S.A.Nos.942 & 943 of 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 28.11.2023

CORAM :

THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN

S.A.Nos.942 and 943 of 2007

and M.P.No.1 of 2007

1.K.Sampath,

2.S.Valliammal

...Appellants in

both second appeals

Vs.

1.R.Balan,

2.Avinashi Gounder

...Respondents in

both second appeals

Prayer in S.A.No.942 of 2007: Second Appeal filed under Section 100 of

the Code of Civil Procedure, against the Judgment and Decree dated

25.01.2007 made in A.S.No.31 of 2005 on the file of the Principal Sub-

ordinate Judge, Gobichettypalayam, modifying the Judgment and Decree

dated 29.06.2004, made in O.S.No.357 of 1998, on the file of the District

Munsif, Gobichettypalayam.

Prayer in S.A.No.943 of 2007: Second Appeal filed under Section 100 of

the Code of Civil Procedure, against the Judgment and Decree, dated

25.01.2007 made in A.S.No.58 of 2005 on the file of the Principal Sub-

ordinate Judge, Gobichettypalayam, confirmimg the Judgment and

Decree dated 29.06.2004, made in O.S.No.357 of 1998, on the file of the

District Munsif, Gobichettypalayam.

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S.A.Nos.942 & 943 of 2007

For Appellants

in both second appeals

: Mr.A.V.Arun

For Respondent-1

: Mr.B.Bharath Kumar

in both second appeals

for Mr.V.Nicholas

****

C O M M O N J U D G M E N T

At the instance of the defendants, both these second appeals have

been filed. The first respondent is the plaintiff and the second respondent

is the third defendant.

2.

For the sake of convenience, the parties will be referred to

according to their litigative status as before the Trial Court.

3.

Since both the second appeals arise out of the same suit,

both the second appeals are considered and decided by this common

judgment.

The brief facts which give rise to this second appeal are as follows:

4.

The second defendant is the wife of the first defendant. The

third defendant is the father of the second defendant. According to the

plaintiff, the suit properties belong to him, absolutely being his ancestral

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S.A.Nos.942 & 943 of 2007

and self acquired properties. The first defendant has purchased the

adjecent land to the plaintiff's property, the well and adjoining portion,

through a sale deed dated 19.06.1996. According to the plaintiff, the

defendants did not have any right to title over the plaintiff’s exclusive

right over electricity motor pumpset erected in the well. It is the

submission of the plaintiff that the suit electric motor pumpset was

installed by the plaintiff’s father about 38 years ago. It was also

contended by the plaintiff that there was an old Uthi vaikkal, with a width

of 4 feet that runs westwards from the common well for taking water to

the other parties’ lands. The said Uthi vaikkal is shown as ‘ABCDEFGHI’

in the rough plan attached with the plaint. According to the plaintiff, the

said vaikkal was in existence for more than 60 years. However, the

defendants attempted to put up a new cart track by obliterating the Uthi

vaikkal. Hence, the plaintiff has come forward with the suit for injunction

in respect of the Uthi vaikkal and in respect of the motor pumpset.

5.

The said suit was resisted by the first defendant by

contending that the rough plan attached to the plaint is not correct. It was

further contended that the plaintiff has falsely claimed exclusive right

over the electricity service connection and motor pumpset. According to

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S.A.Nos.942 & 943 of 2007

the defendants, by virtue of the sale deed dated 19.06.1996, the first

defendant has become entitled to a half share over the well and the

pumpset. This defendant further submits that the said Uthi vaikkal is

extended only for the small distance in portion ‘ABHI’ as referred to in

the plaint plan and not the portion of ‘ABCDEFGHI’. It is the case of the

defendants that the Uthi vaikkal wa