K CHENNIMALAI GOUNDER Vs. C IYYASAMY

JUDGEMENT

(1.) This second appeal has arisen from the judgment of the learned Subordinate Judge, Tiruppur made in AS No.36 of 1991, wherein the judgment of the trial court in OS No.544 of 1989 seeking the relief of declaration that the plaintiffs are entitled to use the service connection 291 of Karumapalayam Village for the purpose of lifting water from common electric motor pump set installed in common well in S.F.89/1, in their turn of one day out of 3 days and for the consequential permanent injunction and mandatory injunction was reversed.

(2.) The following facts are noticed in the pleadings of the parties: The plaintiffs are the sons of Kandappa Gounder. The defendants 1 and 2 are brothers and the defendants 3 and 4 are brothers and the defendants 3 and 4 are the first cousins of the defendants 1 and 2. The fifth defendant is the father of the defendants 3 and 4. There is a common well situated in SF No.89/1, wherein the plaintiffs are entitled to 1/3rd and the defendants 1 to 5 are entitled to remaining 2/3rd share. In the common well, there is a common electric motor pump set installed in the said well. The electric motor pump set is 7.5 HP, wherein the plaintiffs are entitled to 1/3rd share and the defendants 1 to 5 are entitled to remaining 2/3rd share. The parties have got electric energy for service connection No.59 in the name of Karuppasamy Gounder. The ancestors of the plaintiffs and the defendants 1 to 4 were enjoying the property happily by lifting water in their turn from SF.No.89/1. Due to the non payment of charges, there was a disconnection of service connection No.59. The defendants 1 to 4 as plaintiffs filed a suit in OS No.728 of 1988 seeking for reconnection of service connection No.59. The defendants 1 to 4 filed an interlocutory application in IA No.2302 of 1988 for injunction directing the defendants 1 and 2 in the suit and the defendants 6 and 7 herein to restore the old service connection No.59 after receiving the charges and got an order. The defendants 6 and 7 in collusion with the defendants 1 to 4 instead of supplying or reconnecting the energy to the existing (then existed) service connection No.59, purposely got separate agreement without the consent of the plaintiffs and granted separate service connection No.291. The defendants 6 and 7 have no authority to get fresh agreement from one of the sharers in the Well. The Electricity Department, namely the defendants 6 and 7 should have asked the defendants 1 to 4 to secure no objection certificates from the co-owner of coshares in the well, namely, the plaintiffs herein. The plaintiffs have filed an application in IA No.570/89 in IA No.2302/88 praying for modification of injunction granted. By substitution of new service connection No.291 instead of old service connection No.59, will not take away the right of the plaintiffs to use the new service connection, and hence, there arose a necessity for filing the suit.

(3.) The third defendant contested the suit stating that the electricity service connection No.59 in the well was effected on 31.1.1957 for 5 HP; that later, on 1.1.1977, the HP was increased to 10 HP; that the plaintiffs never interested in agriculture; that they have never co-operated with the defendants in paying the electric charges or in repairing the motor pump set; that the plaintiffs also refused to cooperate with the defendants in paying the arrears and getting back the service connection; that the defendants' only income is from agriculture; that the Electricity Board has announced a scheme, under which the consumer of a dismantled service could apply before 24.12.1988 for a new service connection; that the defendants had applied for the same; that the defendants have paid a huge sum in clearing the arrears in service connection No.59; that service connection No.291 is totally a new service connection granted to the defendants 1 to 4 alone and the plaintiffs have no right over the same, and hence, the suit was to be dismissed. The defendants 1,2,4 and 5 have adopted the written statement of the third defendant.