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2004 DIGILAW 697 (MAD)

Chandra v. N. Reddappa Reddy

2004-04-23

M.CHOCKALINGAM, N.V.BALASUBRAMANIAN

body2004
Judgment :- M. CHOCKALINGAM, J. 1. This civil miscellaneous appeal is brought forth from the judgment of the learned VI Additional City Civil Judge, Chennai, made in A.S. No. 126 of 2002, wherein the judgment of the trial Court namely the V Assistant City Civil Judge, Chennai, in O.S. No. 3736 of 2000 was partly set aside, and an order of remittal was passed in that regard. 2. The first respondent as plaintiff filed a suit in O.S. No. 3736 of 2000 seeking for (i) permanent injunction restraining the defendants 1 and 3 from interfering with the plaintiffs property in putting up gate, compound wall, development of the plots, usage of plots in any manner the plaintiff wants for plot Nos. 21 and 22, II Street, Chockalingam Nagar Colony, Gopalpuram, Vellala Teynampet, Chennai; (ii) declaration that Clause 3 of the partition deed dated 29.10.1906 relating to drawing of water from the well in plot No. 22, by using the irrigation method of yetram etc., to do cultivation is not valid and cannot be enforced as it is prohibited in the City of Chennai in view of the prohibition of cultivation in the City by legislation and also by other laws; and (iii) permanent injunction restraining the defendants 1 to 3 from drawing water in plot No. 22 by using the irrigation method of yetram etc., and from drawing water for cultivation as it is prohibited in the City of Chennai in view of the prohibition of cultivation in the City by legislation and other laws, alleging that he is the owner of the two plots namely plot Nos. 21 and 27 in Survey Nos. 1330/1, 1330/2 and 1330/3 (part); that the extent of plot No. 21 is 2336 sq. ft., while the extent of plot No. 22 is 2272 sq. 21 and 27 in Survey Nos. 1330/1, 1330/2 and 1330/3 (part); that the extent of plot No. 21 is 2336 sq. ft., while the extent of plot No. 22 is 2272 sq. ft.; that a well is situated in plot No. 22; that the two brothers namely Sivasankaran Mudaliar and Appadurai Mudaliar had a family partition deed dated 29.10.1906, whereby the eastern side property has been allotted to Sivasa nkaran Mudaliar, while the western side was allotted to Appadurai Mudaliar; that both of them will have right to draw water from the wells; that they were using water from the wells for doing cultivation; that the word “Yetram” was used in the partition deed; that the old method of yetram was abandoned, when the electricity has come; that the family members of Appadurai Mudaliar sold the major portion of their plots to various persons, and the people also built houses in the plots; that the family members of Sivasankaran Mudaliar were having an evil eye on the plots belonging to the plaintiff; that there is also another well in the portion of Sivasankaran Mudaliar; that Appadurai Mudaliars family had right over the well situated in plot No. 22; that regarding the well, the daughter of Sivasankaran Mudaliar and wife of Krishnaswamy Mudaliar namely Suseela filed a suit in O.S. No. 659 of 1965 against Appadurai Mudaliars family; that the said suit ended with the judgment of the Honble High Court in the second appeal dated 17.12.1976; that the said Suseela instituted another suit in O.S. No. 5454/76 against the members of Appadurai Mudaliar seeking the same reliefs as sought for in O.S. 659/65; that O.S. 5454/76 was decreed in her favour; that an appeal in A.S. 182/86 therefrom has been partly allowed and the judgment of the trial Court was modified; that the erstwhile owners of the plaintiff filed S.A. No. 1332/89, which has been dismissed on 22.9.89; that the Special Leave Petition in No. 3651/89 was also dismissed on 14.2.1991; that Suseela filed S.A. No. 1758/88 against the judgment in A.S. 182/86; that the erstwhile owners of the plaintiff filed O.S. No. 6140/89, and the same has been decreed, against which an appeal was preferred in A.S. No. 873/94, which was taken up along with S.A. 1758/88; that S.A. 1791/82 preferred by Appasamy Mudaliars family against A.S. 234/81 was also taken up; that all the three apples were heard together and orders were passed by the Honble High Court on 22.9.1997 allowing the appeals of Suseela, in that O.S. No. 5454/76 has been decreed; that the defendants 1 to 3 were deriving their right over the well; that the only right is to draw water by means of yetram, etc; that the neighbours issued a notice to the plaintiff to close the well because of mosquito menace; that the Corporation issued a notice to the plaintiff indicating that the well should be demolished; that the defendants are keeping the well only to grab the property of the plaintiff; and that the defendants do not have any right in the enjoyment of the property at plot Nos. 21 and 22. 