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2003 DIGILAW 1030 (MAD)

R. Vellingiri & Others v. Kuppathal

2003-07-11

M.THANIKACHALAM

body2003
Judgment :- The defendants, unable to resist the suit filed by the plaintiff/respondent, successfully before the courts below, have filed this second appeal. 2. The plaintiff/respondent had filed the suit for declaration that she is entitled to the drainage channel, indicated as 'C D E F' in the plaint plan and for a consequential relief of permanent injunction against the defendants on the grounds that she is the absolute owner of the suit property, including the drainage channel, in which the defendants/appellants have no right of any kind to interfere; but contrary, they are attempting to lay a claim, which should be prevented by way of declaration, followed by permanent injunction. 3. The appellants/defendants, questioning the averments in the plaint in toto, would contend that for the last several years, the parties were draining the drainage water through the suit drain, that this customary right was attempted to be prevented by the plaintiff by illegal method, by laying a pipe, which was prevented, that in the common drain situate in the common lane, the plaintiff has no right, either to obliterate it or alter the character, in order to construct a new drain and therefore, prayed for the dismissal of the suit. 4. The trial Court upon considering the oral evidence of P.Ws.1 & 2 as well as D.Ws.1 & 2, in addition to the documentary evidence, came to the conclusion that the suit property, inclusive of the disputed drain belongs to the plaintiff/respondent, that the defendants/appellants, who claimed common right over the said lane, is not entitled to claim easmentary right, which is mutually contradictory, and that they have failed to prove by adducing any acceptable evidence, to lay a claim over the suit property. In this view of the matter, accepting the plaintiff's case and as such rejecting the defence in toto, the trial Court decreed the suit on 4.4.1991 in O.S.No.628/1988. 5. The defendants aggrieved by the decision rendered by the trial Court, impugned the same before the Sub Court, Coimbatore in A.S.No.166/91 unsuccessfully, as seen from the judgment dated 10.12.1991, which gave cause of action for them, once again to come to this Court, as appellants. 6. This Court while admitting the second appeal, framed the following substantial question of law: "Whether the courts below were right in decreeing the suit without proper appreciation of the report of the Commissioner, Ex.C.5?" 7. 6. This Court while admitting the second appeal, framed the following substantial question of law: "Whether the courts below were right in decreeing the suit without proper appreciation of the report of the Commissioner, Ex.C.5?" 7. Heard the learned counsel for either side. 8. The disputed property is a drainage channel, indicated as 'C D E F' in the plaint plan. The plaintiff/respondent, as the owner, filed the suit for declaration and injunction, succeeded, despite the resistance by the appellants. Both the courts below appreciating the oral and documentary evidence, have rendered a concurrent finding, based on facts and therefore, it is not ordinarily assailable. But impugning the said finding, the second appeal has been filed, as if substantial question of law is involved, as aforementioned. A mere reading of the point formulated would indicate, that there would be no substantial question of law and the required materials, to decide the above points are only facts. The facts, based on evidence, have been decided by the courts below and therefore, this Court, sitting in the second appeal, is not expected to reassess the same or to reappreciate the same. 9. True, Section 100 C.P.C. provides second appeal, provided substantial question of law is involved and mandating the Court to formulate the same, thereby directing the respondent to argue that the case does not involve such a question. Prima facie, if it is brought to the notice of this Court that the courts below have not properly appreciated the evidence on record and came to the incorrect conclusion, thereby they rendered a finding contrary to the facts, perverse in nature, unsustainable in law, then power of the High Court is not curtailed, to reassess or to reappreciate the evidence on record, in order to render real justice to the community. My effort in reading the judgments of courts below, failed to bring anything adverse, to conclude that the findings are not based on fact or there are any contradictory findings or the findings are perverse in nature, thereby giving jurisdiction of this Court to interfere. Elaborately, both the Courts have analysed the facts, applied their minds, arrived a just conclusion, which does warrant confirmation and does not require any modification or reversion. 10. Elaborately, both the Courts have analysed the facts, applied their minds, arrived a just conclusion, which does warrant confirmation and does not require any modification or reversion. 10. The learned counsel for the appellants contended that the non appreciation of the Commissioner's Report viz., Ex.C.5 is a question of law, which was not properly appreciated by the courts below and therefore, the indulgence of this Court is an unavoidable one to render justice, further since, the findings are contradictory to the evidence. 