ARUNACHALA NAICKER Vs. JANAKIRAMA NAICKER

JUDGEMENT

(1.) THE defendants in O.S.No.211 of 1982 on the file of the District Munsif, Polur, are the appellants in the second appeal. THE respondent filed the suit for declaration and permanent injunction in respect of several items of properties. We are only concerned with S.No.210/1-A and S.No.210/3-A in Arunagirimangalam village, Kalasapakkam Sub District in North Arcot District.

(2.) THE case of the respondent was that he purchased the several items in the suit from their owners Vinayagamurthy and Santhanam under Ex.A-1 dated 2.8.1980 and Ex.A-2 dated 16.9.1980. THE purchase by him included 3/4th right in the well in S.No.210/1-A. He had originally owned 1/4th share in the well and after the purchase by him now he became entitled to the entirety of the well in S.No.210/1-A and notwithstanding the fact that the appellants knew about his purchase, they colluded with Vinayagamurthy, one of the vendors of the respondent, and created an antedated document and on the strength of that document, they attempted to interfere with the respondent's possession and enjoyment and the suit was therefore necessitated for the reliefs already mentioned.

(3.) HOWEVER, with regard to the rights in the well arguments have been advanced as to whether under the sale deed in favour of the plaintiff, the entire 3/8th right in the sell purported to have been sold would pass to the plaintiff/respondent notwithstanding that the entire extent in the said survey number had not been sold. Out of 96 cents in S.No.210/3-A the respondent purchased 50 cents from Vinayagamurthy and there was still left an extent of 45 cents, though the parties claimed that an extent of 52 cents was still available. HOWEVER having regard to the fact that the survey number had an extent of only 96 cents, it has to be held that if at all the fourth appellant would get title and interest only to an extent of 46 cents. The well right, in my view, would have been only in proportion to the extents. It does not appear from the records that in respect of any other property the suit well was the source of irrigation. It would be relevant to refer to Ex.A-3 which is the partition deed between Santhana Naicker and Vinayagamurthy in the year 1966. Under this partition deed ?A? schedule property was allotted to Santhana Naicker. The first item in the ?A? schedule is S.No.210/2-1 acre 6 cents. The second item is S.No.210/1-A and in this well excluding the 1/4th share of Janakirama Naicker (the respondent herein), the balance of 3/4th share had to be taken in moiety by Santhana Naicker and Vinayagamurthy. Under Ex.B-3 ?B? schedule property has been allotted to Vinayagamurthy. The first item in ?B? schedule is 210/3-A - 96 cents and the second time is the one half share in the 3/4th share in the well in 210/1-A, that is to say that in the well the respondent/plaintiff had a one fourth share already and Santhana Naicker and Vinayagamurthy had each a 3/8th share. From a reading of the said partition deed Ex.A-3 it is seen that the well which is the suit well, is meant for irrigating the properties in S.No.210/2 allotted to Santhanam and the property in S.No.210/3-A, that is to say that so far as Vinayagamurthy was concerned, his property of 96 cents in 210/3-A had a right of irrigation from the well in 210/1-A and the share in the well was 3/8th. Therefore, the 3/8th share in the well in 210/a-A was meant for irrigation of 96 cents in 210/3-A. We have already noticed that out of 96 cents the respondent had purchased only 50 cents and Vinayagamurthy purported to sell his entire share of 3/8th in the well to the respondent, in which case the balance of 46 cents sold to the fourth appellant would be left high and dry without any source of irrigation. It is also not shown by the learned counsel for the respondent that there is any other source of irrigation for the 96 cents allotted to Vinayagamurthy. In these circumstances, it has to be seen whether the appellants could claim a right of irrigation in the suit well notwithstanding the fact that the entirety of the 3/8th share of Vinayagamurthy had been purported to have been sold to the respondent.