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2012 DIGILAW 1312 (MAD)

P. Nataraj Gounder (Died) v. N. Murugesan

2012-03-12

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This appeal is directed against the judgment and decree passed by the first appellate Court in A.S.No.10 of 2002 dated 5.11.2002 in reversing the judgment and decree of the trial Court made in O.S.No.669 of 2000 dated 5.11.2001 in decreeing the suit. The first appellant herein was the deceased plaintiff and the respondent was the defendant in the suit before the trial Court. The second appellant is the legal representative of the deceased first appellant. 2. The case of the plaintiff as stated in the plaint are as follows: The suit property along with other properties are the ancestral property of the plaintiff. On 15.6.1961, the plaintiff have partitioned his ancestral properties along with his co-sharers. The partition was effected through a registered document, in document No.1682/1 Registrar Office at Erode. In that partition, "A" schedule property fell to the share of the plaintiff and he is enjoying the property without any disturbance. Among the " A" schedule property the suit property fell into the item 5 of the "A Schedule property. In the suit property, the plaintiff has constructed his residential house, formed his cattle shed, hay stock and the remaining portions are garden land. The defendant is having his agricultural lands on the immediate west of the suit property. The defendants land is higher in level that of the plaintiff. The approximate height of the defendant's land is more than seven feet. The defendants have no right to drain the seepage water into the suit property and he has no right over the suit property. There was a election for the Milk Producers Co-operative Society, at the local area level, in which the plaintiff's son was taking an active role and elected as Vice President. The defendant was also elected as a President by the opposite group. So there is a long standing enmity between the plaintiff's son and the defendant. On 20.10.2002, at about 6.00 p.m., the defendant was trying to let out the seepage water by cutting the western side ridge of the suit property and by forming a new channel course with the help of rowdy elements. The unlawful act of the defendant was thwarted by the plaintiff with the help of neighbours and relation nearby. The plaintiff apprehends that if the defendant is succeeded in his attempt, the crops will be spoiled due to the over flow of the water. The unlawful act of the defendant was thwarted by the plaintiff with the help of neighbours and relation nearby. The plaintiff apprehends that if the defendant is succeeded in his attempt, the crops will be spoiled due to the over flow of the water. Hence, the suit for permanent injunction. 3. The case of the defendant as stated in the written statement are as follows: The plaintiff has purposely suppressed the fact that there is an acquired LBP boothie course running from west to east in the northern most portion of R.S.No.430 almost on the boundary line dividing the defendant's land in R.S.No.410 from R.S.No.430 and the said acquired boothie course leads up to the plaintiff's land in R.S.No.433/2. The water drained from the defendant's land and the boothie course following from west to east enter into the cultivable land of the plaintiff and the sad water had been regularly used by the plaintiff for his paddy crops. The owner of the land R.S.No.430 situated on the south of defendant's land had previously demolished the acquired boothie course running from west to east in the northern portion of his land with the malafide intention to cause loss and hardship to the defendant. The defendant therefore filed the suit in O.S.No.483/98 on the file of District Munsif Court, Erode and obtained necessary reliefs. The plaintiff's suit is highly malafide. There is no cause of action for the suit and the suit is liable to be dismissed. 4. The trial Court had framed necessary issues and entered trial. After appraising the evidence adduced before the trial Court, the trial Court had come to a conclusion of decreeing the suit in favour of the plaintiff as prayed for. 5. Aggrieved defendant had preferred the appeal before the first appellate Court in A.S.No.10 of 2002 against the said judgment and decree passed by the trial Court The first appellate court heard the arguments of both sides and had come to a conclusion of reversing the judgment and decree passed by the trial court and thereby the appeal was allowed and consequently, the suit was dismissed. 6. Aggrieved by such reversal judgment and decree passed by the First appellate Court, the plaintiff has come forward with this appeal before this Court. 7. On admission of the second appeal, this Court has framed the following substantial questions of law for consideration in the second appeal. 6. Aggrieved by such reversal judgment and decree passed by the First appellate Court, the plaintiff has come forward with this appeal before this Court. 