✦ High Court of India · 30 Jan 2025

High Court · 2025

Case Details High Court of India · 30 Jan 2025

Court

High Court of India

Decided

30 Jan 2025

Bench

R.N.MANJULA

Length

2,078 words

S.A.No. 851 of 2013IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.01.2025CORAM:THE HONOURABLE Ms. JUSTICE R.N.MANJULAS.A. No.851 of 2013and M.P.No.1 of 20131. Jaganathan2. Regunathan3. Baskar4. Rathinavel5. Chandra6. Sathiya7. Sarala8. Sathiaraj @ Sudarshan ... Appellants / Defendants Vs.Sathasivam ... Respondent / PlaintiffSecond Appeal is filed under Section 100 of Civil Procedure Code, 1908, against the judgment and decree of the Sub Court, Mannargudi, dated 31.07.2012 made in A.S.No.27/2009 reversing the judgment and decree of District Munsif Court, Mannargudi dated 23.12.2008 made in O.S.No.154/2006.1/12 https://www.mhc.tn.gov.in/judis S.A.No. 851 of 2013 For Appellants : Mr.Arunbabu for Mr.R.Jawahar For Respondents: Mr.S.T.P.Koilmozhi JUDGMENTThe Second Appeal against the judgment and decree of the Sub Court, Mannargudi, dated 31.07.2012 made in A.S.No.27/2009 reversing the judgment and decree of District Munsif Court, Mannargudi dated 23.12.2008 made in O.S.No.154/2006.2. The defendants are the appellants. The plaintiff has filed a suit seeking the relief of declaration and permanent injunction in respect of the suit property. The trial Court dismissed the suit. The first appeal preferred by the plaintiff was allowed and the suit was decreed. Aggrieved over that the defendants have preferred this second appeal.3. The facts pleaded in the plaint filed by the plaintiff in short:The suit property was originally belonged to one Ponnusuamy Vanniyar by virtue of a registered sale deed dated 27.01.1954. After his lifetime an oral partition was effected between his legal heirs and the suit 2/12 https://www.mhc.tn.gov.in/judis S.A.No. 851 of 2013property was alloted to the plaintiff's father. There is an irrigation channel situated on the eastern side of the suit property which runs South-North. The defendants who are the neighbouring land owners have destroyed the same and annexed it with their lands. The existence of the irrigation channel has been mentioned in the plaintiff's grandfather's sale deed and the sale deed of the first defendant's father in the year 1914. The very same irrigation channel was the source for irrigation of the properties of the defendants situated on its east. The plaintiff is getting water from the channel by cutting across the western bund from the channel. In fact with regard to the bund an earlier suit has been filed in O.S.No.591/1993 by the plaintiff and the same was withdrawn on 08.04.1995. Since problem has arisen subsequently, an enquiry was made by the Tahsildar, Mannargudi and approval has been given to have a small channel in the suit property and to utilize the water from the irrigation channel by both the plaintiff and the defendants and to that effect an agreement was arrived at on 16.10.1997. Now the defendants claims that they have right over the exclusive channel created by the plaintiff to get water from the main channel to their lands. So the plaintiff has filed the suit for seeking the relief of declaration and permanent injunction.3/12 https://www.mhc.tn.gov.in/judis S.A.No. 851 of 20134. The averments made in the written statement filed by the defendants in brief:The plaintiff does not have any right over the channel and the bund and trees situated therein. The above features are enjoyed only by the defendants for a long time. The water from the irrigation channel is being used for lands in S.Nos.109, 213, 212, 211, 215, 216 and 124. Through the above lands in S.Nos.117, 116, 115 and 110 have also been irrigated. The plaintiff has not filed any documents to establish his title as claimed by him. Even though the channel might be situated in S.No.215/2, the plaintiff cannot claim any right over the same. By taking advantage of the interim injunction the plaintiff try to desecrate the channel and hence a suit in O.S.No.175/2006 has been filed. When the irrigation channel has already been there, there is no necessity to create any new channel by the plaintiff. 