SUBBARAYAN @ SUBRAMANI Vs. RENGASAMY

JUDGEMENT

(1.) CHALLENGE in this second appeal is to the judgment and decree, dated 22.07.2005 passed in A.S.No.58 of 2004 by the Subordinate Judge, Karur, confirming the judgment and decree passed in O.S.No.674 of 1999 on the file of the Additional District Munsif, Karur, dated 26.03.2003.

(2.) THE appellant herein as plaintiff has instituted Original Suit No.674 of 1999 on the file of the trial Court for the relief of mandatory injunction and permanent injunction, wherein the present respondent has been shown as defendant.

(3.) IT is averred in the plaint that the plaintiff and the defendant are brothers and they are the sons of one Kalianna Gounder. The plaintiff, the defendant, their brothers and their father had entered into an written Registered Partition Deed on 11.06.1976 in respect of their family properties. In the said partition, 'D' schedule properties mentioned in the said Partition Deed were allotted to the plaintiff. The 1st item of 'D' schedule property in the partition deed is the suit 'A' schedule property. From the date of partition, the plaintiff has been in possession and enjoyment of the suit 'A' schedule properties by paying kists to the Government. After partition, the plaintiff has dug -up a well in the suit 'B' schedule property i.e. in S.F.No.406 and a small portion in S.F.No.449 i.e., in poramboke, on his own earnings and savings. The well in S.F.No.406 and a small portion in S.F.No.449 is the suit B schedule property. The suit B schedule property is the part of the suit 'A' schedule property and the plaintiff applied for electricity service connection and obtained service connection bearing No.312. In the said partition, the defendant was allotted with certain properties and the defendant being the elder brother of the plaintiff has requested the plaintiff to install a electric motor in the well situate in the suit B schedule property so as to irrigate his properties and the plaintiff allowed the defendant to install the electric motor in his exclusive well in the suit B schedule property with a condition to remove the same whenever the plaintiff demanded. Accordingly, the defendant obtained electric service connection No.343 and the plaintiff's service connection number is 312. As the water in the above said well is not sufficient to irrigate the lands of the both the plaintiff as well as the defendant and as the plaintiff's cultivable land is excessive, the plaintiff requested the defendant to remove the electric motor installed by him in the suit B schedule property. Being aggrieved by the same, the defendant began to start the illegal acts against the plaintiff and thereby, he has refused to remove the electric motor installed by him. The defendant has no right over the suit B schedule property, which is the exclusive property of the plaintiff and there is no dispute regarding the suit A schedule property and the dispute is only with regard to suit B schedule well alone. On 19.09.1999 the defendant along with their men made an unlawful attempt to prevent the plaintiff from taking water in the suit B schedule property and refused to remove the electric motor installed by him therein. Hence, The plaintiff has filed the suit for mandatory injunction and permanent injunction.