7. On admission of the second appeal, this Court has framed the following substantial questions of law for consideration in the second appeal. "1) Whether the lower appellate Court committed an error in construing recitals of Ex.A1. 2) Whether the findings of the First Appellate Court is correct in holding that the suit is not maintainable in the absence of the Government as party defendant, especially when there is no relief claimed against the Government and no right claimed over the suit channel. 3. Whether the defendant can have a right to have water from his property flow into the land of the plaintiff and whether such easementary right can be claimed in law. 4. Whether the First Appellate Court is having power to grant relief contrary to the pleadings particularly the evidence of the defendant is not supported by pleadings?" 8. Heard, Mr.N.Manoharan, learned counsel for the appellants/plaintiffs and Mr. Sundaravathanan, learned counsel for the respondent/defendant. 9. Learned counsel for the appellants/plaintiff would submit in his argument that the first appellate court has come to a wrong conclusion that the plaintiff had filed a suit for declaration of the right over the channel and had come to the conclusion that the owner of LBP channel being the Government, the suit was not sustainable. He would further submit in his argument that the said suit channel was not LBP water course which would not end in point 'E'. He would further submit that the plaintiff has sought for stopping of draining of the excess water from the land of the defendant to the land of the plaintiff , through the point 'E' and the ownership of the channel will not come into play when such tortious act was sought to be arrested. He would further submit in his argument that no person have any right to allow water from his property to flow into the land of his neighbour and it cannot be claimed as a easementary right. He would further submit that the first appellate Court has misunderstood the factual aspects and had come to a conclusion that the right of easement was being enjoyed by the defendant for more than 45 years . He would further submit that the first appellate Court has misunderstood the factual aspects and had come to a conclusion that the right of easement was being enjoyed by the defendant for more than 45 years . He would further submit that the defendant had artificially brought the excess water be flown into the plaintiff's land and such discharge of water over the lands of the plaintiff cannot be done as of right and it cannot also be classified as a natural right. He would also submit that the defendant has put up a cement channel for his drainage and there was a point at 'RS' in the cement channel lying on the northern boundary of the defendants' property and there was an exit in point 'X' which is on the low lying area flowing into some other person's land and therefore, he cannot drain the excess water through the land of the plaintiff at 'E' point. He would further submit that when there is an alternative way to drain the excess water from his land through the points 'RS' and 'X', the defendant would not be prejudiced if he has been restrained by an order of permanent injunction. He would further submit that in the year 1966 when the partition deed was executed in Ex.A1, there was no existence of LBP channel since such scheme of Lower Bhavani Project was framed only in 1966 and therefore, the mentioning of LBP channel in Ex.A1 could not be correct. He would also submit that the defendant has not disproved the case of the plaintiff by proving that the channel exists in between the defendant's land and the third party land and ends at 'E' point was the LPB channel by examining the revenue officials. When the same was not proved, the decision reached by the first appellate court that the defendant is entitled to drain the excess and seepage water into the plaintiff's land as a natural easement, i.e., easement by prescription and also as a easement of necessity. He would further submit that the right of irrigation as granted under Ex.A1 is totally a different one and there was no LBP channel at that point of time but there was only a 'koppu vaikkal' for such irrigation. He would further submit that the right of irrigation as granted under Ex.A1 is totally a different one and there was no LBP channel at that point of time but there was only a 'koppu vaikkal' for such irrigation. He would further submit that the first appellate Court failed to give reasons but differs with the findings of the trial Court for coming to a different conclusion. He would further submit in his argument that the right to receive or drain the water through the course artificially created cannot be considered as a easementary right. He would further submit that no person can have the easementary right regarding the right to have water from his property to flow on to the land of his neighbour. He would cite a judgment of the High Court of Kerala reported in AIR 1978 Kerala 50 (Tharur Panchayat and others v. Kunchayi and another) and a judgment of the Honourable Apex Court reported in 2001 (3) MLJ 13 (SC) (Saraswati v. S.Ganapathy) in support of his argument . He would further submit in his argument that the