Ramasamy Gounder v. Oomathurai Gounder & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 27.10.2009CoramThe Hon’ble Mr.Justice M.JEYAPAULSecond Appeal Nos.1157 and 1249 of 19951. Ramasamy Gounder2. Shanmugasundaram3. Arul Selvam (died)4. Madhakkal (Mother of Arul Selvam) Fourth appellant – brought onrecord vide order dated 6.7.2007in CMP Nos.4104 & 4105 of 1998)Appellants inboth the casesvs. 1. Oomathurai Gounder2. Muthusamy3. Subbammal4. RajendranRespondents inS.A.No.1157/951. Oomathurai Gounder2. Muthusamy3. RajendranRespondents inS.A.No.1249/95For appellants : Mr.T.M.HariharanFor respondents: No appearance.Prayer:- Second Appeals against the judgment and decree of thelearned Subordinate Judge, Coimbatore dated 24.8.1993 made inA.S.Nos.201 and 85 of 1992 preferred against the judgment anddecree of the learned District Munsif, Coimbatore dated 28.2.1992made in O.S.Nos.2400 and 1102 of 1987.COMMON JUDGMENTThe appellants here filed a suit in O.S.No.2400 of 1987 asagainst the respondents herein praying for a declaration that item 2in schedule A measuring 1 cent should the kept in tact without any https://hcservices.ecourts.gov.in/hcservices/ cultivation and for consequential relief of permanent injunction.The appellants also sought for mandatory injunction for removing theheap of stones in item 2 under schedule A by the respondents. 2. The respondents filed a suit as against the appellants inO.S.No.1102 of 1987 praying for an order of injunction restrainingthe appellants herein from making an attempt to use the passage andalso for declaration that the respondents are the owners of'kodikkal' described in item 2 in the said suit and also forpermanent injunction restraining the appellants from causing damageor from interfering with the use of the said 'kodikkal' by therespondents. 3. By a common judgment, the Trial Court declared the title ofthe respondents with respect to the second item and grantedconsequential injunction in O.S.No.1102 of 1987 but, dismissed theprayer of the respondents for permanent injunction as against theappellants with respect to the first item of the suit property inO.S.No.1102 of 1987. The Trial Court chose to decree the suit filedby the appellants in O.S.No.2400 of 1987 as prayed for. 4. Aggrieved by the common judgment passed by the Trial Court,the appellants preferred Appeal Suit in A.S.No.85 of 1992 as againstthe judgment pronounced by the Trial Court in O.S.No.1102 OF 1987and Appeal Suit in A.S.No.201 of 1992 as against the judgmentpronounced by the Trial Court in O.S.No.2400 of 1987. Both theappeals stood dismissed by the first appellate court. Hence, thesesecond appeals before this court at the instance of the appellantsherein. 5. It is found that the prayers sought for by the appellants inO.S.No.2400 of 1987 were granted by the Trial Court. No appeal waspreferred by the respondents as against the judgment went in favourof the appellants in O.S.No.2400 of 1987 or the dismissal of theprayer for permanent injunction sought for by the respondents withrespect to the first item of the suit property in O.S.No.1102 of1987. Now, the entire dispute revolves around only the water course(kodikkal). 6. The appellants have contended in their pleadings that thewater course was put up by them in the year 1951 in their lands inorder to drain water to the Government pond lying on the east of theproperties of the rival parties. The respondents have contended intheir pleadings that the water course lies within their property andthey have been enjoying the same for the past 35 years. https://hcservices.ecourts.gov.in/hcservices/

7. On the side of the respondents in both the suits, the fourthrespondent was examined as PW1, the first respondent was examined asPW2, the second respondent was examined as PW3 and one Subbian aneighbouring land owner was examined as PW4. The respondents havemarked seven documents on their side. On the side of theappellants, the first appellant was examined as DW1 and aneighbouring land owner was examined as DW2 and on their sidefourteen documents were marked. The advocate commissioner's reportwas marked as Ex.C1 and the plan submitted by him was marked asEx.C2. 8. Both the courts below, having fully relied upon the reportof the advocate commissioner in the background of the rough sketchfiled by him, in the absence of any indication as to the ownershipof the water course in the sale deeds Exs.A1 to A3 marked on theside of the respondents and the sale deed Ex.B1 marked on the sideof the appellants, rendered a finding that the water course liesonly within the property of the respondents and therefore, therespondents are entitled to declaration of title and also forpermanent injunction. 