, made in O.S.No.2 of 1983 dated 21.12.1988.

(2.) THE plaintiffs/ appellants filed a suit seeking for declaration of the title to the suit property marked as A, B, C, D in the plaint plan with a consequential permanent injunction with the following averments. THE suit property originally belonged to one Srinivasa Mudali, Vajiram and Ramalingam and their forefathers. THEy were enjoying the same till they sold it to the plaintiffs" father S.Muthumanicka Mudaliar in the year 1956. It was a vacant site measuring 96" north to south and 28 1/2" east to west i.e., 9 1/2 yards and 32 yards. Plaintiffs and their father were enjoying the same without any interruption from anybody. In the family partition it fell to the plaintiffs" share. While so in 1965, the plaintiffs and their family started construction of a house in the property purchased. THE plaintiffs have also filed a rough plan showing the constructed portion of the house and also the disputed suit property. THE plaintiffs" house was constructed according to "Manaiadi Sastram". On the eastern side of their house, there was a house belonging to Vajiram Mudaliar and others who were the plaintiffs" vendors. Since the suit property and other property belonged to them, they had their rain water right over the plaintiffs" house. For that they were having 1 1/2" on the western side of their western wall of their house. Since the street view fell on the plaintiffs" house, they constructed their house in such a manner so as to avoid the same. That was why they have left 1 1/2" vacant site on the western side of their western wall. This was the suit property. After finishing the house construction, the plaintiffs" family constructed a drainage cement channel in the suit property marked as A, B, C, D, in the plan in the year 1967. THE portion marked as A, B, C, D, in the plan absolutely belonged to the plaintiffs and their family only. THEy have perfected their title to the suit property by adverse possession also. THE plaintiffs have no other alternative way of drainage. THE defendants were their own pangalis, and were having their vacant site on the west of the suit property. THE defendants have not objected the plaintiffs from constructing the drainage channel in A, B, C, D, portion in 1967. In fact the defendants have also assisted in putting foundation, etc. THE defendants were now estopped by their conduct from claiming any right over the suit property. For the past 15 years, the defendants have not interfered with his peaceful possession and enjoyment of the suit property by the plaintiffs. Due to the reasons best known to them, they were claiming right over A, B, C, D, portion. THE defendants were putting go-bar gas plant in their vacant site. While constructing the necessary wall, the defendants were trying to trespass into the suit property and thereby tried to dismantle the plaintiffs" drainage on 26.12.82. THE same was resisted by the plaintiffs. A panchayat was convened and on their advise the defendants" construction was stopped till the dispute was solved. THE defendants" main idea was to stop the drainage. THE defendants gas construction was on and abutting the A, B, C, D, portion. Hence the plaintiffs were obliged to file the suit for the above said reliefs.

(3.) DISPUTING all the above contention of the appellants" side, the learned counsel for the respondents would submit that the trial Court without appreciation of evidence oral and documentary has granted a decree in favour of the appellants; that when the same was appealed against, the learned District Judge has rightly set aside the same and has dismissed the suit denying the reliefs; that the appellants claimed title to the suit property by relying on the title deeds; that the Advocate Commissioner appointed by the lower Court had made inspection of the property after due notice to the parties and has filed a report; that a perusal of the report would indicate that the drainage A, B, C, D, was well outside the property of the appellants; that the lower appellate Court has rightly dismissed the suit on the ground that the appellants were not entitled to prescribe title by adverse possession as held by the trial Court, since the appellants had also claimed title over the suit property under Ex.A-1 sale deed; that the lower appellate Court was perfectly correct in holding that the respondents was not estopped from denying the rights of the appellants and thus the plaintiffs who claimed title to the property have not proved the same by adducing any evidence and in view of the same, the lower appellate Court was perfectly correct in dismissing the suit.