comment made by the first appellate Court that the owner of LBP channel viz., the Government, ought to have been made as a party, cannot be sustained since it is the plaintiff to decide as against whom the suit has to be filed. He has also submitted that no relief has been asked for against the Government and therefore, there is no question of any non-joinder of parties for not impleading the Government. He would also cite the judgment of this Court reported in 2005 (4) LW 309 (P.Ashoka v. Nehru Edwin Raj & others) in support of his argument. He would therefore, request the Court that the judgment and decree passed by the first appellate Court in reversing the judgment of the trial Court is not in accordance with the principle of law as well as the evidence produced in this case and therefore, they have to be set aside and the second appeal be allowed and thus, the judgment and decree passed by the trial Court may be restored. 10. 10. Learned counsel for the respondent would submit in his argument that the LBP channel is running in between the land belonging to the defendant and the third parties land lying on the southern side and it has been proved that it was a LBP channel by virtue of the document produced in Ex.B1, FM-book. He would further submit that the litigation had by the defendant with his neighbour on the southern side was ended in favour of the defendant and the suit filed by the neighbour on the southern side was not renewed which would go to show that the channel in between the property belonging to the defendant and the third party neighbour on the southern side is only a LBP channel. He would further submit in his argument that the reference as to LBP channel was made in Ex.A1, the partition deed produced by the plaintiff himself and therefore, he cannot deny that such a LBP channel was in existence even in the year 1966. He would further submit in his argument that the lie of the defendant's property was lower on its southern side and it comes up higher on its north as well as on the west and it can be evidenced from the report of the commissioner produced in Exs.C1 and C2. He would also submit that the property of the defendant was much higher than that of the plaintiff's land, located adjacently on its eastern side and it has been clearly stated in the plaint itself. He would also submit that the plaintiff never drained water through 'E' point into the plaintiff's land and he had an exit at 'X' point through which the drainage water from all the three sides would escape to some other third persons' property and the remaining excess water run towards south of the defendant's property since the land of the defendant is sloping from north to south and west to east and such water runs to the channel laid in between the defendant's property as well as the southern neighbour of the defendant. He would also submit that the water will reach the channel which is LBP channel and thereafter, it is getting drained through the said LBP channel which is being used by all the owners of the land lying on the western side of the defendant's land and it is being used by the defendant as well as the southern neighbour of the defendant as well as the plaintiff for irrigating their lands as Lower Bhavani Project, Ayakat. He would also submit that the said channel is not belonging to the defendant and there would be no cause of action for draining of water flowing from LBP channel into the plaintiff's land. He would also submit that such water flow in the LBP channel was not only from the defendant's land but also from the lands located on the western side of the defendant's land If the plaintiff wants to stop the drainage of water flowing through LBP channel, then he has to implead all the parties who are having lands on the western side who drain the excess water into the LBP channel which consequently flow at the plaintiff's land. He would further submit that the said flow of water is only natural and it is not artificial. He would further submit in his argument that the geographical lie of the defendant's land and the plaintiff's land are such that if it rains heavily, the water flowing from the defendant's land would reach the plaintiff's land through the LBP channel after being collected. He would also submit that all the rain water coming from the lands lying on the west of the defendant's land would also drain only in the plaintiff's land which is a natural one. He would further submit that the case being such, it cannot be said that the defendant was intentionally draining the water from his land over the plaintiff's land cannot be sustained. He would submit that the trial Court did not go into the evidence deeply to base its finding on a correct perception of evidence. He would also submit that the first appellate Court had correctly found that the trial Court was in error and had interfered with the judgment and decree passed by the trial court. He would therefore, request the Court to dismiss the appeal and thereby, to confirm the judgment and decree passed by the first appellate Court. 