VARANAVASI GOUNDER Vs. E S KRISHNASWAMI

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment and decree in A. S. No. 107 of 1996 on the file of the Court of Principal District Judge, Periyar District at Erode. The plaintifif, who got a decree before the trial Court in O. S. No. 791 of 1994 on the file of the Court of Principal District Munsif, Erode, but in the appeal preferred by the defendant in A. S. No. 107 of 1996, lost the same is before this Court in Second appeal.

(2.) THE averments in the plaint which has been filed by the plaintiff for an order of permanent injunction in brief relevant for the purpose of deciding this appeal are as follows: the suit properties are situated in Avalpoondurai Village. The plaintiff got the suit property under a compromise decree dated 16. 7. 1990. The plaintiff and his two sons K. V. Viswanathan and K. V. Shanmughasundaram got a property under a partition. The plaintiff is in possession and enjoyment of the suit property. The compromise was entered into between the parties in O. S. No. 366 of 1990 under a decree dated 16. 7. 1990. The defendant's land is situate on the south of plaintiff's suit property. Taking advantage of the same, the defendant wants to trespass into the suit property. The defendant claims to hae a channel right over the suit property. But the defendant has no manner of right over the suit properpty. After the partition through the Court, the plaintiff is in possession and enjoyment of the suit property by paying land tax regularly. The defendant attempted to trespass into the suit property on 26. 4. 1994 and the plaintiff prevented the trespass with the help of his neighbours. The defendant may come at any time and trespass into the suit property. Hence the suit.

(3.) THE defendant in his written statement would contend that he is not aware of the alleged compromise decree dated 16. 7. 1990. The defendant is not a party at the said suit in O. S. No. 366 of 1990 on the file of the Court of Principal Subordinate Judge, Erode. The defendant owns an agricultural land on the south east of the suit propeprty and it measures about 5. 55 acres in R. S. No. 1179 of Aval Poondurai Village. The said land is being irrigated by LBP canal water. Eversince, the advent of the LBP canal, this respondent is irrigating his land through the LBP water. The LBP (Lower Bhavani Project) main canal is situated on the north of the plaintiff land; a channel branches off from the sluice situated on the north of the suit property. It runs from north to south for about 400 feet on the western boundary of the plaintiff's land in R. S. No. 1183, then it enters into the land of the third party namely Thangamuthu and turns towards East. It runs about 300 feet in Thangamuthu's land and enteres the land of the defendant in R. S. No. 1179. The breadth of the "koppu" is about 2 feet excluding bunds. The location of the said LBP "koppu" channel is marked as ABCD EF in the rough plan filed by this defendant. The defendant is taking water through the above said "abcdef" channel for nearly four decades. The defendant has perfected right by essment of prescription. Except, the above said channel, there is no other facility to take the LBP water and to irrigate the respondent's land in R. S. No. 1179. The plaintiff has filed the suit with ulterior motive. The plaintiff sought permission to lay underground pipeline in respondent's land in R. S. No. 1179 for taking odai pallam Water which runs east west on the south of the defendant's land to the plaintiff's land in R. S. No. 1183. The defendant has refused to give permission. Aggrieved at it, the plaintiff started to give troubles to the respondent from taking LBP water through ABCD channel as shown in the above said plan. The defendant sent a petition to Revenue Officials. The revenue Officials inspected and found the existence of the field Boothi. That being so, all of a sudden the plaintiff has filed the above said suit for permanent injunction without mentioning the channel properly. This defendant has not attempted to trespass into suit property on 26. 4. 1964. Hence the suit is liable to be dismissed.