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2012 DIGILAW 1621 (MAD)

Muthusamy Gounder v. Cinnappa Gounder

2012-03-29

K.RAVICHANDRA BAABU

body2012
Judgment :- 1. The appellants 1 to 4 are the defendants in a suit for declaration, permanent injunction and for mandatory injunction. The respondents herein as plaintiffs filed a suit in O.S.No.907 of 1982, on the file of the Additional District Munsif Court, Karur, seeking for the relief of declaration to declare that the plaintiffs are entitled to irrigate the properties in terms of suit irrigation kavar; for mandatory injunction to direct the defendants to remove the pipe-line laid between the points 'A' and 'B' in the suit property; and for permanent injunction restraining the defendants and their men from, in any manner, laying the pipe-line further between the points 'A', 'B' and 'C' and thereby diminishing, obstructing and preventing free flow of water to the plaintiffs' land. 2. The case of the plaintiffs is that the main irrigation kavar starts from popular Mudaliar Vaikkal through sluice No.5 and runs through the lands belonging to the defendants and plaintiffs at survey Nos.376, 377, 378, 423, 424, 405, 379, 406 and 420. According to the plaintiffs, the popular Mudaliar Vaikkal is in existence for more than 22 years at the time of filing the suit and the main irrigation kavar starting from sluice No.5 is also in existence from the inception of the said Mudaliar Vaikkal. The first defendant, who is the owner of Survey No.424, in order to grab and encroach an extent of 0.05 cents, over which, the main irrigation kavar is running, laid a pipe-line on 06.08.1982 in spite of plaintiffs' objections and protests and covered it with mud and thereby prevented the free flow of water to the plaintiffs' land. The main irrigation kavar is the common kavar and therefore, the defendants have no right to lay pipe-line in it, thereby preventing or diminishing the free flow of water to the plaintiffs' land at Survey Nos. 405, 406 and 420. Therefore, they filed the above said suit. 3. The defendants contested the said suit by stating that the suit kavar does not start from sluice No.5 and the main irrigation kavar has also not been laid by the Public Works Department by acquiring any of the land belonging to plaintiffs or defendants. 405, 406 and 420. Therefore, they filed the above said suit. 3. The defendants contested the said suit by stating that the suit kavar does not start from sluice No.5 and the main irrigation kavar has also not been laid by the Public Works Department by acquiring any of the land belonging to plaintiffs or defendants. On the other hand, only with an understanding between the land owners, namely, plaintiffs and defendants, the irrigation kavar was made in the year 1970 and also by laying a concrete cement pipe line between point 'A' and 'B'. Therefore, according to the defendants, the pipe-line between the points 'A' and 'B' had been laid as early as in the year 1970 and therefore, it is not correct to say that the first defendant had laid the pipeline on 06.08.1982 as alleged by the plaintiffs. It is also stated by the defendants that free flow of water is not affected or reduced land because of the laying of the pipe-line between point 'A' and 'B'. In the additional statement filed by the first defendant, it is stated that the pipe-line between point 'A' and 'B' had been laid in the year 1970 with the consent and knowledge of the plaintiffs and their predecessors in title and as such it is a permanent structure and it can not be removed. 4. The trial Court after framing four issues, has dismissed the suit by its judgement and decree dated 05.01.1987, by holding that the said pipe-line between points 'A' and 'B' were laid with the consent of the respective land owners and that the same was also laid as early as in the year 1970 and consequently, dismissed the suit in its entirety. 5. The plaintiffs filed an appeal before the Subordinate Court, Karur in A.S.No.89 of 1989 and the learned Subordinate Judge, after framing six issues through his judgement and decree dated 28.03.1995, reversed the findings of the trial Court and decreed the suit as prayed for, by holding that the suit main irrigation kavar is the common irrigation kavar to all the parties and consequently, when the water to the plaintiffs' land is diminished or reduced, they are entitled to file the suit and therefore, they get a fresh cause of action as and when the free flow of water is interfered with. 6. 