CHANDRA Vs. N REDDAPPA REDDY

JUDGEMENT

(1.) This civil miscellaneous appeal is brought forth from the judgment of the learned VI Additional City Civil Judge, Chennai, made in A.S.No.126 of 2002, wherein the judgment of the trial Court namely the V Assistant City Civil Judge, Chennai, in O.S.No.3736 of 2000 was partly set aside, and an order of remittal was passed in that regard.

(2.) The first respondent as plaintiff filed a suit in O.S.No.3736 of 2000 seeking for (i) permanent injunction restraining the defendants 1 and 3 from interfering with the plaintiff's property in putting up gate, compound wall, development of the plots, usage of plots in any manner the plaintiff wants for plot Nos.21 and 22, II Street, Chockalingam Nagar Colony, Gopalpuram, Vellala Teynampet, Chennai; (ii) declaration that Clause 3 of the partition deed dated 29.10.1906 relating to drawing of water from the well in plot No.22, by using the irrigation method of yetram etc., to do cultivation is not valid and cannot be enforced as it is prohibited in the City of Chennai in view of the prohibition of cultivation in the City by legislation and also by other laws; and (iii) permanent injunction restraining the defendants 1 to 3 from drawing water in plot No.22 by using the irrigation method of yetram etc., and from drawing water for cultivation as it is prohibited in the City of Chennai in view of the prohibition of cultivation in the City by legislation and other laws, alleging that he is the owner of the two plots namely plot Nos.21 and 27 in Survey Nos.1330/1, 1330/2 and 1330/3 (part); that the extent of plot No.21 is 2336 sq.ft., while the extent of plot No.22 is 2272 sq.ft.; that a well is situated in plot No.22; that the two brothers namely Sivasankaran Mudaliar and Appadurai Mudaliar had a family partition deed dated 29.10.1906, whereby the eastern side property has been allotted to Sivasankaran Mudaliar, while the western side was allotted to Appadurai Mudaliar; that both of them will have right to draw water from the wells; that they were using water from the wells for doing cultivation; that the word "Yetram" was used in the partition deed; that the old method of yetram was abandoned, when the electricity has come; that the family members of Appadurai Mudaliar sold the major portion of their plots to various persons, and the people also built houses in the plots; that the family members of Sivasankaran Mudaliar were having an evil eye on the plots belonging to the plaintiff; that there is also another well in the portion of Sivasankaran Mudaliar; that Appadurai Mudaliar's family had right over the well situated in plot No.22; that regarding the well, the daughter of Sivasankaran Mudaliar and wife of Krishnaswamy Mudaliar namely Suseela filed a suit in O.S.No.659 of 1965 against Appadurai Mudaliar's family; that the said suit ended with the judgment of the Hon'ble High Court in the second appeal dated 17.12.1976; that the said Suseela instituted another suit in O.S.No.5454/76 against the members of Appadurai Mudaliar seeking the same reliefs as sought for in O.S.659/65; that O.S.5454/76 was decreed in her favour; that an appeal in A.S.182/86 therefrom has been partly allowed and the judgment of the trial Court was modified; that the erstwhile owners of the plaintiff filed S.A.No.1332/89, which has been dismissed on 22.9.89; that the Special Leave Petition in No.3651/89 was also dismissed on 14.2.1991; that Suseela filed S.A.No.1758/88 against the judgment in A.S.182/86; that the erstwhile owners of the plaintiff filed O.S.No.6140/89, and the same has been decreed, against which an appeal was preferred in A.S.No.873/94, which was taken up along with S.A.1758/88; that S.A.1791/82 preferred by Appasamy Mudaliar's family against A.S.234/81 was also taken up; that all the three appels were heard together and orders were passed by the Hon'ble High Court on 22.9.1997 allowing the appeals of Suseela, in that O.S.No.5454/76 has been decreed; that the defendants 1 to 3 were deriving their right over the well; that the only right is to draw water by means of yetram, etc; that the neighbours issued a notice to the plaintiff to close the well because of mosquito menace; that the Corporation issued a notice to the plaintiff indicating that the well should be demolished; that the defendants are keeping the well only to grab the property of the plaintiff; and that the defendants do not have any right in the enjoyment of the property at plot Nos.21 and 22.

(3.) After entering appearance, the first defendant filed I.A.No.12277 of 2000 seeking a dismissal of the suit. The plaintiff was given an opportunity for filing his counter. The learned V Assistant City Civil Judge, after hearing both sides, rejected the plaint under Order 7 Rule 11 of C.P.C. Aggrieved, the plaintiff took it on appeal in A.S.No.126 of 2002. The learned VI Additional City Civil Judge, after hearing the rival submissions, allowed the appeal, set aside the judgment of the trial Court and passed an order of remittal with a direction to the trial Court to take O.S.No.3736 of 2000 on file, give sufficient opportunity to both the parties and dispose of the same in accordance with law. Aggrieved over the said order of remand, the first defendant has brought forth the instant C.M.A.