3. After entering appearance, the first defendant filed I.A. No. 12277 of 2000 seeking a dismissal of the suit. The plaintiff was given an opportunity for filing his counter. The learned V Assistant City Civil Judge, after hearing both sides, rejected the plaint under Order 7 Rule 11 of C.P.C. Aggrieved, the plaintiff took it on appeal in A.S. No. 126 of 2002. The learned VI Additional City Civil Judge, after hearing the rival submissions, allowed the appeal, set aside the judgment of the trial Court and passed an order of remittal with a direction to the trial Court to take O.S. No. 3736 of 2000 on file, give sufficient opportunity to both the parties and dispose of the same in accordance with law. Aggrieved over the said order of remand, the first defendant has brought forth the instant C.M.A. 4. Advancing his arguments on behalf of the appellant, the learned Senior Counsel Mr. R. Thiagarajan, would submit that the first appellate Court has not considered the real controversy between the parties; that the finding of the lower appellate Court that the suit is maintainable is contrary to the finding that prayer ‘C’ cannot be sustained; that the plaint as filed is not maintainable, since the same would amount to re-litigating the matter once again; that the relief ‘C’ sought for by the plaintiff would amount to the rejection of the plaint in part; that the complaint alleged to have been given on 12.5.2000 to the Assistant Commissioner of Police cannot be relied on for the purpose of cause of action, as such right has already been declared in favour of the appellant in the earlier proceedings; that in the absence of any specific provisions under the Tamil Nadu Public Health Act, prohibiting the appellant from using the well in the plaint Schedule property, the lower appellate Court was not justified in permitting the first respondent to raise such a plea; that it is pertinent to note that both the plots Nos. 21 and 22 form part of the suit property; that the present suit is not maintainable under Sec. 11 of C.P.C.; that the lower appellate Court should not have permitted the parties to re-agitate the issue with regard to the right over the well, when it has already been decided in the earlier proceedings, and hence, the judgment of the first appellate Court has got to be set aside, and the judgment of the trial Court be restored. 5. Relying on the following decisions, the learned Senior Counsel for the appellant would submit that where an express provision is made to meet a particular situation, the code must be observed and departure therefrom is not permissible. (i) AIR 1931 Madras 175=(1930) 32 L.W. 810 (Venkata Rangiah and another v. Secretary of State and others); (ii) AIR 1999 Supreme Court 1128 (D. Ramachandran v. R.V. Janakiraman and others); (iii) AIR 2000 Punjab and Haryana 44 (ABN-AMRO Bank v. The Punjab Urban Planning And Development Authority); (iv) (2000)II MLJ 136 (Dr. Ravichander v. Karunakaran and others); and (v) (2003) 8 Supreme Court Cases 319 = 2004-2-L.W. 70 (Ram Chandra Singh v. Savitri Devi and others). 6. This Court has also heard the learned Counsel Mr. A. Venkatesan, appearing for the first respondent, on those contentions. 7. This Court paid its full attention on the rival submissions made and made a thorough scrutiny of the materials available. After careful consideration of the same, this Court is of the firm opinion that this appeal is bereft of merits. 8. The prime contention raised by the appellants side is that the first appellate Court has rejected the plaint in part, which would be nothing but permitting the first respondent/plaintiff to present the plaint in part to continue the proceedings, as per the provisions under Order 7 Rule 11 of C.P.C.; that the plaint as filed was not maintainable; that it amounted to re-litigation, in view of the earlier decisions rendered by this Court in S.A. No. 1758 of 1988 pertaining to the same subject matter, and hence, the first appellate Court should have affirmed the order of the trial Court by making an outright rejection of the plaint. 9. 9. As could be seen from the impugned order, the first appellate Court has affirmed the finding of the trial Court in respect of the relief ‘C’ for permanent injunction restraining the defendants to draw water in plot No. 22 described in the plaint Schedule by using the irrigation method of Yetram etc., and to draw water for cultivation as it is prohibited in the City of Chennai. It remains to be stated that the relief ‘C’ was pertaining to a well, which is situated in between the properties and led to the prolonged litigation between the parties, and the same was finally decided by a judgment of this Court in S.A. No. 1758/88. Hence, the first appellate Court, in view of the judgment of this Court in S.A. 1758/88, thought it fit that the parties should not be allowed to re-litigate the matter and then, has affirmed the order of rejection made by the trial Court in respect of the relief ‘C’ in the original plaint. 