6. Aggrieved against the said judgment and decree made by the lower Appellate Court, the present second appeal was filed before this Court and at the time of admission of the second appeal, the following substantial question of law was framed by this Court:- “When physical features of the suil branch channel noted by the Commissioner would prove that the suit closed pipe-line channel is in existence for more than a decade prior to suit, whether not the suit for mandatory injunction to remove the pipe-line is barred by limitation as per Article 133 of the Limitation Act?” 7. Though notice was served on the respondents, who are the plaintiffs before the trial Court, they have not chosen to appear either in person or through their counsel. On the other hand, their names have been printed in the cause-list. 8. The learned counsel appearing for the appellants argued that the main issue arises for consideration in the second appeal is as to whether the plaintiffs are entitled to seek for mandatory injunction for removal of the pipe-line between 'A' and 'B' points especially when such relief is barred by limitation. It is further argued by the learned counsel for the appellants that the Advocate Commissioner appointed by the Court below inspected the property and found a structure at point 'B' showing a date as 07.09.1970. Therefore, the learned counsel for the appellants contended that in view of the existence of such structure as found by the learned Advocate Commissioner, showing the date as 07.09.1970 at point 'B', it is proved by the defendants that the suit pipe-line between point 'A' and 'B' was laid as early as in the year 1970 and not on 06.08.1982 as alleged by plaintiffs and consequently, the suit for mandatory injunction filed in the year 1987 i.e., 17 years after the laying of the said pipe-lines is barred by limitation and consequently, the plaintiffs are not entitled any such relief. 9. The learned counsel further argued that insofar as the defendants/appellants are concerned, their main grievance is with regard to the relief of mandatory injunction granted for the removal of pipe-line between point 'A' and 'B' and they have got no objection for the plaintiffs to get their land irrigated through the said pipe-line between point 'A' and 'B' as easementary right. It is also stated by the learned counsel appearing for the appellants that they have got no objection for granting the relief of permanent injunction as granted by the lower appellate Court. 10. Heard the learned counsel for the appellant. 11. The only point for consideration in this second appeal and the question of law to be answered herein is as to whether the relief of mandatory injunction is barred by limitation. For the relief of mandatory injunction, the governing provision under limitation Act is Article 113, which reads as follows:- PART X Suits for which there is no Prescribed Period 12. As per the said Article, the suit for mandatory injunction has to be filed within three years from the date on which the right to sue accrued. Therefore, we have to see as to whether the plaintiffs have filed the suit within three years from the date on which their right to sue accrued. To answer this issue, some relevant facts have to be necessarily gone into. 13. It is the case of the plaintiffs that the first defendant had laid the pipe-line between point 'A' and 'B' on 06.08.1982 and consequently, they filed the suit on 09.08.1982. On the other hand, the first defendant has contended that the suit pipe-line between point 'A' and 'B' was laid as early as in the year 1970, as could be seen from the Commissioner's report, showing a structure at point 'B' with a date inscribed therein as 07.09.1970. In this case, neither the plaintiff nor the defendant adduced any convincing or cogent evidence to categorically establish as to whether the suit pipe-line was laid on 06.08.1982 as contended by the plaintiffs or on in the year 1970 as contended by the first defendant. Merely because a structure is available at point 'B' with date inscribed in it showing 07.09.1970, that itself cannot be a concrete proof and evidence to show that the suit pipe-line was laid in the year 1970, unless the very fact is stated in the said structure itself. Merely showing a date in a structure cannot be taken into account or accepted as the date of laying of the pipe-lines, unless the same is supported by any other material evidence. But at the same time, the defendants have also not proved that the same was laid only on 06.08.1982. Merely showing a date in a structure cannot be taken into account or accepted as the date of laying of the pipe-lines, unless the same is supported by any other material evidence. But at the same time, the defendants have also not proved that the same was laid only on 06.08.1982. However, in my considered view the date of laying of pipe-line may not be the starting point of limitation but only the act of prevention or diminishing of water would give rise to the cause of action for the plaintiffs and consequently, the right to sue accrued to the plaintiffs from the said act and as such they are entitled to file the present suit for mandatory injunction from the day of prevention of water supply. 