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2011 DIGILAW 4178 (MAD)

A. Munusamy v. A. Govindaraj

2011-09-30

R.S.RAMANATHAN

body2011
JUDGMENT :- 1. The plaintiff in O.S.No.92 of 1998 on the file of the District Munsif-cum-Judicial Magistrate Court, Omalur, is the appellant. 2. The appellant/ plaintiff filed the suit for declaration that the suit Well belongs to him and for injunction restraining the 1st defendant from interfering with his right and enjoyment of the Well. The case of the plaintiff/ appellant was that the property in S.No.357/3 having an extent of 2.95 acres belonged to the family of the appellant and 1st respondent who are brothers and it is their ancestral property and they orally divided the property in the year 1980 and under the oral partition the appellant and the 1st respondent took one acre each and giving one acre to their mother Perumayammal. It was further stated that in the oral partition the Well in Survey No.357/3B was allotted to the share of the appellant/ plaintiff and he is enjoying the property. As the 1st respondent attempted to claim right over the Well, the suit was filed for declaration and injunction. 3. The 1st respondent/1st defendant contested the suit stating that the suit property in S.No.357/3 having an extent of 2.95 acres belonged to them ancestrally and both the appellant, the 1st respondent and their mother applied loan for digging the Well in the suit property by executing a mortgage deed dated 14.8.1972 in favour of the Co-operative Society and all of them were enjoying the property in common and in the family arrangement between the appellant, 1st respondent and their mother during the 3rd week of Thai 1980 the northern extent of 1.50 acre was allotted to the 1st respondent with half share in the suit Well and the remaining extent of 1.30 acre on the southern side with half share right in the Well and the land where the Well is situate was also allotted to the plaintiff/ appellant and both of them jointly installed Oil Engine purchased in the year 1992 and in the UDR scheme the 1st respondent/ 1st defendant was given patta in respect of S.No.357/3A and patta for the Well was given in favour of the appellant as the same was allotted to the appellant under the oral partition and the suit Well is a common Well and the appellant cannot claim exclusive right over the same. He further contended that he is taking water from the Well by laying under ground PVC pipe line from the Well to his property and later the joint patta was given in respect of the Well in the names of the appellant and the 1st respondent and therefore the suit for declaration is not maintainable. He further submitted that the appellant filed the suit in O.S.No.229 of 1990 against the 1st respondent for permanent injunction in respect of the suit property and Panchayat was held and as per the advice of the Panchayatars the appellant executed a letter acknowledging the right of the 1st respondent in the Well and thereafter withdrew the suit and that would also prove that the appellant/ plaintiff cannot claim any exclusive right over the suit property. 4. The trial Court decreed the suit holding that the 1st respondent/1st defendant did not prove Ex.B7 the letter of undertaking alleged to have been executed by the appellant and even as per the Commissioner's report no PVC pipe line from the Well leading to the property of the 1st respondent was found and in the revenue records in the year 1985 the suit Well was assessed in the name of the appellant and therefore the case of the 1st respondent that the Well is a common Well cannot be believed. The lower appellate Court reversed the findings of the trial Court and held that even as per the admission of the appellant it was proved by the 1st respondent that the Well is a common Well and the appellant admitted in his evidence that from 10.5.1997 to 10.12.1997 the 1st respondent was permitted to take water from the Well and it was also admitted by the appellant that he and his brother the 1st respondent were not in talking terms for the past 28 years and in these circumstances, it is highly unbelievable that the appellant would have permitted the 1st respondent to take water for the period of five months unless the 1st respondent has got right over the property and Ex.B7 was also proved through the evidence of DW2 who is an independent witness and having regard to the fact that the suit property originally belonged to the appellant and the 1st respondent and the suit Well is the only Well for irrigating the properties belonging to the appellant and the 1st respondent and all of them joint together applied for loan for digging the Well as evidenced by Exs.B3 and B4 and the appellant has also acknowledged the right of the 1st respondent in respect of the suit Well by executing Ex.B7, the appellant is not entitled to claim exclusive right and allowed the appeal and dismissed the suit. Hence, the Second Appeal. 5. Hence, the Second Appeal. 