10. The order of rejection of reliefs ‘A’ and ‘B’ of the original plaint made by the trial Court was set aside by the first appellate Court and rightly too. So far as the relief ‘A’ was concerned, it was for a permanent injunction restraining the defendants 1 to 3 not to interfere with the plaintiffs property in putting up gate, compound wall, development of the plots, usage of plots in any manner the plaintiff wants for plot Nos. 21 and 22 more fully described in the plaint Schedule. The plaint Schedule immovable property is described as “Plot Nos. 21 and 22, Layout Nos. 53/61 and 72/57 in R.S. No. 1395, T.S. Nos. 1330/1, 1330/2, 1330/3 situate in Mylapore Village, Muthiah Mudali Street, Vellala Teynampet presently called as Second Street, Chockalingam Nagar Colony, Gopalapuram, Chennai 600086. Extent: Plot No. 21 admeasuring 2336 sq. ft. Plot No. 22 admeasuring 2272 sq. ft. with a well thereon” Thus, the total area of plot No. 21 would measure 2336 square feet and plot No. 22 would measure 2272 square feet, totalling to 4608 square feet. At this juncture, it has to be pointed out that the property covered under the earlier proceedings, which culminated in S.A. No. 1758/88, was only a well and a small area of 25 feet around the well, which formed only a part of the property in the instant suit. At this juncture, it has to be pointed out that the property covered under the earlier proceedings, which culminated in S.A. No. 1758/88, was only a well and a small area of 25 feet around the well, which formed only a part of the property in the instant suit. Hence, it would be futile to contend that the properties covered under both the suits are the same. 11. So far as the relief ‘B’ was concerned, it was for a declaration that Clause 3 of the partition deed dated 29.10.1906 relating to the drawing of water from the well in plot No. 22 by using the irrigation method of yetram etc., to do cultivation is not valid and cannot be enforced, as it was prohibited in the City of Madras, in view of the prohibition of cultivation in the City by Legislation and also by the other laws. It is not in controversy that there was a partition entered into between the original owners of the property in the year 1906, and Clause 3 thereunder was relating to the drawing of water from a well situated in plot No. 22. It is also not in controversy that the rights of the parties in respect of the well have already been adjudicated upon. It is pertinent to point out that the plaintiff has sought for a declaration that the Clause 3 of the partition deed, relating to the drawing of water from the well, has to be declared as not valid and cannot be enforced, in view of the prohibition of cultivation in the City by Legislation and also by the other laws. Though pursuant to the partition deed, the parties had got the right of taking the water from the well in question, the plaintiff has come forward seeking a declaration that the particular Clause was not valid and could not be enforced in view of the prohibition. 12. The plaintiff has specifically averred that he was served with a notice by the Corporation on 13.3.2000 to close the well under 1983-1984 Tamil Nadu Public Health Act, and on 4.5.2000, the Corporation has given a notice to the plaintiff to demolish the well. 12. The plaintiff has specifically averred that he was served with a notice by the Corporation on 13.3.2000 to close the well under 1983-1984 Tamil Nadu Public Health Act, and on 4.5.2000, the Corporation has given a notice to the plaintiff to demolish the well. It is also further averred that the plaintiff was questioning the validity of the Clause in the partition deed, in view of the change of legislation, abolition of agriculture in the city, right of Corporation to close open wells in order to control mosquito menace and abandoning age old methods to draw water, and the cultivation was prohibited in the City, and there was no method of Yetram, etc., now to draw water from the wells to do cultivation. Hence, there cannot be any legal impediment in asking for or granting such a relief, if the plaintiff is able to prove that he was entitled to the same. This Court is of the view that the decisions relied on by the learned Senior Counsel for the appellant and stated supra are not applicable to the present facts of this case. 13. For the foregoing reasons, this Court is of the firm view that the necessary issues have got to be raised and have to be investigated on the evidence, to be adduced by both the parties. In such circumstances, it cannot be stated that the first appellate Court has dissected the reliefs either, or the reliefs asked for in the plaint were inter linked or inter-connected. This Court is unable to notice any merit in all or any one of the contentions put forth by the appellants side. 14. In the result, this civil miscellaneous appeal is dismissed, leaving the parties to bear their costs. Consequently, connected CMP is also dismissed.