SUBRAMANI AND ORS. Vs. SARAVANAN

JUDGEMENT

(1.) The defendants in O.S.No.209 of 2004 who were successful in getting a suit for mandatory injunction dismissed by the trial Court, upon its reversal by the lower appellate Court in A.S.No.21 of 2011, have come forward with this second appeal.

(2.) The plaintiff sought for the aforesaid relief of mandatory injunction claiming that he purchased a property of an extent of 61 3/4 cents from the defendants under a Sale Deed dated 25.11.1994. The defendants had purchased the said property from one Periyanna Aachari under a Sale Deed dated 06.05.1992. The said Periyanna Aachari had purchased a larger extent of 1 acre and 84 1/2 cents under a Sale Deed dated 10.05.1983 from one Marudhappa Nayinar. On 06.05.1992, the said Periyanna Aachari sold 1 Acre and 84 1/2 cents purchased by him under 3 Sale Deeds, each conveying an extent of 61 3/4 cents in favour of the 1st defendant and his wife, the first defendant's younger brother Sadhasivam and one Ponnan. It is the further case of the plaintiff that the defendants sold the property purchased by them under Ex.A4 dated 06.05.1992 to the plaintiff. The property purchased by Sadhasivam and 1st defendant under Ex B2 is situated on the North of the property purchased by the plaintiff under Ex.A1. It is the further case of the plaintiff that there was a Channel running North-South in Survey No.211 /3, namely property purchased by the 1st defendnat and his brother Sadhasivam under Ex.B2, situated on the North of the property purchased by the plaintiff under Ex.A1. The said Channel was used by the plaintiff for irrigating his land. According to the plaintiff, taking advantage of the absence of the recitals regarding the user of the Channel by the plaintiff in his sale deed, the defendants had obliterated the same on 08.10.2004 and therefore the plaintiff is entitled to restoration of the said Channel.

(3.) The suit was resisted by the defendants contending as follows: The existence of the Channel in S.No.211/3 was denied. It was also claimed that the land in S.No.211/3 measuring 61 1/4 cents situated on the Northern side of the plaintiff's property, belonged to the 1st defendant and his brother Sadhasivam and they have been cultivating the said land. Therefore, the suit is bad for non joinder of Sadhasivam. It is the further claim of the defendants that there is a Odai on the Eastern side of the property in S.No.211/3 as well as the property in S.No.211/4. Therefore, there is no necessity for the Channel in S.No.211/3. It is also claimed that there was a Channel in S.No.211/4 to enable the defendants and Ponnan to drain water into Odai situated on the South part of the plaintiff's land. The plaintiff had obliterated the same. When he was questioned regarding the said obliteration, the plaintiff has come forward with the said suit seeking mandatory injunction. On the above contentions, the defendants sought for dismissal of the suit.