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2013 DIGILAW 1921 (MAD)

T. C. Dharmalingam v. Chandramoorthy

2013-06-05

G.RAJASURIA

body2013
JUDGMENT 1. This Second appeal is focussed animadverting upon the judgment and decree dated 26.07.2012 passed in A.S.No.94 of 2006 by the learned I Additional Subordinate Judge, Erode, modifying the judgment and decree dated 21.12.2005 in O.S.No.1426 of 2004 passed by the 2nd Additional District Munsif, Erode. 2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus: (a) The plaintiff/Chinnaswamy filed the suit seeking the following reliefs, citing the following schedule of property: "(1) To grant permanent injunction against the defendants restraining them their men, agents etc., from in any manner interfering with the peaceful possession and enjoyment of the A B C D suit channel; and (2) For costs." SCHEDULE OF PROPERTY “TAMIL” (extracted as such) 4. The pith and marrow of the averments in the plaint would run thus: The suit channel having four feet width, branching from the P.W.D. Channel runs through R.S.No.135/4,5 136/2 and reached the lands in R.S.No.135/1 and 2 belonging to the plaintiff. The suit channel runs through the land of one Venugopal. The defendants' land is situated to the north of the suit channel. The said channel is found referred to in the partition deed dated 10.05.1962, which emerged among the plaintiff's ancestors. However, the defendants on 22.09.2004 attempted to close the said channel, whereupon the suit has been filed. 5. Per contra, the first defendant filed the written statement which was adopted by D2 his son, and the pith and marrow of it would run thus: The averments in the plaint were false. There is no dispute that the suit channel is running through venugopal's lands. The defendants did not object to the use of the said channel. However, the width of the suit channel is only 2-1/2 feet. The plaintiff intended to encroach upon the defendants' land in R.S.No.134. D1 filed one other suit O.S.No.1423 of 2004 in the Principal District Munsif Court in respect of his right to take water from the Koppu Vaikkal. Only as a counter blast, the plaintiff filed this present suit. Accordingly, he would pray for the dismissal of the suit. 6. The trial Court framed the relevant issues. 7. D1 filed one other suit O.S.No.1423 of 2004 in the Principal District Munsif Court in respect of his right to take water from the Koppu Vaikkal. Only as a counter blast, the plaintiff filed this present suit. Accordingly, he would pray for the dismissal of the suit. 6. The trial Court framed the relevant issues. 7. Up went the trial, during which the plaintiff/Chinnusamy examined himself as P.W.1 along with P.W.2/Venugopal and marked Exs.A1 to A3; and the first defendant/Dharmalingam examined himself as D.W.1 and Ex.B1 to B11 was marked. Exs.C1 to C4 were marked as Court documents. 8. Ultimately the trial Court dismissed the suit holding that the suit channel is having a width of 2-1/2 feet and not 4 feet. Being aggrieved by and dissatisfied with the said finding, the plaintiff preferred appeal, whereupon, the appellate Court after appointing a fresh Advocate Commissioner and getting his report and sketch Exs.C1 and C2, held that on either side of the 2-1/2 feet width of the channel, 3/4 feet width of bunds also existed on either side of the channel and accordingly, he held that the total width of the channel was 4 feet even though the water was running only in a width of 2-1/2 feet, so to say in the middle of the said channel. 9. Challenging and impugning the granting of larger relief by the appellate Court, this Second Appeal has been focussed on various grounds and also suggesting the following substantial questions of law: "(1) Is the lower appellate court justified in granting the relief of declaration as to the width of the suit channel which is not prayed for in the suit ? (2) When the commissioner's report and sketch Ex.C3 and C4 are disputed by the appellants and their prayer to remeasure the suit property with the help of District Surveyor is negatived, is the lower appellate court justified in taking into account Ex.C3 and Ex.C4 on the basis for granting the relief of injunction? (extracted as such) 10. Heard both sides. 11. The learned counsel for the appellants/defendants would pyramid his argument, which could succinctly and precisely be set out thus: Even in the Commissioner's report as well as in the judgments of the Courts below, it is clearly stated that the channel is running only in venugopal's land and it is not existing in the defendants' property. Heard both sides. 11. The learned counsel for the appellants/defendants would pyramid his argument, which could succinctly and precisely be set out thus: Even in the Commissioner's report as well as in the judgments of the Courts below, it is clearly stated that the channel is running only in venugopal's land and it is not existing in the defendants' property. However, the plaintiff might taking undue advantage of the appellate Court's judgment that width of the channel is 4 feet and not 2-1/2 feet, may encroach upon the defendants' property which is 4 feet above the suit channel. 12. The learned counsel for the plaintiff would refute such a submission by pointing out that the trial Court and the appellate court in their respective judgments in various places highlighted that the suit channel was not running across the defendants' land and no part of the channel also was situated in the defendants' property. The learned counsel for the plaintiff also in all fairness would submit that the defendants' property is situated to the north of the channel at a height of 4 feet and in such a case, there is no chance of the plaintiff encroaching into the defendants property and thereby enlarging the width of the channel. 13. I would like to extract hereunder the various portions of the appellate court's judgment for the purpose of disambiguating the ambiguity, if any. "15. In pursuance of the said order the advocate commissioner visited the suit property, with Taluk Surveyor and noted down with the physical features, measured the lands of the plaintiff, defendants, suit property and other lands and filed their report and plan Ex.C3 and 4. In Ex.C3, the commissioner has clearly stated as follows: "TAMIL” 16. Further this court is inclined to accept Ex.C3 and C4 for the following reasons also:- 1. There is no dispute that the suit channel is existing only in the land of the P.W.3 Venugopal. The second defendant in his chief evidence as well as during cross examination, as D.W.2 clearly admitted the same. "TAMIL” 2. P.W.2 Venugopal has also stated that the suit channel is situated only in his patta land and he further stated that the width of the water course is 2-1/2 feet and breadth of the bund on each side is 3/4 feet. 3. "TAMIL” 2. P.W.2 Venugopal has also stated that the suit channel is situated only in his patta land and he further stated that the width of the water course is 2-1/2 feet and breadth of the bund on each side is 3/4 feet. 3. It is clear case of plaintiff P.W.1 that the suit channel is only in the land of P.W.2 and it never situated in the land of defendants. ......... ........ ......... 4. ......... 5. “Further it is admitted that the suit channel is lying low level than that of the defendants land. It is not the case of the defendant that the plaintiff and Venugopal have encroached upon their lands, by extending the breadth of the suit channel......" 14. A mere running of the eye over those excerpts found in the first appellate Court's judgment would unambiguously and unequivocally indicate and exemplify that even as per the findings of the appellate Court, the bund of the channel is not held to be situated in any part of the defendants' property, but the finding of the appellate Court is that the defendants' property is situated 4 feet above the suit channel. In such a case, I could see no perversity or illegality in the judgment of the lower Court and absolutely there is no reason for the defendants to apprehend that under the pretext of the appellate court's judgment, the plaintiff might encroach upon their land. On balance, with this observation, I would dismiss the second appeal as no substantial question of law is involved in the matter. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.