Indian Kanoon - Search engine for Indian Law

6.Against the common judgment and decree allowing the first appeal and dismissing the Cross Objection, the appellant has come out with the present two Second Appeals.

7.The learned counsel for the appellant contended that partition deed was executed before the property was not plotted into house site. Clause 3 of partition deed gives power to the parties only to enter into the land where the well is situate and for a right to draw water, take materials to repair by common expenses by both the parties. This Court in S.A.No.1758 of 1998 which arose out of O.S.No.5454 of 1976 and S.A.No.1791 of 1992 has held that parties are entitled to draw water and to take water to their respective lands and it is not dealt with Plot Nos.21 and 22. The contention of the respondents that Plot Nos.21 and 22 have been treated as common by both the parties in misconception and it is only false representation to the Court.

8.There is no dispute with regard to wells which are common. Excluding well area, other areas in the plots cannot be treated as common area. When the lay out was formed by Sivasankaran Mudaliar in the year 1957 and Appadurai Mudaliar in the year 1961, independently with regard to the properties, there is no dispute with regard to enjoyment of the well and drawing water from the well. In O.S.No.659 of 1965, it was held that respondents' mother is entitled to 12 feet space East of well along with a pipe line, up to her property for the purpose of taking water and cart. Similarly, in O.S.No.5454 of 1976, it was held that respondents' mother is entitled to 25 feet around the well. In both the suits, Plot Nos.21 and 22 are not an issue. The third respondent, as D.W.3 has admitted that old method of drawing water by Yetram, Kavalai, etc., were abandoned a long ago. The extent of well is 133 Sq.Ft. and area around the well and extent of the well is 3118 Sq.Ft. Apart from this extent, the appellant is entitled to exclusive possession of balance extent of 1490 Sq.Ft. The learned Trial Judge has rightly moulded the relief and granted injunction in respect of 1490 Sq.Ft. by giving reasons for the same. The learned I Appellate Judge on erroneous consideration, set aside the said finding and allowed the First Appeal and dismissed the Cross Objection.

9(c).The entire extent of Plot Nos.21 and 22 are common for both the families of Sivasankaran Mudaliar and Appadurai Mudaliar. The family members of Appadurai Mudaliar without any right over the said plots, have sold the properties to the vendors of the appellant, pending suit and appellant's vendors sold the properties to the appellant, pending Second Appeal. In the Second Appeal, this Court has held that K.Suseela has common right to enjoy the well, as well as surrounding area of the well and the learned Trial Judge erred in granting decree of injunction for 1490 Sq.ft. The said extent is un-divided share. As per Order VII Rule 3 and Order XX Rule 9 of C.P.C, a party must describe the immovable property by boundaries or by numbers in a record of settlement or survey and immovable property must be sufficiently described to identify the same. Trial Court has not granted any decree for this extent with specific boundaries after demarcation. To substantiate this contention, the learned counsel for the first respondent relied on the judgment reported in 1978 TLNJ 197(Pankajammal and others Vs. Pichai Nattar).

13(a).The learned counsel for the appellant contended that it is situated in portion of the land allotted to Appadurai Mudaliar. After old method of drawing water from the well was abandoned, the family members of Sivasankaran Mudaliar lost their common right over the said plots. The members of Appadurai Mudaliar family have right to sell the property. In the suit filed by K.Suseela, mother of the respondents, it was held that she has right to draw water from the well and an extent of 25 feet around the well. The right of the parties in respect of ownership of plots was not an issue. In view of the same, the appellant as a purchaser is entitled to be in possession of the entire extent of suit property and is entitled to put up compound wall and gate to enter into Plot Nos.21 and 22. In any event, the appellant is entitled to exclusive possession of 1490 Sq.Ft. in the suit property.