SRI SIDDHESWARI PEEDAM Vs. PON DURAI SAMY

JUDGEMENT

(1.) The Second Appeal is preferred by the Plaintiff in the Suit against the Judgment and Decree, dtd. 27/2/2006 on the file of Additional Sub-Court, Tenkasi in A.S. No.134 of 2005 reversing the Judgment and Decree, dtd. 14/10/2004 passed in O.S. No.17 of 2002 on the file of District Munsif Court, Senkottai.

(2.) The Plaintiff in the Suit is the Appellant herein and the Defendant in the Suit is the Respondent herein. For the sake of convenience, the parties shall be referred as Plaintiff and Defendant as per the ranking in the Suit.

(3.) The brief facts of the case as stated in the Plaint are that the 1st and 2nd Schedule of properties belongs to the Plaintiff's Srimadam and the Plaintiff is in possession of the lands for more than 80 years (now 100 years). The 1st Schedule of Suit properties consisting of threshing floor (Nerkalam) and Well was not leased out to the Defendant. The 2nd Schedule of properties consisting of Agricultural Nanja Lands are leased to the Defendant and the same is having separate channel for irrigation. The Defendant had become Cultivating Tenant, which is against his Legal profession and he is having Money power and Political power. And the Defendant has planted Cash Crops instead of paddy, which is against the Agreement between the parties. Further the Defendant had failed to pay the Lease amount and separate action has been initiated against the Defendant. The Defendant deliberately quarrelled as if he has right in the Suit properties and had filed O.S. No.349 of 1999 on the file of Sub-Court Tenkasi and had obtained Interim Injunction in I.A. No.1278 of 1999 against the Plaintiff herein. The Plaintiff Srimadam had filed Written Statement in the said Suit by stating the true facts, thereafter the Defendant felt based on the true facts the said Suit would not be sustained and would be dismissed, hence left the Suit without contesting and the said Suit was dismissed for non-prosecution. Therefore, the Defendant is hit by Principles of Estoppel and Res judicata. The Defendant had encroached the 1st Schedule property and from 8/3/2002 trying to use the Well water situated in the 1st Schedule for Agricultural activity carried in the 2nd Schedule property. The Defendant is capable of doing anything. Hence, the Suit is filed inter alia praying to declare the Defendant is not having any right to the Well and Nerkalam situated in the 1st Schedule property consequently restrain the Defendant from using the Well water to irrigate the 2nd Schedule property.