11. He would also submit that the first appellate Court had correctly found that the trial Court was in error and had interfered with the judgment and decree passed by the trial court. He would therefore, request the Court to dismiss the appeal and thereby, to confirm the judgment and decree passed by the first appellate Court. 11. I have given anxious thoughts to the arguments advanced on either side. 12. The plaintiff's case before the trial court was that the defendant or his men be restrained by an order of permanent injunction from letting the excess water from the land belonging to the defendant in to the plaintiff's land lying adjacently. The admitted facts are that the plaintiff's land is situated in S.No.433/2 and the defendant's land is located in S.No.410/2 and the defendant's land is located more than 5 feet high from the plaintiff's land. The Commissioner was appointed and he visited the suit property and he had also submitted a report in Exs.C1 and sketch in Ex.C2. In Ex.C2 we could see that there is a Koppu Vaikkal lying on the southern boundary line of the defendant's land which has been referred to as 'ABCDE'. It has been categorically mentioned that 'BC' portion is one foot lower than the 'AB' portion and 'CD' portion is one foot lower than the 'BC' portion and 'DE' portion is one foot lower than the 'CD' portion. Therefore, the 'ABCDE' channel was higher on the western side at point 'A' and it is slopping down towards 'DE' side and the level at 'E' point was 3 feet lower than 'A' point. In the plaint itself, the plaintiff has stated that the location of defendant's land was 7 feet higher than that of the plaintiff's land lying on the eastern side of 'Koppu Vaikkal' . The commissioner has also explained in his report, Ex.C1 that the land belonging to the defendant was higher on the northern side and the western side and it is slowly slopping on the side of the south and east. The commissioner had also curiously referred to 'Q' point which is lower than the area located on its north, west and south. Therefore, it could be considered as a low lying area of the land through which water could escape at the point 'X'. The commissioner had also curiously referred to 'Q' point which is lower than the area located on its north, west and south. Therefore, it could be considered as a low lying area of the land through which water could escape at the point 'X'. The said 'X' point opens into the third parties property to which the plaintiff was not concerned. There are two points on the northern side of the defendant's land at 'R' and 'S' and immediately on its northern side there is a cement slapped drainage. In the said drainage, the defendant had left two slits at points 'R' and 'S'. In the event of heavy water flow at the defendant's land, whether the excess water could be drained through 'R' and 'S' is a question, since its level is higher than the land lying on its south. Yes, the commissioner has categorically stated that the northern portion of the defendant's land is higher than the southern portion. Therefore, the flow of water from the land of the defendant cannot go towards the north in order to get drained through the points 'R' and 'S'. Therefore, such drainage through the northern part cannot be possible. We have seen already that the excess water if any would be running towards south from north and western side of the land towards east. Therefore, all the water in excess would go towards south so as to reach the 'Koppu Vaikkal'. Whether the said 'Koppu Vaikkal' could be considered as a channel belonging to the defendant so as to constitute the cause of action of draining the excess water through 'Koppu Vaikkal'. The said 'Koppu Vaikkal' was stated to be in existence so many years through which water for irrigation is being supplied to all the lands lying on the west of the defendant as well as the third parties land lying on the southern side of the defendant and to the plaintiff on the eastern side. Therefore, the use of the said 'Koppu Vaikkal' cannot be denied by any party. The said 'Koppu Vaikkal' is stated to be LBP channel through which Bhavani water is flowing for irrigation. 13. On a careful perusal of Ex.A1, we could see that it was a partition deed entered into between the plaintiff and his brother, brother's wife in respect of their common property. The said 'Koppu Vaikkal' is stated to be LBP channel through which Bhavani water is flowing for irrigation. 13. On a careful perusal of Ex.A1, we could see that it was a partition deed entered into between the plaintiff and his brother, brother's wife in respect of their common property. In the said description of properties, ABC schedule properties were mentioned as being divided among them. In the said document, it has been stated that there was a channel left for irrigating the lands and the right in taking water through LBP channel and other channels was kept in common use and it should not be interfered by any party. Therefore, we could see in Ex.A1 in the year 1961 itself, it has been referred to as LBP channel and it being an admission in the document entered into by all the parties, it cannot be said that the said channel was not LBP channel so as to implead the Government as a necessary party. 