JUDGEMENT
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(1.)Second Appeal No.1455 of 1999 is preferred against the judgment and decree dated 31.3.1999 made in A.S.No.88 of 1998 by the Court of III Additional District Judge, Dharmapuri at Krishnagiri, thereby allowing the appeal without costs, setting aside the judgment and decree dated 31.7.1988 in O.S.No.142 of 1990 by the Court of District Munsif, Krishnagiri and decreeing the suit for declaration of the plaintiff's easementary right to take water from K.R.P Dam east-west water channel through the defendant's land to her land and mandatory injunction directing the defendant to form a channel from K.R.P dam east west channel through the defendant's land. It was further ordered that as and when the Commissioner is appointed to execute the decree for mandatory injunction, the Commissioner shall locate the portion of the land, which is convenient to both parties if a channel is formed and that there will be no order as to costs.
(2.)Tracing the history of the above Second Appeal coming to be preferred by the defendant in the suit, it comes to be known that the plaintiff/respondent has filed the suit for declaration of the plaintiff's easementary right and enjoyment over the K.R.P.Dam water channel, for mandatory injunction directing the defendant to remove the obstruction in the channel and for recovery of Rs.1,000/- per year from the defendant towards damages caused to the crops till the date of opening the channel and enforcement of the plaintiff's easementary right, on averments such as that the plaintiff purchased the suit 'A' schedule property from one Raman alias Ramasami and his sons Ramasami and Govindasami under a sale deed dated 25.9.1975 that the plaintiff got the 'B' schedule property under a sale deed dated 5.9.1989 for a sale consideration of Rs.7000/-; that she joined the said two pieces of land into one and enjoying the same ever since the date of construction of K.R.P. Dam water channel and got right to take water through it; that she is also paying charges for water; that the channel from the K.R.P dam is running from west to east; that the plaintiff and defendant have obtained sale from one and the same person and both of them have got right in the channel; that the channel is 120.2 feet breadth; that since the defendant failed in his attempt to obtain sale from the plaintiff, he obstructed and caused damage to the crops when the plaintiff cultivated rice in Vaikasi 1989; that the plaintiff is entitled to Rs.1,000/- per year towards the value of damages; that the plaintiff has got easementary right over the water channel and she is enjoying the same for the last 20 years; that the plaintiff sent a reply dated 6.2.1990 to the notice dated 18.12.1989 issued by the defendant; and hence the suit for declaration of her easementary right and enjoyment over the K.R.P.Dam water channel, for mandatory injunction directing the defendant to remove the obstruction in the channel and to direct the defendant to pay a sum of Rs.1,000/- per year to the plaintiff as damages caused to the crops till the date of opening the channel, and enforcement of the plaintiff's easementary right.
(3.)On the contrary, the defendant in his written statement would state that the suit property belongs to the plaintiff and the defendant has not claimed any right over the same; that the land of the defendant is adjacent to the suit property, that the K.R.P dam water channel is not running through the land of the defendant; that no right of water was given under the sale deeds; that the channel in the suit property running from west to east is not separately going through the defendant's land; that if the channel was 120.2 feet breadth, the defendant has no intention to purchase the suit property; that there was no incident happened in the month of Vaikasi 1989; that it is false averment that there was a loss caused to the tune of Rs.1,000/- per year; that it is also false to say that the plaintiff has got easementary right over the K.R.P dam water channel for the past 20 years; that therefore, the plaintiff is not entitled to the reliefs of declaration of her easementary right over the channel, mandatory injunction and for compensation. On such averments, the defendant would pray to dismiss the suit with costs.
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