BASHA REDDIAR Vs. JANARTHANUM

JUDGEMENT

(1.) Plaintiff in O.S. No. 2081 of 1986 on the file of the Third Additional District Munsif, Pondicherry is the appellant. The suit filed by the appellant is to declare that the appellant is entitled to enjoy the common passage namely, the schedule item of the property including laying of the underground pipeline in the suit property for the purpose of keeping its drainage and to pass a decree of permanent injunction, restraining the defendants, their men or agents from interfering with the underground drainage work to be done by the plaintiff in the schedule property and to direct the defendants to pay the costs of the suit. In the plaint, it is stated that the property originally belonged to the plaintiff and his two brothers viz. Egambaram and Ramasamy and a partition deed was executed between the brothers. As per the said deed, the schedule property was kept as a common passage for the entry into the other portions of the house and make use of the same as a common passage for the enjoyment of all the co -sharers. It is said that the brothers attempted to close the common well, which was to be enjoyed by all the three brothers and the plaintiff was, therefore, constrained to file a suit for declaration that he is entitled to make use of the well and also for permanent injunction. The suit was decreed. It is stated that the plaintiff's brother Egambaram died leaving behind the first defendant as his legal heir and the other brother Ramasamy died leaving behind the defendants 2 to 5 as the legal heirs. It is said that the house of the plaintiff is on the eastern side and the house belonging to the defendants is on the western side. In the common passage the plaintiff left open the drainage connection and sometimes it overflows and thereby causes nuisance both to the plaintiff and to the other persons, including his brothers. The said common passage runs from North to South and it ends in the share belonging to the plaintiff on the northern side. Therefore, the plaintiff wanted to keep the drainage underground in order to avoid the inconvenience to the members of the family. The plaintiff made arrangements and purchased pipes for laying the underground drainage in the property. The defendants without any right attempted to prevent the plaintiff from digging pits to lay the pipes for the purpose of keeping the drainage underground in the said common passage. It is said that the plaintiff is entitled to do the same for the purpose for keeping the common passage clean to avoid inconvenience to the other sharers, viz. the defendants. When the defendants have obstructed, the plaintiff issued a lawyer's notice on 30.4.1986, directing the defendants not to interfere in the work which is being done by the plaintiff of keeping the drainage underground. Since the defendants continued to prevent the plaintiff from putting the underground drainage, it necessitated the filing of the suit.

(2.) In the written statement filed by the defendants, they took a contention that the suit is barred by res judicata, in view of the two cases alleged to have been filed by the plaintiff, It is said that the common lane is a small one, having a width of six feet and if every authorised person wants to lay a pipe -line for the purpose of taking water to the field of drainage, it will be highly impossible and will create more problems and completely spoil the common intention of the parents. All the parties are enjoying their respective properties for the past more than 50 years without keeping any separate drainage or underground pipeline in the suit property, which declares that the intention of the plaintiff to lay pipe line is only to give trouble and harassment to the defendants. Along with the suit, the plaintiff has also filed draft plan.

(3.) The trial Court has held that the suit is not barred by res judicata and the defendants failed to prove that there is an earlier finding against the plaintiff in any suit filed by him. It was also found that the suit is not bad for non -joinder of necessary parties. Finally, on Issue Nos. 4 and 5, i.e. whether the suit property is in the possession and enjoyment of the plaintiff as alleged by him and whether the plaintiff is entitled to the judgment and decree as prayed for, the trial Court held that since the suit properly is a common pathway, the plaintiff alone is not entitled to have the underground drainage connection drawn through the common pathway. It was held thus: -