14. Further more, I could see from the FMB of the land in S.No.410 has been produced in Ex.B1. In the said document, the channel is shown running in the property belonging to the southern neighbour of the defendant in which there is a sub-division of properties in S.No.430/1 and 430/2 which was on the northern side of the channel belonging to the said third party. There was a litigation in between the defendant and the said neighbour regarding the said properties. The land in S.No.430/3 was shown as the said Vaikkal running through the defendant's land and the 3rd parties land to end at plaintiff's land at 'E' point. Therefore, the said channel whether it is a 'Koppu Vaikkal' or LBP channel, it is a permanent water course for taking water for irrigation to Ayakatdars as well as for passing water, when it was excess. It cannot be considered as created by the defendant for draining the water artificially. 15. No doubt, the channel was admittedly the LBP channel for taking water from Lower Bhavani Project towards irrigation of all the lands. It has not been denied by the plaintiff that he is not receiving water through the said channel for raising crops. It cannot be considered as created by the defendant for draining the water artificially. 15. No doubt, the channel was admittedly the LBP channel for taking water from Lower Bhavani Project towards irrigation of all the lands. It has not been denied by the plaintiff that he is not receiving water through the said channel for raising crops. When the existence of the channel has been admitted lying on the south side of the defendant's land in a low level and it ends with point 'E' to pass water to the plaintiff's land, it cannot be said that the defendant had drained water directly from his land to the plaintiff's land. No doubt, it is true that no person can have the right to flow water from his property to flow on the land of the neighbour. The judgment of the Honourable Apex Court reported in 2001 (3) MLJ 13 ( Saraswati v. Ganapathy) would run as follows: "19.... In our view, this argument merely needs to be stated to be rejected. No person can have a right to have water from his property flow onto the land of his neighbor. No such easementary right can be claimed in law. All that the appellants can clam is to see that water from the roof of his house is allowed to flow, on to his own land." 16. The judgment of the Kerala High Court reported in AIR 1978 Kerala 50 (Tharur Panchayat and others v. Kunchayi and another) would go to show that there was no right to discharge water through artificially created channel to another man's property. The relevant passage would run thus : "14. The right to discharge water over the land of others or to receive the discharge of water form the lands of others by means of water courses artificially created, is not a natural right of property, but may be the subject-matter of contract between the parties or be established like any other easement either by express grant or by prescription which presumes a grant. No doubt, it is distinct from water flowing, in a natural channel, which arises as incidental to the ownership of land, and as such prima facie entitles each successive riparian owner to the unimpeded flow of water in its natural course, to its reasonable enjoyment as it passes through his land as a natural incident to his ownership of it. No doubt, it is distinct from water flowing, in a natural channel, which arises as incidental to the ownership of land, and as such prima facie entitles each successive riparian owner to the unimpeded flow of water in its natural course, to its reasonable enjoyment as it passes through his land as a natural incident to his ownership of it. The right to water flowing to a man's land trough an artificial water course must rest on some grant or arrangement, either proved or presumed from or with the owners of the lands from which the water is artificially brought or on some other legal origin. Wood v. Waud's case relied on by the learned counsel for the appellants is itself an authority for the proposition." 17. The contention of the learned counsel for the appellant was that even though the period of passing water for a long period of more than 20 years, it would not give any right to the defendant being the neighbour. In the aforesaid judgment also, it has been categorically mentioned that except on a natural flow, the right to drain the water from one man's land to another man's through artificial method was not permitted. The law of easement regarding the water is concerned, it is very clear that no person can discharge water on the servient tenement through spouts or drain from eaves of a house. Insisting the said point, learned counsel for the appellant would submit that the defendant was not entitled to let water into the plaintiff's land through the artificial LBP channel. It has been exempted in AIR 1931 Madras 56 (Zamindar of Nandigam v. Raja of Vijayanagaram) that the right to fill once own tank in rainy season so as to keep submerged under water so overflowing the land of another is allowed as an