JUDGMENT : PRAYER: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 23.09.2013 in A.S.No.21 of 2011 on the file of the learned Principal Sub-Judge, Tindivanam against the judgment and decree dated 26.11.2010 in O.S.No.209 of 2004 on the file of the learned District Munsif, Vanur. The defendants in O.S.No.209 of 2004 who were successful in getting a suit for mandatory injunction dismissed by the trial Court, upon its reversal by the lower appellate Court in A.S.No.21 of 2011, have come forward with this second appeal. 2. The plaintiff sought for the aforesaid relief of mandatory injunction claiming that he purchased a property of an extent of 61 ¾ cents from the defendants under a Sale Deed dated 25.11.1994. The defendants had purchased the said property from one Periyanna Aachari under a Sale Deed dated 06.05.1992. The said Periyanna Aachari had purchased a larger extent of 1 acre and 84 ½ cents under a Sale Deed dated 10.05.1983 from one Marudhappa Nayinar. On 06.05.1992, the said Periyanna Aachari sold 1 Acre and 84 ½ cents purchased by him under 3 Sale Deeds, each conveying an extent of 61 ¾ cents in favour of the 1st defendant and his wife, the first defendant's younger brother Sadhasivam and one Ponnan. It is the further case of the plaintiff that the defendants sold the property purchased by them under Ex.A4 dated 06.05.1992 to the plaintiff. The property purchased by Sadhasivam and 1st defendant under Ex B2 is situated on the North of the property purchased by the plaintiff under Ex.A1. It is the further case of the plaintiff that there was a Channel running North-South in Survey No.211/3, namely property purchased by the 1st defendant and his brother Sadhasivam under Ex.B2, situated on the North of the property purchased by the plaintiff under Ex.A1. The said Channel was used by the plaintiff for irrigating his land. According to the plaintiff, taking advantage of the absence of the recitals regarding the user of the Channel by the plaintiff in his sale deed, the defendants had obliterated the same on 08.10.2004 and therefore the plaintiff is entitled to restoration of the said Channel. 3. The suit was resisted by the defendants contending as follows: The existence of the Channel in S.No.211/3 was denied. 3. The suit was resisted by the defendants contending as follows: The existence of the Channel in S.No.211/3 was denied. It was also claimed that the land in S.No.211/3 measuring 61 ¼ cents situated on the Northern side of the plaintiff's property, belonged to the 1st defendant and his brother Sadhasivam and they have been cultivating the said land. Therefore, the suit is bad for non joinder of Sadhasivam. It is the further claim of the defendants that there is a Odai on the Eastern side of the property in S.No.211/3 as well as the property in S.No.211/4. Therefore, there is no necessity for the Channel in S.No.211/3. It is also claimed that there was a Channel in S.No.211/4 to enable the defendants and Ponnan to drain water into Odai situated on the South part of the plaintiff's land. The plaintiff had obliterated the same. When he was questioned regarding the said obliteration, the plaintiff has come forward with the said suit seeking mandatory injunction. On the above contentions, the defendants sought for dismissal of the suit. 4. At trial, the plaintiff was examined as P.W1 and one Murugaiyan was examined as P.W.2. Exs. A1 to A4 were marked on the side of the plaintiff. On the side of the defendants, the 1st defendant was examined as D.W1 and Ponnan, the Northern owner, was examined as D.W.2. Exs.B1 to B3 were filed on the side of the defendants. 5. The trial Court, on a consideration of the evidence on record, concluded that none of the documents demonstrated the existence of the Channel in S.No.211/3. The trial Court also found that there was no need for such Channel as there was no connecting Channel on the North beyond the property in S.No.211/3. The trial Court further found that the land situated in S.No.211/3 belongs to the 1st defendant and Sadhasivam. Sadhasivam being not made a party to the suit, a decree for mandatory injunction cannot be granted. On the above finding, the learned trial Judge dismissed the suit. Aggrieved, the plaintiff preferred an appeal in A.S.No.21 of 2011. The lower appellate Court, on a reconsideration of the evidence on record, disagreed with the trial Court. The lower