JUDGMENT :

The defendant is the appellant before this Court. The Second Appeal arises against the judgment and decree in A.S.No.82 of 2005 in and by which the learned Subordinate Judge, Kalllakurchi had modified the judgement and decree of the Trail Court in O.S.No.373 of 2000 on the file of the I Additional District Munsif, Kallakurichi.

2. The suit O.S.No.373 of 2000 was filed by the respondent herein for the following reliefs:

“(a) for declaration of his title to the suit properties;

(b) for permanent injunction to restrain the defendant, his men and agents from in any manner interfering with the plaintiff's possession and enjoyment of the suit properties;

b-(b) for permanent injunction to restrain the defendant from the well in suit item 2 to lands not irrigable from it.

(c) for costs of the suit.”

3. The properties, subject matter of the suit, are as follows:

(1) Dry R.S.48/3 – 0.16 cents – Asst. Rs.).36p.

(2) Wet R.S. 48/4- 0.43 cents – Asst. Rs.3.57 p.

with the western 5/7 share in the well therein and the entire 3.HP., Electric motor and pumpset therein and the usual channel rights.

(3) Wet R.S. 47/4- 0.58 cents in this to the north of Eliyathur limits and Kaliyan's land, to the west of the road, to the south of the remaining extent and to the east of plaintiff's land in this 0.29 cents. Asst. Rs.2.41 p.

Plaintiff's case

4. It was the case of the plaintiff that the schedule mentioned property belongs absolutely to the plaintiff and he has been in possession and enjoyment of the same. It was his case that item 1 of the property was assigned to him under D.K.T No.257/87 issued by the Special Tahsildar, Land Assignment dated 07.11.1977. The second item of the property belonged to the grandfather of the plaintiff one Velmayil Pillai and his brother Subbaroya Pillai. The two brothers had executed a Will dated 07.07.1977 bequeathing the second item on the plaintiff. The said will was a registered Will. On their death, the plaintiff became the absolute owner of the suit second item of the property. It is his case that there is a well in the second item of the property, which has been divided into two halves with a middle wall. The plaintiff had installed an Electric motor and pumpset in the Western half of the well.

5. As regards the 3rd item of the property, it is the contention of the plaintiff that he had purchased it from Periyasami and another under a registered sale deed dated 09.06.1993.

6. Under the U.D.R Scheme, Patta was also assigned to the plaintiff. The plaintiff would submit that he has been cultivating his lands with the water drawn from the well in the suit second item through Electric Motor and Pumpset and thus by open, continuous and peaceful possession of the suit properties for over the statutory period, his title is also perfected by way of adverse possession.

7. The defendant, who is a neighboring land owner and having no interest or right in the suit schedule property, had lodged a caveat dated 17.04.2000 and since then he has been interfering with the plaintiff's possession and use of the suit properties. He was also attempting to obliterate the channel emanating from the well in the suit second item, so as to interrupt the cultivation. Therefore, the plaintiff was constrained to file the suit originally for a declaration and permanent injunction.

8. The plaintiff would further submit that the defendant was trying to take water from the well in the suit second item, which he is not entitled to irrigate from the suit well.

Written Statement filed by the defendants:

9. The defendant had filed a written statement inter alia contending that in the suit second item of property, the plaintiff is entitled to half of 5 cents and the defendant is also entitled to a similar extent. The defendant had purchased a half share in the well situated in the second item of the property under the sale deeds dated 03.01.1974 and 23.11.1993. He would submit that the rights in the well had not been partitioned. He admits that there are two mot