Sankar v. Jainab Bi

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 25.06.2009CORAM:THE HON'BLE MR. JUSTICE M.DURAISWAMYSecond Appeal No.902 of 2000 Sankar ..Appellant/Plaintiff Vs 1. Jainab Bi2.Jaibunissa ..Respondents/DefendantSECOND APPEAL filed under Section 100 of the Code of CivilProcedure judgment and decree dated 29.11.1999 made in A.S.No.1 of1998 on the file of the Subordinate Judge, Kallakurichi reversingthe judgment and decree dated 26.11.1997 in O.S.No.253 of 1993 onthe file of the Court of Principal District Munsif, Kallakurichi. For Appellant: Mr.R.SingaravelanFor Respondents: Ms.P.T.Asha for M/s.Sarvabhauman AssociatesJ U D G M E N T The above Second Appeal arises against the judgment and decreein A.S.No.1 of 1998 on the file of Sub Court, Kallakurichi reversingthe Judgment and Decree in O.S.No.253 of 1993 on the file of Principal District Munsif, Kallakurichi.

The plaintiff in the suit is the appellant in the abovesecond appeal. The respondents are the defendants in the suit.

The plaintiff filed the suit in O.S.No.253 of 1993 on thefile of Principal District Munsif, Kallakurichi to declare that he isthe absolute owner of the land measuring 0.02¼ cents out of 0.09cents in S.No.40/7 in Manalur Village, Kallakurichi Taluk and for1/4th share in the well in S.No.40/7 and for recovery of possessionand for permanent injunction restraining the defendants from drawingwater from the suit well to other lands.

The brief facts of the plaintiff is as follows: - According to the plaintiff, he purchased the suit propertyunder a registered sale deed dated 7.1.1986 along with other https://hcservices.ecourts.gov.in/hcservices/ properties from one Velayuda Chettiyar. According to the plaintiff,a sum of Rs.15,000/- was spent for digging the well in S.No.40/7.The plaintiff paid a sum of Rs.2,500/- towards his share for diggingthe well. Therefore, According to the plaintiff, he is entitled to1/4th share in the well. According to the plaintiff, the defendantsare entitled to 3/4th share in the suit well. Since the defendantsdenied the share of the plaintiff in the suit land and that they aredrawing water from the suit well to their lands situate in othersurvey numbers, the plaintiff filed the suit.

The brief case of the defendants is as follows: The first defendant in her written statement filed at the firstinstance contended that there is no well in S.No.40/7. According tothe first defendant, she had spent Rs.15,000/- for digging a well inS.No.40/5 and that she is entitled to take water from the well, according to her will and wish. The said written statement was filedon 19.4.1993. Subsequently, the first defendant filed an additionalwritten statement dated 10.4.1996. In the said additional writtenstatement, the first defendant stated that even if the suit well isin S.No.40/5 or 40/7, the lands and the well belong to her. According to the first defendant, she purchased an extent of 0.04½cents out of 0.09 cents in S.No.40/7 under a registered sale deeddated 30.4.1983 from the vendor Kaniyan Chetti. On the north of thesuit land, the second defendant purchased 2.1/4 cents under a saledeed dated 7.1.1986. According to the first defendant, on the northof the said land is plaintiff's land measuring 2.1/4 cents.

Before the trial court, the plaintiff was examined as P.W.1and marked 2 documents Exs. A-1 and A-2. On the side of thedefendants, 2 witnesses were examined but no document was marked. The Advocate Commissioner's report and plan were marked as Exs. C1and C2.

The trial court after taking into consideration the oral anddocumentary evidences of both the parties, found that the existenceof the well in S.No.40/7 and also found that the suit well was dugby the plaintiff and defendants commonly. But the trial court alsofound that even if the first defendant that the well in S.No.40/7without the consent of the plaintiff, then also the plaintiff isentitled to share in the suit well. On these findings, the trialcourt decreed the suit.

Aggrieved over the judgment and decree of the trial court, the defendants filed an appeal in A.S.No.1/98 on the file of SubCourt, Kallakurichi. The lower appellate court after consideringthe materials available on record, found that since the plaintiffhad purchased the property under Ex.A2 sale deed dated 7.1.1986 withspecific boundaries, the suit property cannot be termed as undivided https://hcservices.ecourts.gov.in/hcservices/ property. On this ground the lower appellate course reversed thejudgment and decree of the trial court and allowed the appeal.

Aggrieved over the judgment and decree of the lowerappellate court, the plaintiff had preferred the above second appeal.

Heard Mr..R.Singaravelan, learned counsel appearing for theappellant, Ms.P.T.Asha, learned counsel appearing for therespondents.

At the time of admission of the above Second Appeal, thefollowing substantial question of law arose for consideration:-" Whether the findings of the lower appellatecourt that the appellant/plaintiff is in possession andenjoyment of the suit property is correct in law andwhether the first appellate court was right indismissing the entire suit?"The learned counsel for the appellant also raised thefollowing substantial questions of law in the memorandum of groundsof the second appeal:-" i) Whether the interpretation of Exs. A2, C1and C2 by the lower appellate court is correct in law?ii)Whether the finding of the lower appellatethat the appellant/plaintiff is in possession andenjoyment of the suit property separately is correct inlaw?iii) Whether the judgment and decree of thelower appellate court in allowing the appeal eventhoughthe respondents/defendants have admitted the title andpossession of the appellant/plaintiff in respect of hislands in Survey No.40/7 is correct in law?12. Learned counsel for the appellant contended that thefindings of the lower appellate court is not correct for the reasonthat the lower appellate court found that the appellant/plaintiffpurchased 2.1/4 cents under Ex.A2 in S.No.40/7 with specificboundaries and that a perusal of the Ex.A2 sale deed will show thatthe specific boundaries in S.No.40/7 was not given and theboundaries mentioned in the sale deed is for the entire extent of23¼ cents. Learned counsel for the appellant also contended that theappellant purchased only undivided share in S.No.40/7.