appellate Court found that there had been some corrections in the Sale Deed namely Ex.A1 in S.Nos.211/3 and 211/4, which were typed in Ex.A1 and they were removed by applying whitener. Aggrieved, the plaintiff preferred an appeal in A.S.No.21 of 2011. The lower appellate Court, on a reconsideration of the evidence on record, disagreed with the trial Court. The lower appellate Court found that there had been some corrections in the Sale Deed namely Ex.A1 in S.Nos.211/3 and 211/4, which were typed in Ex.A1 and they were removed by applying whitener. The lower appellate Court therefore found that Ex.A1 in fact referred to the existence of the Channel in S.No.211/3 and 211/4. On the said finding, the lower appellate Court found that the case of the plaintiff that the Channel was obliterated, was probable. On the above conclusion, the lower appellate Court reversed the judgment and decree of the trial Court and decreed the suit. Aggrieved, the defendants have come by way of this Second Appeal. 6. The following substantial questions of law were framed at the time of admission: i. Is the learned Sub-Judge right in reversing the judgment of the trial Court irrespective of the fact that the plaintiff neither pleaded or proved easement? ii. Is not the judgment of the first Appellate Court is perverse as it simply decreed the suit on the single reasons that the sale by the defendant to the plaintiff contains wrong survey numbers irrespective of the fact that the defendant never denied and accepted the title of the plaintiff for which the sale has been effected? And iii. Is not the judgment of the first Appellate Court is perverse, as it failed to appreciate that the appointment of Advocate Commissioner which is mandatory to ascertain the usage, nature and character of the water Channel? 7. I have heard Mr.D.Ravichander, learned counsel appearing for the appellants and Mr.S.Rajaraman, learned counsel appearing for the respondent. 8. Elaborating on the questions of law, Mr.D.Ravichander, learned counsel appearing for the appellants would contend that in the absence of any pleading regarding any correction having been made in Ex.A1, the lower appellate Court was not justified in going into the question regarding the alleged corrections in the description of the properties in Ex.A1. He would also rely upon the prior title deeds, namely Exs. B1, B2 and A4 to contend that there was no Channel in S.No.211/3 that was conveyed by Periyanna Aachari to Sadhasivam and the 1st defendant under Ex.B2 dated 06.05.1992. He would also rely upon the prior title deeds, namely Exs. B1, B2 and A4 to contend that there was no Channel in S.No.211/3 that was conveyed by Periyanna Aachari to Sadhasivam and the 1st defendant under Ex.B2 dated 06.05.1992. He would also submit that the plaintiff had in the plaint, conceded that there is no recital regarding the existence of Channel in the Sale Deed Ex.A1. Drawing my attention to the proof affidavit filed and the cross examination of P.W.1, the learned counsel would further contend that the case of the plaintiff is that the defendants are trying to take advantage of the absence of the recitals regarding the existence of the Channel in Ex. A1. On the basis of the above statement made in the plaint as well as in the proof affidavit, Mr.D.Ravichander would submit that the plaintiff cannot claim that the corrections/erasing of the Survey number in the description of the property in Ex.A1, had been done by the defendants. According to him, Ex.A1 is a Sale Deed in favour of the plaintiff, it was in his custody and it was produced by him before Court and therefore, the defendants could not have erased the Survey numbers, without the knowledge of the plaintiff. Mr.D.Ravichander, learned counsel would also contend that the mandatory injunction was sought for to form a Channel in the land belonging to 1st defendant and Sadhasivam, Sadhasivam being not made a party to the suit, the lower appellate Court was not right in granting a decree for mandatory injunction. Mr.D.Ravichander, learned counsel for the appellants/defendants would further submit that the findings of the lower appellate Court are perverse inasmuch as they are not based on either pleading or evidence. 