Legal presumption is discretion of Court.

(S.A. No. 269 of 2006: Second appeal under Section 100 CPC against the decree and judgment dated 26.11.2004 made in A.S. No. 21 of 2001 on the file of Additional Subordinate Judge, Tindivanam reversing the decree and judgment dated 28.02.2001 made in O.S. No. 1067 of 1990 on the file of Principal District Munsif, Tindivanam.

S.A. No. 270 of 2006: Second appeal under Section 100 CPC against the decree and judgment dated 26.11.2004 made in A.S. No. 22 of 2001 on the file of Additional Subordinate Judge, Tindivanam confirming the decree and judgment dated 28.02.2001 made in O.S. No. 55 of 1990 on the file of Principal District Munsif, Tindivanam.)

Common Judgment:

These second appeals are listed today for admission and I heard the learned counsel for the appellant.

2. The first defendant in O.S. No. 1067 of 1990 before the Principal District Munsif, Tindivanam is the appellant in Second Appeal No. 269 of 2006. The said suit was filed by the plaintiffs therein for declaration and permanent injunction.

3. The plaintiff in O.S. No. 55 of 1990 before the Principal District Munsif, Tindivanam is the appellant in Second Appeal No. 270 of 2006. The said suit was filed by him for declaration of 1/3rd share in the suit A Schedule Well marked as 'W' in the plan annexed with the plaint, for right of channel described in B Schedule property marked 'AB' and for permanent injunction.

4. The issues involved in both the appeals are common and hence, they are disposed of by this common judgment.

5. For the sake of convenience, the parties shall be referred to as they were arrayed before the trial court.

6.(a) The case of the Plaintiff in O.S. No. 55 of 1990 is that he is the son of Munusamy Gramani. The said Munusamy Gramani and Manicka Gramani are brothers and they were living as a joint family. Thanjammal was grandmother of Manicka Gramani and Munusamy Gramani. Thanjammal's foster son was Govinda Gramani. Govinda Gramani's son was Saminatha Gramani. The properties comprised in Survey No. 202/11, 202/12 besides some other properties were purchased in the name of Manicka Gramani, being the elder member of the joint family and the said properties were enjoyed in common by Munusamy Gramani and Manicka Gramani. In partition, the 1/3 share of the suit well was allotted to Manicka Gramani. Saminatha Gramani took the property comprised in Survey No.202/13. The Plaintiff's father Munusamy Gramani, Manicka Gramani and Saminadha Gramani all had 1/3rd equal share in the suit well and all of them enjoyed the same for several years. After the death of Munusamy Gramani, the plaintiff inherited the properties. The eldest among the family Manicka Gramani died. The said Manicka Gramani had four sons, among them three sons namely Thangavel, Ayyadurai and Samikannu died and the only son namely the first defendant Nandagopal succeeded to his father's estate. The said Thangavel had 2 daughters namely Kasiammal and Kamatchi and they also died. The defendants 10 to 14 are legal heirs of Kamatchi. The third defendant is the wife and fourth defendant is the son of Ayyadurai. The second defendant is the wife of deceased Samikannu. By this geneology, the defendants 1 to 14 are legal heirs of deceased Manicka Gramani and they are entitled to a share in the suit well. The Plaintiff has been using the suit well for irrigation purpose by installing an oil engine. On 20.12.1989, the defendants restrained the plaintiff from taking water from the suit well. The plaintiff was irrigating his lands through the suit well by an oil engine. To the north of the plaintiff's engine, the defendants installed their engine for irrigation purpose. The fourth defendant and others are attempting to destroy the channel which has been enjoyed by the plaintiff and other ancestors for several years, hence the suit.

(b) The defendants in O.S. No. 55 of 1990 have filed their written statement contending that Manicka Gramani and Munusamy Gramani were divided brothers and they have divided whatever