V.KANDASWAMI Vs. VEMBANNA GOUNDER

JUDGEMENT

(1.) The plaintiff in the suit is the appellant. The appellant filed a suit for declaration of his title to the suit property, injunction restraining the respondents from interfering with his possession and also sought for mandatory injunction directing the respondents to restore the cart track along with red marked portion in Survey No.750/1 in the plaint plan. He also sought for mandatory injunction directing the respondent to restore the channel course 'AB' along with western extremity of red marked cart track in Survey No.750/1. The suit was partly decreed by the Trial Court granting the relief of declaration and injunction. The Trial Court also declared that the appellant is entitled to use the water channel in Survey No.750/1 with the width of two feet together bunds with the width of one feet on either side. The trial Court also issued a mandatory injunction directing the respondents to restore the water channel and the bunds as declared by it. In respect of other prayers of the appellant/plaintiff, the suit was dismissed. Aggrieved by the same, the appellant filed first appeal in A.S.No.55 of 1995, on the file of Principal District Court, Dindigul and the same was dismissed. Challenging the said judgment and decree, the appellant is before this Court.

(2.) According to the appellant/plaintiff, the first respondent is his father and the second respondent is his brother. The suit property was originally belonged to the Hindu joint family consisting the appellant, first respondent and second respondent. There was a partition in the family on 7/12/1979 whereunder the properties of the family was partitioned among the family members. Under the said document, 'C' schedule was allotted to the share of the appellant. 'A' schedule was allotted to the first respondent and 'B' schedule was allotted to the second respondent. It was further pleaded by the appellant that the second respondent herein obliterated the water channel and the common cart track running from the common well situated in the portion of the property allotted to the first respondent leading to the property of the appellant, which lies on the southern side. It was specifically pleaded by the appellant that the cart track is the only way of access to his agricultural lands and in the absence of the cart track, he may not be in a position to take his agricultural implements to his lands on the southern side. The cart track, which was obliterated by the second respondent, was shown by red marked portion in the plaint plan. The appellant also pleaded that the respondents obliterated the water channel leading to his lands from the common well. Therefore, he also sought for mandatory injunction directing the respondents to restore the water channel.

(3.) The first respondent herein filed a written statement denying the very existence of the water channel and cart track as alleged by the appellant. It was further pleaded by the first respondent that there was a cart track lying on the eastern side of the appellant's property and he had been using the same as an access to his agricultural land. It was further pleaded that on the southern side also, there is a cart track along with the water channel. The existence of water channel from the common well to the property of the appellant was also denied by the first respondent. The second respondent also filed a written statement on the very same lines supporting the written statement of the first respondent.