9. Contending contra, Mr.S.Rjaraman, learned counsel for the respondent/plaintiff would submit that Sadhasivam is not a necessary party to the suit and and that he had not destroyed the Channel. There was a division between 1st defendant/Subramani and Sadhasivam, by which the Western portion in S.No.211/4 was allotted to Subramani and the Eastern portion was retained by Sadasivam. He would also submit that the fact that S.Nos.211/3 and 211/4 mentioned in Ex.A1 have been erased by using whitener, would show that the plaintiff was given a right to irrigate his land through the Channel in S.No.211/3. 10. I have considered the rival submissions. 11. Ex.B1 Dated 10.05.1983 is the earliest document available on record. He would also submit that the fact that S.Nos.211/3 and 211/4 mentioned in Ex.A1 have been erased by using whitener, would show that the plaintiff was given a right to irrigate his land through the Channel in S.No.211/3. 10. I have considered the rival submissions. 11. Ex.B1 Dated 10.05.1983 is the earliest document available on record. Under Ex.B1, Marudhappa Naiyinar sold the property to an extent of 1 acre and 84 ¼ cents to Periyanna Aachari. The said document does not disclose the existence of any Channel in the property sold by him in favour of Periyana Aachari. On 06.05.1992, Periyanna Aachari had sold the said 1 acre and 84 ¼ cents purchased by him under three sale Deeds. Two of the sale deeds have marked as Exs.B2 and A4. Under Ex.B2, Periyanna Aachari had sold an extent of 64 ¼ cents in favour of the 1st defendant and his brother Sadhasivam. The description in Ex.B2 reads as follows: xxx xxx xxx 12. Under Ex.A4, Periyanna Aachari had sold another 61 ½ cents in favour of the defendants/appellants. The description in Ex.A4 is as follows: xxx xxx 13. From the above description found in Exs.B2 and A4, it is clear that the property purchased under Ex.B2 by Subramani and Sadhasivam is situated on the North of the property that was purchased by Subramani and Rani under Ex.A4. It is not in dispute that the property purchased under Ex.A4 was sold to the defendants under Ex.A1. The description of the property in Ex.A1 reads as follows: xxx xxx 14. It is the admitted case of the parties that new survey numbers have been assigned to the properties in modification of old ones. The new survey number of the property conveyed in Ex.A1 is S.No.211/4 and the new survey number of the property conveyed under Ex.B2 is 211/3. The property purchased by Ponnan from Periayanna Aachari is situated on the East of the property, covered by Ex.B2, as can be seen from the boundary description. There is no recital in any of the prior documents with reference to the Channel that is now claimed by the plaintiff. Only Ex.A1 recites the right over the Channel and that recitals also read that, xxx xxx This would necessarily mean that there is a Channel in the property conveyed under the document. There is no recital in any of the prior documents with reference to the Channel that is now claimed by the plaintiff. Only Ex.A1 recites the right over the Channel and that recitals also read that, xxx xxx This would necessarily mean that there is a Channel in the property conveyed under the document. No doubt, in the descriptive portion in Ex.A1, S.Nos.211/3 and 211/4 have been typed and they have been erased using whitener. 15. Mr.S.Rajaraman, learned counsel for the respondent/plaintiff would vehemently contend that the above erasing was done by the defendants in order to defeat the right of the plaintiff. Unfortunately, for him, there is neither a plea nor any evidence regarding the said erasing of the survey numbers, on the side of the plaintiff. The plaint does not make any reference to the said erasing and that the plaint very clearly states that the defendants are attempting to take advantage of the absence of the recitals in Ex.A1 regarding a right over the Channel. The same version is repeated in the deposition of P.W.1. In fact, throughout the evidence of P.W.1 in chief as well as in cross examination, it is very clearly stated that the defendants are trying to misuse or make use of the absence of the recitals in the documents. In the proof affidavit of P.W.1, he had stated as follows: xx xxx 16. The above pleading and evidence of P.W1 had been totally overlooked by the lower appellate Court, when the lower appellate Court came to the conclusion that there is a correction or erasing of certain numbers in Ex.A1. Admittedly, Ex.A1 was executed by the defendants in favour of the plaintiff