RAJU NAICKER Vs. ANANTHAKRISHNA NAICKER

JUDGEMENT

(1.) THE plaintiff is the appellant. He filed the suit for a declaration of his right easement through the channel marked as A, B, C, D, E in the plaint plan and as described the Schedule to the plaint, for an injunction retraining the defendants from interfering the enjoyment and for a mandatory injunction directing the defendants to restore the schedule channel shown as A, B, E, F in the plaint plan. THE case of the plaintiff is that purchased an extent of 2 acres and 67 cents in S.Nos.246/1 and 248/4 from Tiripurasundari Ammal for Rs.1,000 under the registered sale deed dated 4.6.1959. It is also his case he purchased another extent of 49 cents to the south of the said 2 acres and 67 cents and thus he was entitled to an extent of 3 acres and 15 cents in that area. According to under the sale deed in his favour, he was given right to take water from the maduvu on north through a channel to the east of the land purchased by him as described as A, B, in the plan. He said that he was enjoying the channel ever since his purchase and it was easement by grant as well as necessity. His further case is that on account misunderstanding with defendants, who are father and sons, are attempting to efface channel and they had obliterated A, B, E, F in the plaint plan. Hence he prayed for the as set out earlier.

(2.) THE defendants contested the suit denying the claim of the plaintiff contending plaintiff had no right whatever, and there was no channel in existence as claimed plaintiff and claiming title under Exs.B-2, B-3 and B-1, dated 9.7.1962, 17.7.1962 9.10.1972 respectively.

(3.) EVEN at the outset it should be said that the conclusion of the lower appellate court, say the least, is perverse. The learned Subordinate Judge has closed his eyes to the staring on the face of the court and has placed reliance on irrelevant matters to hold the plaintiff.