5. On the basis of the above pleadings, the trial Court framed the following issues: 1/ thjp jhthr; brhj;jpd; Kgikahd chpikahsuh ?2/ jhthr; brhj;J thjpapd; jdpg;gl;l mDgtj;jpYk; RthjPdj;jpYk; ,Ue;J tUfpwjh ?3/ thjp jhthtpy; nfhhpathW tpsk;g[ifg; ghpfhuk; bgw 4/12 https://www.mhc.tn.gov.in/judis S.A.No. 851 of 2013mUfuh ?4/ thjp jhthtpy; nfhhpathW epue;ju cWj;Jf;fl;lis ghpfhuk; bgw mUfuh ?5/ ntW vd;d ghpfhuk; ?6. During the course of trial, on the side of the plaintiffs three witness were examined as P.W1 to P.W.3 and Exs.A1 to A13 were marked. On the side of the defendants six witnesses were examined as D.W.1 to D.W.7 and Exs.B1 to B5 were marked. 7. At the conclusion of the trial and considering the evidences available on record, the trial Court has dismissed the suit and the first appeal preferred by the plaintiff was allowed by setting aside the judgment and decree passed by the trial Court and the suit was decreed. Now the defendants have preferred the second appeal.8. The following substantial questions of law are raised in this Second Appeal:“ 1. Whether the finding of Lower Appellate Court that the respondent / plaintiff is entitled to declaration and injunction as prayed for, is vitiated as the one based on no evidence, when he failed to prove 5/12 https://www.mhc.tn.gov.in/judis S.A.No. 851 of 2013his specific case that there exists another channel on the east of suit channel and the appellants / defendants property lies only on the east of said channel ?2. Whether the findings of Lower Appellate Court is vitiated by non-consideration of material evidence on record especially when revenue records and Advocate Commissioner's report and plan in earlier suit, falsify the existence of another channel pleaded by respondent ?9. Mr.Arunbabu, the learned counsel for the appellants / defendant, submitted that the plaintiff's property is situated on the western side of the irrigation channel and the defendant's property situated on the eastern side of the irrigation channel; even the plaintiffs and the defendant's title deeds of their ancestors would also show the boundaries in the above said pattern; so it is not right on the part of the plaintiff to claim as though there is another channel on east of the present channel running on the earth; even though the trial Court has rightly held that the plaintiff ought to have sought the relief of declaration only by impleading the Government as a party, the first appellate Court has ignored the same and had proceeded to allow the appeal by wrongly construing the facts and evidence available on record.6/12 https://www.mhc.tn.gov.in/judis S.A.No. 851 of 201310. Mr.S.T.P.Koilmozhi, the learned counsel for the respondent / plaintiff, submitted that the irrigation channel is different from the small channel which has been created by the plaintiff for taking water from bigger channel to his lands; in fact the channel was broader than what it was now on the lands and the defendants who have the western side of the channel had obliterated a portion of channel and annexed it to their lands; even the Village Administrative Officer has also stated that lands situated in S.No.215/2 belongs to the plaintiff; as the small water cut off from the big channel is used for irrigation by the plaintiff and he has been using it for the said purposes, the first appellate Court is right in allowing the appeal.11. The fact that the plaintiff and the defendants' lands are situated on the eastern and western side of the channel is not in dispute. The specific case of the plaintiff is that on the western bund, he has created a small channel in order to bring water to his lands for the purpose of irrigation and it is seen in the boundaries of sale deed of the first defendant's father Narayanasamy. The defendants also admit that first defendant's father 's sale deed of the year 1914 would show that the channel has been shown as western boundary.7/12 https://www.mhc.tn.gov.in/judis S.A.No. 851 of 201312. There was a dispute with regard to small channel created by the plaintiff on his lands and in pursuant to that a suit has been filed in O.S.No.591/1993. Even though the suit was not pressed, subsequently the Tahsildar, Mannargudi has enquired the parties and the plaintiff was allowed to create a small channel and for which the defendants also agreed.13. The first appellate Court has referred about the Commissioner's report and the plan connecting the suit in O.S.No.591/1993. The said document has been marked as Ex.A10 and in the Commissioner's report or plan, it is observed that on the western side of the plaintiff's land in S.No.215, there is a small channel running from North – South and that is situated within