IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 24.02.2021

PRONOUNCED ON : 09.03.2021

CORAM

THE HONOURABLE MR. JUSTICE T.RAVINDRAN

S.A.No. 34 of 2008

1. Thilai Gounder (deceased)

S/o. Pattinamar Gounder

.. Appellant/ Respondent/Plaintiff

2. Pachaiammal, W/o. Thillai Gounder

3. Kannammal, D/o. Late Thillai Gounder

4. Raju, S/o. Late Thillai Gounder

5. Chandra, D/o.Late Thillai Gounder

6. Gunasekaran, S/o. Late Thillai Gounder

7. Manoharan, S/o. Late Thillai Gounder

8. Yasodha, D/o. Late Thillai Gounder

9.Thenmozhi, D/o. Late Thillai Gounder

...2 to 9 Appellants/LRs of the 1^st Appellants

Appellants 2 to 9 brought on record as LRs of

deceased sole appellant vide order of this court

dated 09.12.2016 made in CMP Nos.16719 to

16721/2016 in S.A. No.34/2008.

Vs.

1. Chinnasamy

S/o. Mooka Gounder

2. Vengiammal

W/o. Mani

3. Parvathi

W/o. Raji

4. Thanikachalam

S/o. Late Puttan @ Vengan

5. Kumudha

S/o. Sivalingam

... Respondents/2 to 6 Appellants/2 ot 4,6&7

defendants

Prayer: Second Appeal filed under Section 100 of CPC, 1908

against the judgment and decree dated 27.10.2005 made in

A.S.No.35 of 2004 on the file of the Sub Court, Dharmapuri

reversing the judgment and decree dated 09.07.2004 made in

O.S.No.12 of 1992 on the file of the District Munsif Court,

Harur.

For Appellants : Mr. T. Murugamanikam, Senior Counsel

for M/s.V. Rajesh

For Respondents

: Mr. J. Nandagopal

https://hcservices.ecourts.gov.in/hcservices/

JUDGMENT

Challenge in this second appeal is made to the judgment

and decree dated 27.10.2005 passed in A.S.No.35 of 2004 on the

file of the Subordinate Court, Dharmapuri, reversing the

judgment and decree dated 09.07.2004 passed in O.S.No.12 of

1992 on the file of the District Munsif Court, Harur.

2.For the sake of convenience, the parties are referred

to as per their rankings in the trial court.

3. The plaintiff in O.S.No.12 of 1992 is the appellant

in the Second Appeal.

4.Suit for declaration, mandatory injunction and

permanent injunction.

5. The case of the plaintiff, in brief, is that he is the

absolute owner of the lands in Survey Nos.181/2C, 181/14,

183/7 of the suit village and enjoying the same by obtaining

the patta and paying the kists, etc., and the abovesaid lands

and the other lands belonged to the ancestors of the

plaintiff and the defendants 1 and 2 are the adjacent owners

and further put forth the case that there is a well in Survey

No.181/2C and the plaintiff had been drawing water from the

said well and irrigating his other lands and the irrigation

channel passes in between the land of the defendants 1 and 2

in Survey Nos.183/1B and 181/8B and then to the lands of the

plaintiff' and there is a pathway also along with the

irrigation channel and the abovesaid irrigation channel and

the pathway had been used by the plaintiff and his ancestors

for more than 100 years continuously without any interruption

and the irrigation channel is the only way for taking water to

the plaintiff's land, which is shown as ABCD in the rough plan

attached to the plaint and the same is the suit property and

thus the plaintiff and his ancestors had perfected their right

of easement over the suit property by way of prescription by

using the same over a period of 100 years and also other than

the irrigation channel, there is no other channel and pathway

for taking the water to the plaintiff's land. While so, the

defendants, out of jealousy, attempted to interfere with the

plaintiff's right of enjoyment over the suit irrigation

channel and pathway one way or the other, without any

authority or entitlement, and also endeavoured to obliterate

the suit channel by removing the stone and mud, etc., and

after the institution of the suit, the defendants had damaged

the suit channel and hence, according to the plaintiff, he has

been necessitated to lay the suit for appropriate reliefs.

6. The defenda