CHINNAPPAN ALIAS ANNAVI Vs. VEERAMALAI ALIAS THANGARAJ

JUDGEMENT

(1.) THE defendant in O.S. 99 of 1991 on the file of District Munsif Court, Manapparai has preferred the present Second Appeal aggrieved against the judgment and decree made in A.S. No. 201 of 1992 on the file of 1 Additional Sub Court, Trichy dated 26.03.1993 reversing the judgment and decree of the trial court dated 31.07.1992.

(2.) THE case in brief is as follows: " THE plaintiff filed a suit for permanent injunction. THE suit property belonged to the joint family of the plaintiff and the plaintiff has been in possession and enjoyment of the same and paying all taxes and charges. He had effected improvements in the suit property at enormous cost. THE defendant is a stranger to the suit property and he cannot claim any interest. THE defendant owns land adjacent to the suit property. On 29.03.1991 the defendant attempted to channel ise water from his well through the suit channel and it was resisted by the plaintiff. THE suit property and the defendant's property are separate entities. Further, the suit properties are not servient heritage so as to be imposed with qualified right in favour of the defendant. THE defendant is persisting in his act and, hence, the suit.

(3.) THE trial court dismissed the suit filed by the plaintiff, whereas the lower appellate court reversed the same and gave a decree in favour of the plaintiff. Learned counsel for the appellant/defendant contended that the lower appellate court failed to note that the appellant is using the channel to irrigate his lands even on the date of filing of the suit. In the absence of any pleading in the plaint that the right to use the channel leading from the Ayacut well had been extinguished. THE lower appellate court erred in relying on the evidence of P.W.1 that the right to use the well had been extinguished. Having admitted that the common well in 293D belongs to the plaintiff and the defendant, the lower appellate court erred in holding that the defendant is not entitled to use the channel leading from the old well. It also failed to note that ABCDEF channel passes through 294 2F which admittedly belongs to the defendant/appellant. THE channel also is jointly owned by plaintiff and defendant and the plaintiff cannot claim any exclusive right over the same. THE lower appellate court also erred in granting the relief of injunction mainly on the basis of absence of proof of easementary right as pleaded by the defendant. Further more, the substantial question of law raised by the defendant is whether the right to use the channel by himself has been extinguished in the absence of any prayer for the relief of declaration in the plaint. THE lower appellate court erred in not exercising its jurisdiction properly as it fails to consider certain vital admission made by the plaintiff that the channel also passes through the land of the defendant.