as early as on 25.11.1994. The document was in the custody of the plaintiff and it was a plaintiff who was produced into Court. He has not only produced Ex.A1, but has also produced the prior title deed Ex.A4, under which the defendants purchased the property in Survey No.211/4 from Periayanna Aachari. If the case now projected by the learned counsel for the respondent is correct, the respondent/plaintiff should have let in evidence to that effect. But, unfortunately, for the plaintiff, the said exercise is totally lacking in the case of on hand. The lower appellate Court had not adverted to the pleadings and evidence of P.W.1. If the case now projected by the learned counsel for the respondent is correct, the respondent/plaintiff should have let in evidence to that effect. But, unfortunately, for the plaintiff, the said exercise is totally lacking in the case of on hand. The lower appellate Court had not adverted to the pleadings and evidence of P.W.1. It only concentrated on the erasing of the S.Nos.211/3 and 211/4 Ex.A1 and came to the conclusion that the defendants have obliterated the Channel. 17. Yet another fact that militates against the plaintiff is admittedly, the property situated on the North of S.No.211/3 was purchased by the 1st defendant and his brother Sadhasivam under Ex.B2 dated 06.05.1992. The prayer for mandatory injunction is in relation to the said property, one of the joint owners of the property, namely Sadhasivam had not been made a party to the suit. 18. Mr.S.Rajaraman, learned counsel for the respondent/plaintiff would further contend that the property of Sadhasivam is the Eastern half and the 1st defendant is in possession of the Western side of S.No.211/3. Here again, it should be pointed out that there is no such pleading and evidence on the side of the plaintiff. One Murugaiyan was examined as D.W.2 and he has admitted that there was no Channel in existence. The trial Court had analyzed the evidence including recitals in the documents and came to the conclusion that the plaintiff has not established the existence of the Channel. The lower appellate Court appears to have been carried away by fact through certain portion of the description in Ex.A1, has been erased using whitener when it came to the conclusion that the plaintiff has established the existence of a Channel. This particular conclusion of the lower appellate Court is not supported by pleading or by evidence. The plaintiff did not plead that there was conferred on him a right which was subsequently erased using whitener. In the absence of such a plea, the lower appellate Court's reasons can be sustained. The description of properties available in all the documents referred to above, discloses very clearly that there was no Channel as claimed in the plaint. If only there was any Channel running in S.No.211/3, its continuation should be there in S.No.211/4, the Southern property. In the absence of such a plea, the lower appellate Court's reasons can be sustained. The description of properties available in all the documents referred to above, discloses very clearly that there was no Channel as claimed in the plaint. If only there was any Channel running in S.No.211/3, its continuation should be there in S.No.211/4, the Southern property. All these features are totally overlooked by the lower appellate Court and the lower appellate Court seems to have been carried away by the corrections in the description of the property in Ex.A1. Non consideration of the pleading and evidence by the lower appellate Court, renders its this findings perverse. 19. In view of the above, the question of law No.1 is answered in favour of the appellants to the effect that the lower appellate Court was not right in granting a decree based on the right of easement by grant, when the plaintiff has not even pleaded such a grant. The question of law Nos.2 and 3 are also answered in favour of the appellants concluding that the finding of the lower appellate Court which are based on surmises and conjectures disregarding the pleading and evidence available on record are perverse and therefore they are liable to be set aside. 20. Accordingly, the second appeal is allowed, the judgment and decree of the lower appellate Court are set aside and that of the trial Court are restored. Considering the facts and circumstances of the case, there will be no order as to costs.