Where plaintiff fails to conclusively prove defendant-caused damage and continuous use of disputed amenities, mandatory injunction for restoration cannot be granted.

JUDGMENT :

K. MURALI SHANKAR, J.

1.The second appeal is directed against the judgment and decree made in A.S.No.87 of 2017, dated 28.01.2020 on the file of the Additional District and Sessions Court, Fast Track Court, Tenkasi, partly reversing the judgment and decree passed in O.S.No.222 of 2010, dated 12.01.2017, on the file of the Additional Sub Court, Tenkasi.

2.The appellant is the plaintiff. He filed a suit in O.S.No.222 of 2010, on the file of the Additional Sub Court, Tenkasi, claiming the reliefs of declaration, permanent injunction and mandatory injunction.

3. Pending suit, the plaintiff alleging that the defendants had destroyed the Kamalai Thadam and formed a layout and also obliterated irrigating channels, amended the plaint claiming mandatory injunction for restoration of the same.

4. For the sake of convenience and brevity, the parties hereinafter will be referred as per their ranking/status before the trial Court.

5.The case of the plaintiff, in short, is as follows :

a) The suit schedule property belongs to the plaintiff. The suit second schedule Well is a common Well belonging to the both the plaintiff and the defendants. The plaintiff's father and the first defendant's father entered into a written agreement, dated 22.05.1968, whereunder both of them agreed to install an electric motor pumpset and get electric service connection and irrigate Well through the said pumpset.

b) The plaintiff is a practising Doctor at Nagercoil. When he visited the suit properties on 16.09.2010, he came to know that the defendants had filled up the sand and closed the Well and removed the electric motor and also destroyed the Kamalai, Kamalai Kidangu and irrigation channels.

c) The second defendant, power agent of the first defendant, in an attempt to form a layout, closed the Well and destroyed the channels. Hence, the plaintiff was constrained to send a legal notice on 24.09.2010 and having received the same, the second defendant sent a reply notice on 29.09.2010, admitting the plaintiff's ½ share in the suit Well and electric motor pumpset, but raised false and untenable allegations.

d) The plaintiff is unable to take water from the suit Well and to irrigate his lands. He is also unable to take water from the nearby pond through the irrigation channels, as the same were destroyed by the defendants.

e) Pending suit, an Advocate Commissioner was appointed and he inspected the property and noticed the closure of Well and also the existence of the channels earlier and subsequent damages caused to them. Hence, the plaintiff was forced to amend the plaint and the plaintiff is entitled to use the motor pump set and to irrigate his lands through the suit common Well and the defendants are to be restrained from in any manner interfering with the plaintiff's right to take water through the motor pumpset from the Common Well. The defendants are duty bound to restore the suit common Well and to fix the motor pumpset and also to restore the Kamalai Thadam shown in the third schedule and channels shown in the fourth schedule and also the channels shown as P1 P2 P3 P4 in the Advocate Commissioner's plan.

6. The defence of the defendants, in short, is as follows :

a) The first defendant is the owner of the property lying north and south of the suit Well and he is a co-owner regarding the suit Well. The second defendant is the power agent of the first defendant. The entire Well became defunct even 10 years prior to the filing of the suit and there had been no cultivation in the surrounding lands