9. At the time of admission of these appeals, the followingsubstantial question of law was framed:-"Whether the judgments of the courts below are vitiatedby their failure to consider the entire evidence onrecord and apply the correct principles of law?"10. There is no representation on the side of respondents 1, 2and 4 in S.A.No.1157 of 1995 and respondents 1 to 3 in S.A.No.1249of 1995. The third respondent Subbammal who was served with noticein respect of S.A.No.1157 of 1995 remained absent inspite of noticeserved on her. 11. Learned counsel appearing for the appellants wouldvehemently contend that the courts below simply relied upon thereport of the advocate commissioner and plan filed by him anddeclared the title of the respondents with respect to the watercourse in dispute. It is his submission that the documents of titleviz., Exs.A1 to A3 do not refer to the water course in the propertypurchased by the respondents. Though the respondents have contendedthat they purchased the water course under the documents of title,they could not establish the same before the court. It is hisfurther submission that the lie of the land would establish that thewater course has been used by the appellants to drain their water tothe Government pond lying on the east of the properties of the rival https://hcservices.ecourts.gov.in/hcservices/ parties. The courts below have lost sight of the fact that theadvocate commissioner, even without the assistance of any qualifiedsurveyor, filed only a rough sketch which cannot be taken as agospel truth to establish the title to the water course in dispute.Therefore, he would submit that the judgments of the Trial Court aswell as the first appellate court declaring the title of therespondents with respect to the water course in dispute will have tobe set aside. 12. The respondents have contended in the plaint pleadings thatthe water course has been in existence for the last about 35 years.They purchased the properties including the water course. PW1 in hisevidence has deposed that the water course is very much running inhis property and the same has been in existence for the past 40years. The water course also has been maintained all along only bythem. It is his further testimony that the property was purchasedinclusive of water course by the respondents. PW2, on his part,also would testify that even at the time when the properties werepurchased under Exs.A1 to A3, the water course was in existence.There was no water course within the property of the appellants.PW3 also would depose that the water course has been in existencefor the past 35 years only in their property. The appellants havetheir property only in the south of the water course. Therefore,the appellants have no right over the water course, he would depose.PW4 a neighbour would also state that the water course is runningvery much within the property of the appellants. 13. An Advocate Commissioner was appointed by the Trial Court.The Advocate Commissioner filed his report Ex.C1 and rough sketchEx.C2. Even at the outset, the advocate commissioner would statethat the rough sketch was not prepared according to the exactmeasurement. The advocate commissioner has noted down the physicalfeatures and has submitted a report backed by the rough plan. Thewater course marked as 'ABCD' has got stone revetment. It is foundto be a well laid water course. Of course, the advocatecommissioner has noted that the portion marked as 'XY' was found tobe tampered with. Only in respect of measurement, in the absence ofany assistance from the Surveyor, we can construe that the planwould not reflect the real measurement of the property. But, we cansafely rely upon the sketch filed by the advocate commissioner todecide the lie of the property. It is found that the property of theappellants lies on the south of the marks 'FX'. The mark 'FX' runsparallel to the marks 'AB' running on the east of the marks 'FX'.Both the courts below, having factually analysed the marking foundin the rough sketch filed by the advocate commissioner, found thatthe property lying on the north of 'FXBA' should have been owned by https://hcservices.ecourts.gov.in/hcservices/ the respondents. It is true, as contended by the learned counselappearing for the appellants, that neither the sale deeds Exs.A1 toA3 marked on the side of the respondents nor the sale deed Ex.B1marked on the side of the appellants did disclose the lie of thewater course. Therefore, the court will have to bank only the oralevidence let in by the parties and the physical features noted downby the advocate commissioner in the sketch filed by him. 14. The appellants also claim exclusive right over the watercourse. The lie of the land noted down by the advocate commissionerwould indicate that the water course lies only within the propertyof the respondents and not in the property of the appellantsinasmuch as the straight line marked as 'FXBA' should have been theboundary line demarcating the property of the appellants and therespondents. 