LAKSHMANA KONAR Vs. NAMALWAR KONAR

JUDGEMENT

(1.) This Second appeal is preferred against the judgment and decree dated 7-2-1990 made in A.S. No. 95 of 1987 by the Court of Subordinate Judge, Tuticorin, thereby setting aside the judgment and decree dated 23-3-1987 made in O.S. No. 234 of 1983 by the Court of District Munsif, Srivaikundam.

(2.) Tracing the history of the above second appeal coming to be preferr-d. it comes to be known that the first respondent herein has filed the suit for permanent and mandatory injunction, on averments such as that the plaint schedule well belongs to him and the defendants, wherein the plaintiff is entitled to 11/48 shares, the first defendant is entitled to 2/48 shares, defendants 2 and 3 together are entitled to 5/48 shares, the 4th defendant is entitled 18/48 shares and the 5th defendant is entitled to 12/48 shares; that there were several prior litigations viz., O.S. Nos. 223/73, 254/74 and 20/75 between the parties with respect to the drawing of water from the well and now the parties are baling out water according to their whims and fancies; that during 1974-75, defendants 1 and 4 dug out a portion of the well on its north measuring 6 ft.x 51\4 x 31/4 feet and kept the rubbish nearby. Since upto 1978 there was no scarcity of water, there was no problem; that in 1979, due to scarcity of water, the plaintiff and the 5th defendant on the south of the well put up an electric motor and pump set and defendants 1 and 4 on the north of the well put up another pump set; that since water percolated in the well into the pit dug up by first defendant, defendants 2, 3 and 4 could not use the well water; that because of the skirmishes, there were criminal proceedings between the parties, that the first defendant had further dug up the pit by 1 and 1/4th ft. further deep, and hence, the plaintiff sent a notice to the first defendant, to which the first defendant sent a reply; that therefore, the 1st defendant alone has to remove the rubbish; that the 5th defendant being a cognate, he has been added as a party to the suit.

(3.) On the contrary, the first defendant in his written statement would state that in the prior litigations, the share of the parties have not been declared and they were baling out water according to their wishes are not correct; that defendants 1 and 4 did not dig the well and it is not true that the rubbish have been piled up anywhere; that this defendant denies the other allegations and the contents of his reply are true; that the parties are entitled to the respective shares and the plaintiff cannot dig the well accord ing to his wishes and he is not entitled to the reliefs as prayed for.