14. In this case, it is not disputed that both the parties are irrigating their respective lands through the main irrigation kavar. Even assuming that such main irrigation kavar was made as branch channel from the Mudaliar channel with the understanding of the respective land owners, non of the parties are entitled to either reduce or cover the suit main irrigation kavar, thereby either reducing or diminishing the water supply to the other man's land. Consequently, as and when any act of such diminishing or reducing of water supply to their respective lands takes place, the right to sue accrues to other man, who is affected by such reducing and diminishing of water supply. 15. In this case, what is to be seen is as to whether the plaintiffs are affected by very laying of the pipe-line or affected by diminishing of water to their respective lands in pursuant to such laying of pipe-line. No doubt, the pipe-line is laid in the first defendant's land. However, he cannot prevent the water flowing to the plaintiffs' land by closing the pipe-line. When such being the position, he is not entitled to retain the pipe-line, when it affects the free flow of water to the plaintiffs. The Advocate Commissioner's report shows that the lands belonging to plaintiffs' at points FG, IJK were without irrigation from the main irrigation kavar and were seen dried. When such being the position, he is not entitled to retain the pipe-line, when it affects the free flow of water to the plaintiffs. The Advocate Commissioner's report shows that the lands belonging to plaintiffs' at points FG, IJK were without irrigation from the main irrigation kavar and were seen dried. Therefore, the fact remains as proved even from the report of the Advocate Commissioner that the plaintiffs' land at points FG, IJK are without water in view of the pipe line laid by the first defendant, whereby the free flow of water is diminished or reduced. 16. It is further to be seen that from Ex.A1, the main irrigation kavar is in survey No.424, covering an extend of 5 cents of land with a measurement of 300 links of length and the 17 links of width. The 17 links of width is equal to 7 to 8 feet of channel running from point A and B and the same was reduced by laying a pipe line with 1¼ width of pipeline. Consequently, there is no doubt that by laying the pipe-line between point 'A' and point 'B' the free flow water with the original width of 7 to 8 feet was reduced to 1¼ feet, and therefore, there is no doubt that the plaintiffs will not have free flow of the water to their tail end land. Consequently, they are entitled to seek for free flow of water to their respective land and for such purpose they are also entitled to seek the removal of the pipe-line between point 'A' and 'B'. What is to be seen is when such right accrued to them. According to the plaintiffs, the defendants has laid the pipe-line on 06.08.1982. Even assuming that it was not laid on 06.08.1982, the cause of action for filing the suit for the plaintiffs is the diminishing of the water to their respective land which is a continuous action and not a completed one. 17. The learned Advocate Commissioner had also found that the land above the 'A' and 'B' pipe-line was seems to be cultivated afresh with paddy. The plaintiffs have complained that their land has been left without water. Free flow of water to the respective lands of the parties if affected or interfered with, such constitute a continuous cause of action and is not a completed one. The plaintiffs have complained that their land has been left without water. Free flow of water to the respective lands of the parties if affected or interfered with, such constitute a continuous cause of action and is not a completed one. When the injury is said to be a continuous one, the limitation runs every moment of the time during which the injury continues. 18. In this connection, it is useful to refer a decision reported in 79 L.W. 705 in the matter of PalaniappaMoopan vs. Angammal,wherein at the relevant portion of the paragraph 4, it has been held as follows:- “If any of them should interfere with the mamool flow of water or at any subsequent period, that would give a fresh cause of action to the plaintiffs and a cause of action to the defendants also if they are inconvenienced and injured. In my view, it would be unreasonable to compel the plaintiffs to impliead the owners of the servient lands all along the course of the channel whether they had any cause of action against them or not and even though there was no obstruction to or denial of the plaintiffs' right by these persons.” 19. As the act of interference with the free flow water to the plaintiffs land being a continuous action and consequently, give rise fresh cause of action every time of such interference, the suit filed by the plaintiffs is undoubtedly not barred by limitation and therefore, the lower appellate Court has rightly decreed the suit as prayed for. Consequently, the question of law is answered in negative against the defendants and the second appeal is dismissed. No costs.