11. Per contra, the learned counsel appearing for the respondent would contend, that even as per the admission of D.W.1, the defence is liable to be thrown out as did by the courts below and therefore, confirmation alone is the possible view and to interfere with the findings of the courts below, no chance at all. 12. In order to appreciate the facts in issue, assuming that there is some contradictory finding, we have to see the location of the property belongs to the plaintiff as well as the disputed drainage. The disputed drainage starts from the bathroom of the plaintiff's house on the east, then runs towards west, no dispute. On the southern side of the suit drainage channel, plaintiff's house as well as vacant space are lying. On the north of the disputed drainage, defendants are owning their properties. The defendants being the neighbours on the northern side of the suit channel, attempted to drain the sewage water from their house into the suit channel, which gave cause of action for the plaintiff, to come to the court, as said above. 13. The Commissioner has also inspected the premises, filed sketches as well as reports, which are exhibited as Exs.C1 to C5. The Commissioner's Report, if at all, would help the court in localising the property in dispute as well as to know the physical features of the same. At any rate, the Commissioner's Report will not prove the title to the suit property. If the Commissioner had measured the properties belonging to the plaintiff and the defendants as well as the disputed property, then came to the conclusion that the disputed property should be within the defendants' property or within the plaintiff's property, then alone coupled with other documents, the Commissioner's report would be a useful evidence. If the Commissioner had measured the properties belonging to the plaintiff and the defendants as well as the disputed property, then came to the conclusion that the disputed property should be within the defendants' property or within the plaintiff's property, then alone coupled with other documents, the Commissioner's report would be a useful evidence. To solve the dispute in this case, the Commissioner though visited twice and prepared sketch and reports, failed to measure the properties and failed further to locate the suit property, whether it lies within the boundary limit of the plaintiff or within the boundary limit of the defendants/appellants. In this view of the matter, the non appreciation or non acceptance of the Commissioner's Report viz., Ex.C.5, automatically will not take us to the conclusion that the Courts below have failed in their duty or failed to conclude that the plaintiff is not the owner of the disputed channel. When the Commissioner's Report is not clear, not prepared after measuring the properties, then we must go to the oral evidence and the documents produced by the parties, to fix the disputed property. Therefore, on the basis of the Commissioner's Report alone that the sewage water of the defendants' houses could be drained into the suit channel, a conclusion could not be drawn, as if the defendants would have enjoyed the same, either as common owners or as that of easement of necessity. Since the defendants/appellants have claimed title over the disputed portion as that of common owners along with others, then the question of easementary right would not arise for consideration, the fact being they are mutually contradictory cutting each other. Having taken two stands, it is left to the parties to elect at the time of the trial and in this view, if the defendants have elected to claim the issue urged, then that could be considered to some extent. But, as seen from the evidence as well as pleadings, nowhere the defendants have chosen to elect and in this view of the matter, the easementary right claimed and the feeble attempt made before this Court also could not be accepted and the same should be rejected as did by the Courts below concurrently, and correctly also. 14. But, as seen from the evidence as well as pleadings, nowhere the defendants have chosen to elect and in this view of the matter, the easementary right claimed and the feeble attempt made before this Court also could not be accepted and the same should be rejected as did by the Courts below concurrently, and correctly also. 14. Therefore, the only question now survives for consideration is, whether the suit channel or the suit drain forms part of the plaintiff's property or it is a common drain as claimed by the appellants. Originally, as contended before me by the learned counsel for the defendants, the suit property and the adjacent properties belonged to one Paramanantha Gounder, who had four sons by name Nanjappa Gounder, Chinna Nanjappa Gounder, Narayana Gounder and Alagappa Gounder. The defendants are the descendants of Paramanantha Gounder and they are in possession and enjoyment of their respective houses, appurtenant to the vacant space, on the northern side of the disputed channel, no dispute. It seems the plaintiff had purchased a portion of the land held by Alagappa Gounder and Narayana Gounder. In this view of the matter, it should be construed that the parties