- (1.)COMMON JUDGMENT S.A. No. 2066/84 is filed against A.S. No. 174/83 on the file of the Principal District Court, North Arcot at Vellore, which was filed against O.S. No. 463/74 on the file of the District Munsif, Sholinghur. S.A. No. 1886/86 is against A.S. No. 175/83 on the file of the District Court, North Arcot at Vellore, which in turn was against O.S. No. 849/78 on the file of the District Munsif's Court, Sholinghur.
(2.)FOR the purpose of appreciating the facts leading to the two Second Appeals it would be easier to have a genealogical tree which is as follows: Table
For the sake of convenience parties will be referred to by their names or their ranks in the suit as the occasion warrants. Annamalai, Mangayarkarasi and Padmavathi, who were the defendants in O.S. No. 463/74 are the appellants in S.A. No. 2066/84. The plaintiff Subramanian is the respondent in the Second Appeal.

The plaintiffs Mangayarkarasi and Padmavathi in O.S. No. 849/78 re the appellants in S.A. No. 1886/86. The defendants Subramanian and Natesan are the respondents in the Second Appeal.

Subramanian filed O.S. No 463/74 for declaration, permanent injunction and for a mandatory injunction for restoration of the suit channel. The averments as set out in the suit are as under: The suit property belonged to one Thangavelu, who died in the year 1974. He also had a half right in the well and pump-set and also the channel shown as A to F. He executed a settlement deed on 6.12.1971 in favour of Subramanian. Subramanian had been in possession and enjoyment in pursuance of the settlement deed. He and his predecessors in title had been in open and uninterrupted possession and had also prescribed for title by adverse possession. It is also stated in the plaint that the sale deed dated 13.3.1938 executed by Thangavelu in favour of his brother Sambasiva on 13.3.1938 (father of Mangayarkarasi and Padmavathi) is not true and valid in law. Thangavelu never delivered possession to Sambasiva.

Annamalai resisted the suit contending inter alia as follows:

Thangavelu and Sambasiva had an equal share in the suit well. Thangavelu executed a sale deed of the properties including his share in the well on 13.3.1938 in favour of his brother Sambasiva. Ever since that date Sambasiva was enjoying his share as well as the properties purchased from his brother till his death leaving behind Mangayarkarasi and Padmavathi and his widow Poongavanam Ammal, who died later. Subramanian and his predecessors in title had no right in the well or in the channel and they also never enjoyed it. The channel shown as BCD in the plaint plan runs through S.F. No. 140/3 belonging to Mangayarkarasi and Padmavathi and the channel was constructed only by Sambasiva about five years prior to the suit with the permission of Mangayarkarasi with an agreement and understanding that he should supply water from the suit well in S. No. 140/3. Subramani was not entitled to the restoration of the channel nor had he any right to the well or to the channel.

(3.)ANNAMALAI filed an additional written statement contending that 74 cents in S.N. 140/3 belonged to him by virtue of a settlement deed executed by Ramasamy Mudaliar and that he was in possession of the same in his own right and Subramanian had no right to any channel through his land.
Mangayarkarasi and Padmavathi resisted the suit contending inter alia as follows:

Subramanian did not have any right in the well as it was ancestral property. He had no right to take water from the suit well or pumpset. The suit channel was constructed by Sambasiva Mudaliar with the permission of Annamalai. Thangavelu Mudaliar had sold away his share in the properties as early as 15.3.1938. It was only Sambasiva who dug the well and installed the pumpset and Subramanian was not entitled to make any claim. An additional written statement was filed to the effect that Thangavelu Mudaliar himself had filed a written statement in O.S. No. 409/40 asserting the truth and validity of the sale deed in favour of Sambasiva that Subramanian who was claiming title through Thangavelu was estopped from denying the title of Sambasiva or Mangayarkarasi and Padmavathi. Mangayarkarasi and Padmavathi had filed O.S. No. 849/78 for declaration of their title and the suit was, therefore, liable to be dismissed.

The suit in O.S. No. 849/78 was filed by Mangayarkarasi and Padmavathi on the following averments:

Sambasiva and Thangavelu were brothers. There was a partition in respect of the joint family property long time ago. After the partition Thangavelu sold the plaint schedule items 1 to 4 to his brother Sambasiva Mudaliar on 15.3.1938 and from that date Sambasiva Mudaliar was in possession and enjoyment of the property in his own right till his death in 1971. Poongavanammal was his widow and Mangayarkarasi and Padmavathi were his daughters. Poogavanammal died in 1977 leaving behind Mangayarkarasi and Padmavathi as her legal heirs. They had been in possession and enjoyment and Sambasiva Mudali was in possession for over the statutory period and they had also perfected title by adverse possession. Sambasiva dug a well in item No. 5 at his own cost and also installed a pumpset and was enjoying them in his own right till his death. The starter and switch, electric motor and pumpset in item No. 5 had been stolen away. Subramanian and Natesa, the defendants in the suit, were brothers and they were not entitled to claim the suit property under Thangavel Mudaliar as Thangavel Mudaliar had no right to these properties after 15.3.1938. The suit was therefore filed for declaration and permanent injunction.
9 (a) The defence was as follows: The suit had been filed at the instigation of one Annamalai, the first defendant in the other suit, who had demolished a portion of the channel. It had been held in an earlier suit that the sale by Thangavel Mudaliar in favour of Sambasiva Mudaliar was a bogus one. So Mangayarkarasi and Padmavathi could not rely on the sale deed to claim title over the property. Mangayarkarasi and her husband in collusion with Annamalai, the first defendant in the suit, had removed the pumpset and had filed the present suit.