SUBBARAYA GOUNDER Vs. PONNATHAL

JUDGEMENT

(1.) Aggrieved by the judgment and decree dated 24.03.2005 passed by the Principal Subordinate Judge, Erode, in A.S. No. 45 of 2004 wherein and by which the judgment and decree dated 25.06.2004 passed by the District Munsif - cum - Judicial Magistrate, Kodumudi, in in O.S. No. 83 of 2001 filed for the relief of mandatory injunction to remove the borewell sunk on the suit cart-track, was confirmed, the defendants 1 and 2 have come up with this Second Appeal.

(2.) The case of the plaintiffs is that they inherited the suit property, which was allotted to one Sengoda Gounder alias Sengappa Gounder, by virtue of a partition deed dated 02.9.1963. The suit property is a cart-track situate in R.S. No. 86 which corresponds to old S. No. 112/1 and borewell sunk by the defendants 1 and 2 on the cart-track. The cart-track is the panchayat poramboke property and to the east of the cart-track, the plaintiffs' land is situate while the defendants' property is situate at the west of the cart-track. Both of them have cultivated their lands. There is a well in the plaintiffs' property. While so, on 07.7.2001, the defendants 1 and 2 sank a borewell 15' away from the plaintiffs' well in the suit cart-track and according to the plaintiffs, such an action of the defendants would deplete the water level in their well. That apart, the borewelll was sunk by the defendants on the suit cart-track which is common to the adjacent owners and sought for service connection from the defendants 3 to 5. The further case of the plaintiffs is that if the defendants are allowed to get the service connection to the suit property, the usage of the cart-track will be obstructed and, therefore, they effected a notice on 14.7.2001 with a copy to the defendants 4 and 5 who are the electricity authorities. The defendants 4 and 5 did not respond to the notice and the defendants 1 and 2 made arrangements on 20.7.2001 to put up a permanent structure and set up the pump set for the borewell. Inspite of the objections by the plaintiffs, the defendants 1 and 2 were trying to create the permanent structure. Therefore, the suit was filed seeking for mandatory injunction to remove the borewell and permanent injunction not to change the service connection to the borewell.

(3.) The case of the defendants 1 and 2, who resisted the suit was that the suit property was never allotted to the plaintiffs and that the plaintiffs had no right or title over the suit property. It is admitted that the plaintiffs' property is on the east and the defendants' property is on the west of the cart-track and also there was an unused land of 10' to 15' breadth in between the lands. According to the defendants, that unused land was also not even and the said land was used by the owners on the north and south and that the boundaries of the defendants are never fixed in R.S. No. 86. The defendants had also admitted that on the alleged suit cart-track, they were in possession of an extent between 3' and 10' and that they have been enjoying the encroached portion from time immemorial and that now, they had sunk a borewell by spending a lot of money. Though it is admitted by the defendants that they sank a borewell on the suit cart-track, it was only an one inch air pipe and 1= inch water pipe under the ground. Therefore, according to the defendants, they are not hindering the easy usage of the cart-track. Hence, sought for dismissal of the suit.