are enjoying their respective properties, which were originally owned by common ancestors; though the plaintiff is a stranger to the family, came to be in possession of the property by virtue of the purchase from the descendants of Paramanantha Gounder. But, it is not the acceptable case of the defendants that the suit property or the disputed channel are kept at any point of time, as common property for the effective user of the adjacent properties. Therefore, if it is proved that the plaintiff became the owner of the suit drainage by virtue of purchase or otherwise, then the defendants cannot lay a claim successfully. On the otherhand, if it is shown, either by oral evidence or otherwise that the disputed property is outside the plaintiff's admitted property, on the northern side, then he has no business to claim for declaration as well as consequential relief of permanent injunction. 15. The plaintiff as P.W.2 and her son as P.W.1 have testified before the trial Court about their ownership based on the partition deed, Ex.A1 as well as by the subsequent payment of house tax, electricity charges, etc. under Exs.A2 to A12. The above documents are not challenged. 15. The plaintiff as P.W.2 and her son as P.W.1 have testified before the trial Court about their ownership based on the partition deed, Ex.A1 as well as by the subsequent payment of house tax, electricity charges, etc. under Exs.A2 to A12. The above documents are not challenged. Ex.A1, partition deed would indicate, that the entire property including the disputed channel was allotted to the share of the plaintiff. The allotment of the property under Ex.A1 is also not seriously questioned. They have given evidence that the disputed channel comes within their boundary, on the north. The recitals in the partition deed also are to the same effect. Whether they bind the defendants or not, the case so established by the plaintiff, is well admitted by D.W.1 as well as D.W.2 also. D.W.2 candidly admits that the disputed drainage channel was in the enjoyment of the plaintiff's family for the past 35 years and the northern boundary of their property is the drainage channel. In view of the admission made by D.W.2, the trial Court as well as the first appellate Court, has come to a irresistible conclusion that the drainage, inclusive of belongs to plaintiffs. Therefore, as rightly held by the first appellate Court, only on the basis of Ex.C.5, title of the plaintiff cannot be negatived. 16. In Ex.C.5, the Commissioner has observed that there was a well laid drainage, cemented with bricks till the middle of the land, afterwards the same was laid with lengthy stones connecting suit drainage. It seems, in order to ascertain whether the water would flow from the said channel to the suit channel, practical method was adopted by the Commissioner, which proved free flow of water and it also reached the suit drainage corner. 17. On the strength of the above said report, it was contended by the learned counsel for the appellants, Mr. R.G. Narendhran, that the suit channel was used by the defendants to drain their drainage water and it should be held as an easementary of necessity. As aforementioned, this right is not available to the defendants, since they failed to locate or failed to prove that they have no other alternative way to discharge the drain water. As admitted by D.W.1, one Marudhachalam had constructed the drainage channel and drained the water to the Panchayat drainage channel, which is very near to him than the suit channel. As admitted by D.W.1, one Marudhachalam had constructed the drainage channel and drained the water to the Panchayat drainage channel, which is very near to him than the suit channel. The same method could be adopted by the defendants also as admitted by D.W.2, who has deposed that through his compound, sewage water could be drained into the Panchayat drain. 18. The contention of the learned counsel for the defendants that the site is on the higher level than the defendants' properties, may not be a ground to drain the water on the south, a low lying area, over which the defendants have no right, either under the document or under any other usage known to law, to be recognised. Thus, from the admission of the defendants also, it could be safely concluded that the suit channel belongs to the plaintiff, in which the defendants have no right. The evidence further would indicate, that the defendants are all not residing in the respective houses and therefore, the question of draining the water from their house to the suit channel uninterruptedly to the period known to law, to prescribe right by user, is also not available in this case. Both the courts below have elaborately and diligently discussing the evidence and analysing the admitted facts, came to a just and proper conclusion without any error, either on facts or on law and that kind of concurrent finding could not be termed as perverse or contradictory to the evidence, so as to say that this Court should interfere, sitting in the second appeal. The foregoing reasons would lead us to the unavoidable conclusion that the second appeal is devoid of merits, requiring out right rejection. Hence this point is answered accordingly. The result therefore is the second appeal is dismissed with costs.