easement. Therefore, it is clear that the excess water collected during the rainy season which are flowing in excess can be considered as a right of easement to be drained in neighbours land. It has been categorically admitted by the plaintiff that the LBP channel was once a 'Koppu Vaikkal' and it was having a natural flow of water from the defendant's land during the rainy season or when the water was found excess. It has been categorically admitted by the plaintiff that the LBP channel was once a 'Koppu Vaikkal' and it was having a natural flow of water from the defendant's land during the rainy season or when the water was found excess. The said 'Koppu Vaikkal' had been subsequent modified as LBP channel or even otherwise the said channel was not put up artificially by the defendant to drain the water on the plaintiff's land. Therefore, the defendant had no control over the drainage of excess water from his land to the LBP channel. After the said draining from the defendant's land to the LBP channel, the defendant has no control to pass it to the plaintiff's land or to any other's land. Even in that contingency, the plaintiff cannot find fault with the defendant to drain water from his land to the plaintiff's land . At no stretch of imagination, the natural flow of water from the defendant's land cannot be stopped or turned from south to north so as to get them drained through points 'R', 'S' and 'X' instead of draining them through LBP channel on its south since the lie of the said land is sloping from north and west towards south. In the said circumstances, the case has been filed by the plaintiff only recently in the year 2000. The LBP channel was in existence from 1961 onwards and irrigation of the lands of the defendants and the lands of the neighbour on the south and west, and the plaintiff on the east, were enjoying the benefit of LBP water and all these days till the suit has been filed, the plaintiff was not taking steps to injunct the defendant from draining the water. After a long gap of 40 years, he has filed the suit for a bare injunction. Learned counsel for the defendant would submit to the Court that there was an election enmity in between the family of both parties and therefore, the plaintiff has filed the suit to harass him. The documents produced in Exs.B5 to B7 would go to show that there was an election dispute in between the parties and the filing of the suit would have been caused due to the election enmity. In the said circumstances, I cannot find any reason to hold the questions of law formulated to be decided in favour of the appellant/plaintiff. The documents produced in Exs.B5 to B7 would go to show that there was an election dispute in between the parties and the filing of the suit would have been caused due to the election enmity. In the said circumstances, I cannot find any reason to hold the questions of law formulated to be decided in favour of the appellant/plaintiff. The first appellate Court had detailedly discussed in respect of the points in issue and had found out that the trial Court views are not in accordance with the evidence and therefore, it has decided to interfere with the judgment and decree passed by the trial Court. The first appellate Court has not come to any specific conclusion that the suit is bad for non-joinder of necessary parties but it had incidentally found that the LBP channel was belonging to the Government and there was no cause of action for the plaintiff against the defendant when LBP channel ends in point 'E' at the plaintiff's property, which was misconstrued as that the Government was a necessary party to the suit which is not correct. However, the plaintiff is at liberty to implead the parties of his choice which has been dealt with in a judgment of this Court reported in 2005(4) LW 309 (P.Ashoka v. Nehru Edwin Raj and others) wherein it is held as follows: "17. The plaintiff is the domius litus. He cannot be compelled to fight out the litigation whom he does not choose to bring the lis. Submitting that the plaintiff cannot be compelled to be impleaded as party, who has no direct interest in the suit claim." 18. In view of the fact that the first appellate Court did not find that the plaintiff has not impleaded the Government as necessary party and the suit was not found as bad for non-joinder of necessary parties, nothing is required to discuss on that point as desired by the appellant for the grounds made in the appeal memo. Therefore, I am of the considered view that the judgment and decree passed by the first appellate Court was quite in order to correct the judgment and decree passed by the trial Court which erred in facts. Therefore, there is no reason to interfere with the judgment and decree of the first appellate Court and accordingly, the second appeal is liable to be dismissed. 19. Therefore, there is no reason to interfere with the judgment and decree of the first appellate Court and accordingly, the second appeal is liable to be dismissed. 19. In view of the aforesaid discussions, the judgment and decree passed by the first appellate Court are confirmed and the second appeal is dismissed. No costs.