5. Mr.R.Subramanian, the learned counsel for the appellant submitted that the lower appellate Court erred in holding that the 1st respondent has proved his right over the Well through Exs.B6 and B7 and the appellant specifically denied the execution of Exs.B6 and B7 and therefore it is for the 1st respondent to prove the same and though the documents were sent to Expert, the Expert opined that the opinion cannot be given by the reason of smudging of thumb impression of Exs.B6 and B7 and without proving Exs.B6 and B7 by examining the attesting witnesses, the 1st respondent cannot rely upon Exs.B6 and B7 and that was rightly appreciated by the trial Court and having regard to the fact that the suit Well is mentioned in the name of the appellant in the revenue records as evidenced by Exs.A1 and A2 the trial Court rightly held that the appellant has proved the exclusive right and the lower appellate Court without properly appreciating Exs.A1 and A2 erroneously relied upon Exs.B6 and B7 and dismissed the suit. 6. I am unable to accept the contention of the learned counsel for the appellant. Admittedly, the suit property originally belonged to the appellant and the 1st respondent and they are brothers. It is admitted by both parties that there was a partition and according to the appellant, in the partition each of them were given one acre and the mother was given one acre and according to the 1st respondent he was given 1.50 acres on the northern side with half share in the Well and the appellant was given 1.30 acre on the southern side with half share in the Well. Though both parties have not proved their case of partition, in respect of the suit Well is concerned, in my opinion, it cannot be the exclusive right of one party having regard to the following admitted facts. Though both parties have not proved their case of partition, in respect of the suit Well is concerned, in my opinion, it cannot be the exclusive right of one party having regard to the following admitted facts. Admittedly, the brothers namely the appellant and the 1st respondent along with mother applied loan for digging a Well in the suit property in the year 1972 and that was evidenced by Exs.B3 and B4, therefore when the Well was dug in the suit property, the property was enjoyed in common, and naturally when the property was divided the Well right would also be divided between the parties especially when the source of irrigation for the land is only from the Well. It is not in dispute that the 1st respondent has no other source of irrigation except from the Well. Therefore the normal presumption would be that the parties would have divided the Well right while dividing the properties especially when the Well is also situate in the same survey number. It is also admitted by PW1 that from May 1997 to December 1997 he allowed the 1st respondent to take water from the Well. The case of the 1st respondent is that he purchased the Oil Engine in the year 1992 as evidenced by Ex.B1 and by using the Oil Engine both parties are taking water. It is also stated by the appellant that he and the 1st respondent were not in talking terms for the past 28 years and this was rightly appreciated by the lower appellate Court that when the appellant was not in talking terms with his brother for the past 28 years he could not have allowed his brother to take water from the Well when the brother has no right over the Well. Further, Ex.B7 was proved through DW2 who has no axe to grind against the appellant and he is an independent witness. Admittedly, the appellant filed O.S.No.229 of 1990 against the 1st respondent for injunction in respect of the Well and that suit was not prosecuted later and according to the 1st respondent at the instance of Panchayatars the appellant executed a letter of undertaking admitting the right of the 1st respondent in the Well and thereafter the suit was not prosecuted. Admittedly, the appellant filed O.S.No.229 of 1990 against the 1st respondent for injunction in respect of the Well and that suit was not prosecuted later and according to the 1st respondent at the instance of Panchayatars the appellant executed a letter of undertaking admitting the right of the 1st respondent in the Well and thereafter the suit was not prosecuted. Considering all these aspects, the lower appellate Court has rightly held that the appellant cannot claim the exclusive right over the Well and the 1st respondent also proved his right over the Well through Exs.B3, B4, B1, B6 and B7. I am in complete agreement with the findings of the lower appellate Court and as rightly held by the lower appellate Court having regard to the fact that the property was originally owned by the appellant and the 1st respondent and they were enjoying the Well in common and therefore in the partition between the brothers the Well would also have been divided between the parties as there is no other source of irrigation and therefore the partition as stated by the 1st respondent that in the oral partition each party was given half share in the Well is more probable and therefore the lower appellate Court has rightly dismised the suit and allowed the appeal. Hence, I do not find any reason to interfere with the Judgement and Decree of the lower appellate Court and no substantial question of law arises for consideration in the Second Appeal and the Second Appeal is dismissed. 7. In the result, the Judgement and Decree of the lower appellate Court are confirmed and the Second Appeal is dismissed. Consequently, the connected Miscellaneous Petition is closed.