The learned counsel for the appellant also contended thatsince the respondents/defendants having undivided share in theproperty, if the respondent/defendant had dug the well in the https://hcservices.ecourts.gov.in/hcservices/ undivided common land in S.No.40/7 without the consent of theappellant/plaintiff, the well should be construed as a common well. For this submission, learned counsel for the appellant/plaintiffrelied on a judgment reported in AIR 1965 Kerala 207 (Mammathu andothers v. Kathijumna). From the above judgment, it could be seenthat a co-owner making improvement without the concurrence or withthe clear understanding that he would be compensated, is no betterthen a volunteer and cannot expect any compensation for suchimprovement from other co-owners. The learned counsel also contendedthat the land purchased in S.No.40/7 under Ex.A2 is undivided andwell dug in the said land is common to plaintiff and defendants.

Countering the submission made by the learned counsel forthe appellant, learned counsel for the respondents submitted that theappellant/plaintiff purchased the property under Ex.A2 with specificboundaries and it is not undivided. Learned counsel also contendedthat the suit well belonging to the respondents/defendants and thelearned counsel supported the findings of the lower appellate courtand prayed for dismissal of the second appeal.

On a careful consideration of the materials available onrecord and the submissions made by both the learned counsel, it couldbe seen that the appellant/plaintiff purchased the property underEx.A2 on 7.1.1986 measuring an extent of 23¼ cents. One of theproperty in the said sale deed is in S.No.40/7 measuring an extentof 2.1/4 cents out of 9 cents. From the perusal of Ex.A2 saledeed, it could be seen that the appellant/plaintiff purchased anextent of 2.1/4 cents out of 9 cents in S.No.40/7; 12 and ¼ centsout of 49 cents in S.No.40/10; 8 and 3/4 cents out of 35 cents inS.No.40/6 totaling 23¼ cents with specific boundaries. Further itcould be seen that the respondents/defendants do not dispute thetitle of the appellant/plaintiff in respect of S.No.40/7. Further, it could also be seen from the evidence of D.W.1, who is the husbandof the first respondent/first defendant and father of the secondrespondent/second defendant, that he admitted that S.No.40/7 has notbeen subdivided and he also admitted that his wife, the firstrespondent has got half share in the property and his daughter, the second respondent has got 1/4th share in S.No.40/7 and also headmitted that the appellant/plaintiff has got 1/4th share inS.No.40/7. Further, D.W.1 also deposed that he does not knowwhether, boundaries are mentioned in the sale deed dated 30.4.1983under which the first respondent/first defendant purchased the sharein the property in S.No.40/7.

The Advocate Commissioner, who inspected the property filedhis report and plan Exs. C1 and C2. From the perusal of Ex.C1 plan, it could be seen that the suit well is in S.No.40/7 on the southernside. S.NO.40/10 and 40/6 are on the northern side of the water https://hcservices.ecourts.gov.in/hcservices/ channel. The water channel found by the Advocate Commissioner hasnot been mentioned in the sale deed. The respondents/defendantsthough they have stated that they purchased the lands under two saledeeds dated 30.4.1983 and 7.1.1986, they have not marked thosedocuments in the suit. The said documents are not available todecide whether the defendants have purchased their properties withspecific boundaries or undivided. Even the first defendant in herwritten statement filed at the first instance stated that there is nowell in S.No.40/7. But in her additional written statement statedthat even if the well is available in S.No.40/5 or in 40/7, itbelongs to her. This will show that the defendants are not comingout with the truth.

The Advocate Commissioner found the existence of the suitwell in S.No.40/7. Even in the plaint, the appellant/plaintiff statedthat the land in S.No.40/7 is undivided. The appellant/plaintiffpurchased 1/4th share in S.No.40/7 i.e. 2.1/4 cents out of 9 cents. Though the first defendant has stated that she dug a well inS.No.40/5 spending Rs.15,000/-, she has not produced any document toprove the same. Even according to the appellant/plaintiff, he didnot say that he dug the well employing his men. He says that hecontributed Rs.2,500/- for digging the well. D.W.1 stated that shedug the well spending Rs.15,000/- engaging one Dasan but she did notexamine the said Dasan to prove that the well was dug by her. Thelower appellate court found that the appellant/plaintiff purchased2.1/4 cents in S.No.40/7 under Ex.A2 with specific boundaries. Thisfinding is not correct. The appellant/plaintiff purchased theentire extent of 23¼ cents under Ex.A2 with specific boundaries andnot 2.1/4 cents in S.No.40/7. Therefore, the said finding is notsustainable. Even the first respondent/first defendant's case wasthat she dug the well in S.No. 40/7 but she does not say anythingabout the permission she got from the appellant/plaintiff for digginga well in the land in which, the appellant/plaintiff is also having ashare. The trial court have rightly came to the conclusion that thesuit well is a common well and the plaintiff is entitled to 1/4thshare. I find no error in the said finding. The finding of thelower appelalte that the appellant/plaintiff purchased 2.1/4 centsin S.No.40/7 with specific boundaries is not sustainable as statedearlier. Since it is found that the appellant/plaintiff is entitledto 1/4th share in the suit property, the trial court have rightlyfound that the plaintiff is entitled for injunction and for recoveryof possession.