the plaintiff's land. However, on the further east of it the defendant's land in S.No.110 is situated. The irrigation channel is shown to be situated on the northern side of the plaintiff's land and that runs from east to west.14. In fact the Village Administrative Officer who was examined as D.W.6 is an important witness to speak about the existing features about the channel and he had deposed in his evidence that the suit channel is situated in S.No.215/2 of the plaintiff's land and that the adangal has also been 8/12 https://www.mhc.tn.gov.in/judis S.A.No. 851 of 2013registered in the name of the plaintiff. But the trial Court has omitted to rely on the above evidence. 15. It is quite possible that the plaintiff could have created small channel in his own lands to get water from East -West channel which runs on the Northern side of his lands. These features have been clearly demarcated in Ex.P10 which is the Commissioners' report filed in the earlier suit in O.S.No.591/1993 in respect of the very same property and the witness have stated about the channel which originated on the northern side of the plaintiff's property and it runs North – South and it reaches to Purakottai on the south and that was the main channel which was used for irrigating of the lands of the defendants.16. In fact the defendant's witnesses D.W.2 and D.W.3 themselves have stated in their evidence that the main channel which was already in existence would run across 1 ½ kms length and its breadth would be 16 ft. D.W.2 has also stated that a part of the above channel has been obliterated. But the small channel which is referred by the plaintiff is just 2 ft. which was created by him from the channel which runs from East-West channel on the northern side. 9/12 https://www.mhc.tn.gov.in/judis S.A.No. 851 of 201317. The channel created by plaintiff is from East-West and the main channel is seen to be running North – South inside the plaintiff's lands. If the channel in dispute is the channel belongs to the Government, that would have been shown in the Survey Number. The channel situated in S.No.215/2 is the exclusive channel belongs to the plaintiff .18. The trial Court has not properly appreciated the evidence of defendant's side witnesses especially D.W.6 and the Commissioner report filed in the earlier case and available as Ex.A10 in a proper perspective. Despite the above report establishes the fact that the small channel runs only in the lands of the plaintiff, the trial Court has not properly appreciated and has recorded the finding that the plaintiff did not prove the above fact. The above fact was rectified by the first appellate Court by reappreciating the evidence in a rightful manner and by giving attention to the details and has arrived at a right conclusion that the disputed channel is only the small channel which runs within the lands of the plaintiff and on which the defendants cannot have any right. The appreciation of the same in right perspective by the first appellate Court had resulted in allowing the first appeal by setting aside the trial Court judgment.10/12 https://www.mhc.tn.gov.in/judis S.A.No. 851 of 201319. As the matter lies only on proof of facts and its appreciation and the first appellate court has rightly done the above exercise, I do not find any question of law much less a substantial question of law arises for consideration as claimed by the learned counsel for the appellants / defendants. I find no grounds to entertain the second appeal, as it does not make out any substantial questions of law.20. In the result, the Second Appeal is dismissed and the judgment and decree, dated 31.07.2012 made in A.S.No.27/2009 on the file of the Sub Court, Mannargudi is hereby confirmed and the suit in O.S.No.154/2006 on the file of the District Munsif Court, Mannargudi is decreed. No costs. Connected miscellaneous petition is closed.30.01.2025Index:Yes/NoSpeaking Order / Non-speaking orderNeutral Citation Case : Yes / Nobkn11/12 https://www.mhc.tn.gov.in/judis S.A.No. 851 of 2013R.N.MANJULA, J.bknTo:1. The Sub Court, Mannargudi2. The District Munsif Court, MannargudiS.A. No.851 of 201330.01.202512/12

Find similar cases Start drafting free

This is the original judgment text as indexed from the source corpus. Always verify against the official court record before relying on it in a filing — you can do so on eCourts or the Supreme Court of India website. ← Search more judgments