GOURI Vs. KAMALAKSHI

JUDGEMENT

(1.) The defendant whose plea was rejected by both the courts below in a suit for declaration, permanent injunction and mandatory injunction is the appellant herein.

(2.) The following short facts are noticed in the pleadings of the parties. The immovable property more fully described in the plaint originally belonged to one Nallathambi Nadar, the father of the plaintiff and the defendant. He executed a Will on 5.9.1984 in which the plaintiff was shown as second party and the defendant was shown as first party. B schedule property was allotted to the plaintiff and the A schedule property was allotted to the defendant. The suit property was described as B schedule item No.1 in the Will. On the death of Nallathambi Nadar, the Will came into force. As per the Will, the plaintiff became the absolute owner of B schedule property. There was a Well in the plot of the plaintiff. The residential house of the plaintiff is also situated in the same plot. During the life time of Nallathambi Nadar, the plaintiff and the defendant were also taking water from the Well with bucket and rope by exercising manual labour. After the death of Nallathambi Nadar, they continued to take water in that manner. While so, the defendant had installed the compressor on 29.9.1991 within the Well and pipe fittings were attached to the compressor and electric lines were also drawn within the suit property taking advantage of the absence of the plaintiff. The action of the defendant was unlawful and illegal, and hence, there arose a necessity to file the suit seeking for declaration that the suit property belonged to the plaintiff and mandatory injunction for the removal of the said compressor machine, pipelines, electric fittings, etc. and for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the property by the plaintiff.

(3.) The suit was resisted by the defendant inter-alia stating that the plaintiff has no cause of action for filing the suit; that the Will mentioned in the plaint is an admitted one and the same came into force in the year 1984 after the death of Nallathambi Nadar; that it is also true that the properties mentioned in the schedule B of the Will were set apart for the plaintiff and A schedule were set apart for the defendant; that the mother of the defendant also died few years back; that she had a right of enjoyment over all the properties including the Well; that insofar as the Will in question, there is a clear provision in the Will that the water was being taken from that Well and being used and the right that was exercised should continue to exist even after the death of the testator by the allottees of both A and B schedules; that after the death of the testator, the owner of B schedule should not raise any dispute or objection as to the exercise of right over the Well; that the said provision was absolutely binding on the plaintiff; that the testator in his last Will and testament did not prescribe any particular method for lifting water from the Well nor he referred the existing method or device for drawing water from the Well; that all that he said was that the water was being drawn and used and that right should continue to exist and should have available to the owner of A schedule property even after his life time; that how the water, which went deep beneath the ground, should be brought up to surface was for the users to decide; that the testator never limited or restricted in any manner of the use of water by the defendant from the Well; that it is true that the defendant was taking water from the well lying in the suit property by using mini pump having 0.5.HP; that the defendant have every right to do so and the plaintiff cannot dispute or question the same; that the plaintiff cannot suffer any loss or injury by the defendant using the Well by taking water by using that method, and thus, the plaintiff was not entitled for the relief as asked for.