15. When the water course lies very much within the property ofthe respondents, there is no necessity for the vendors tospecifically refer to the water course lying within the property. 16. The learned counsel appearing for the appellants cited adecision reported in GURUNATH MANOHAR PAVASKAR v. NAGESH SIDAPPANAVALGUND ((2007) 13 SCC 565) wherein it has been held has follows:-"9. The High Court although took into considerationthe fact that the plaintiffs did not seek for anydeclaration of title, as noticed hereinbefore, opinedthat the question of title can be gone into in anappropriate suit. All the courts relied on Ext.P-35which was allegedly produced by the appellants butwere made use of by the respondents, wherein it hadbeen shown that Chalta No.63 was allotted in respectof CTS No.4823/A-1, Chalta No.62-A was allotted inrespect of CTS No.4823/A-17 and Chalta No.62-B wasallotted in respect of CTS No.4823/A-18. 10. It is one thing to say that there does notexist any ambiguity as regards description of the suitland in the plaint with reference to the boundaries asmentioned therein, but it is another thing to say thatthe land in suit belongs to the respondents. It wasfor the plaintiffs to prove that the land in suitformed part of CTS Nos.4823/A-17 and 4823/A-18. Itwas not for the defendants to do so. It was,therefore, not necessary for them to file anapplication for appointment of a Commissioner nor wasit necessary for them to adduce any independentevidence to establish that the report of the Advocate https://hcservices.ecourts.gov.in/hcservices/ Commissioner was not correct. The suit could not havebeen, therefore, decreed inter alia on the basis ofExt.P-35 alone. In a case of this nature, evenSection 83 of the Evidence Act would not have anyapplication." 17. That was a case where the document of title relating to theproperty in dispute was not produced by the plaintiff who sought formandatory injunction and also prohibitory injunction. Just byproducing a certified map, an attempt was made by the plaintifftherein to establish the title to the property with a view to get anorder of permanent injunction and prohibitory injunction. In such acontext, the Supreme Court observed that there was no necessity forthe defendants, when the title to the suit property was notestablished by the plaintiffs, to go in for appointment of acommissioner or to attack the report of the advocate commissioner orto let in independent evidence. 18. In the instant case, the respondents have produced, in allfairness, the documents under which they claim their right over thewater course. Of course, the appellants also produced theirdocument of title before the court. But, none of the documents,unfortunately, referred to the lie of the water course. In theabsence of which, the court will have to analyse the oral evidenceand the other evidence available on record to determine thepreponderance of probabilities to come to a decision as to whoactually is the owner of the subject property.19. It is the consistent case of the respondents that the watercourse lies only within the property purchased by them under Exs.A1to A3. The lie of the water course pointed out by the learnedadvocate commissioner also wound unerringly indicate that the watercourse lies only within the property of the respondents. Therefore,there is nothing wrong in relying upon the report of the advocatecommissioner and the plan produced by him to buttress the oralevidence let in on the side of the respondents. 20. The Trial Court as well as the first appellate court hasrightly analysed the evidence available on record and come to adecision that the respondents are entitled to declaration of titleand also for permanent injunction with respect to the water course(kodikkal). No other substantial question of law has arisen in thesecond appeal. The factual finding rendered by the Trial Court aswell as by the first appellate court does not warrant interference. https://hcservices.ecourts.gov.in/hcservices/

21. In view of the above, both the second appeals standdismissed. There is no order as to costs. ssk. Sd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1. The Subordinate Judge, Coimbatore. 2. The District Munsif, Coimbatore.3. The Section Officer, VR Section, High Court, Madras.+ 1 cc to Mr.T.M.Hariharan, Advocate SR No.37312MBS(CO)SR/8.12.2009S.A.Nos.1157 & 1249 of 1995