PRABA Vs. R.VENKADACHALAPATHY

JUDGEMENT

(1.) The above unsuccessful defendants 2 and 3 in the Courts below are the appellants before this Court. The parties are referred to in the same array as in the suit. The plaintiff had filed a suit in O.S.No.178 of 2008, on the file of the learned Principal District Munsif, Sankarankovil for the following reliefs:-

(2.) The case of the plaintiff was that the plaint schedule properties and other properties belong to Rengaswamy Naicker and his sons, namely Ramar Naicker and the plaintiff Venkatachalam. The plaintiff's father had obtained an electricity connection in respect of the well situated in the first item of first schedule property and the entire first schedule property was irrigated out of the water from this well. He has further contended that for the said purpose, a motor room was also constructed in the suit schedule properties. During the lifetime of his father, there was an oral partition in the year 1984 and in the oral partition, the second schedule property was allotted to his share. He has contended that he had put up underground pipe line in survey No.166/1A to take water to his property located in survey No.164/60 from the well in his fifth item of the second schedule property. A channel was also put up from the lands in survey No. 166/1A to take the water to survey No.164/60. That apart, channels were also formed in the southern and northern direction so as to irrigate the lands comprised in survey No. 166/9. He further contended that at the time of oral partition in the year 1984, 30 cents of lands were set apart as nursery for planting paddy seedlings. The plaintiff would contend that 30 cents in this regard was set apart in the first item of the first schedule property and out of this 30 cents, 15 cents on the east was allotted to the plaintiff. This has been described as items 3 and 4 of the second schedule property. As per the terms of oral partition, the plaintiff took water from the well located in the fifth item of the second schedule property and the plaintiff has been contributing half of the expenses for the repair and upkeep works of the electric motor, which is installed in the fifth item. On 04.11.2007, the plaintiff's brother Ramaswamy Naicker died leaving behind him surviving the defendants as his legal heirs. After the death of Ramaswmay Naicker, his children, the defendants 2 and 3 had got a patta in respect of entire extent of first item of the schedule property and acted against the interest of the plaintiff by preventing him from taking water from the common well. They have also attempted to obliterate the pipe line installed underground in the suit schedule property. Therefore, left with no other alternative the suit is filed.

(3.) After receiving summons in the above matter, the defendants had entered appearance and the second defendant had originally filed a written statement and thereafter, an additional written statement, which was adopted by the defendants 1 and 3. The defendants would contend that the first item of suit schedule property in the oral partition of the year 1984 was allotted to the share of the Ramasamy Naicker, the father of the defendants 2 and 3 and the husband of the first defendant. The plaintiff has absolutely no right over the suit first item schedule property. Similarly, the plaintiff has no right over the fifth item of the second schedule property, which is nothing but an undivided half share in the first item of the first schedule property. It is the specific case that the well together with electricity motor was exclusive to Ramasamy Naicker. It was Ramasamy Naicker, who had laid the pipe line in survey No.166/1A and the plaintiff has no right to the same. They have come forward with a categorical case that the plaintiff never irrigated his lands through survey No.166/1A. Further, Ramasamy Naicker has executed a 'Will', dated 07.12.1992 bequeathing the first item of the suit property besides other properties to the defendants 2 and 3. They have been in possession and enjoyment of the same, after the demise of their father on 04.11.2007. The learned Principal District Musnif, Sankarankovil had framed the following issues: