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2013 DIGILAW 2186 (MAD)

Palanisamy v. V. C. Periyasamy

2013-06-25

G.RAJASURIA

body2013
Judgment :- 1. These Second appeals are focussed animadverting upon the judgments and decrees dated 28.11.2011 passed in A.S.Nos.65 and 67 of 2010 by the learned Principal Subordinate Judge, Erode confirming the judgments and decrees passed in O.S.Nos.54 and 41 of 1996 dated 30.03.2009 by the learned District Munsif cum Judicial Magistrate, Kodumudi. 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 these two Second Appeals, would run thus: (a) O.S.No.41 of 1996 was filed by the following persons namely: (1) V.M.Duraisamy (2) Maruthiappa gounder (died) (3) M.Chenniappan (4) M.Chinnappa gounder (5) Sivakami (6) V.K.Palanisamy (7) V.K.Chinnasamy (died), Of whom except the fifth plaintiff, others are the appellants herein in S.A.No.670 of 2013; whereas, the original fifth plaintiff/Sivakami is arrayed as R11. V.M.Duraisamy (P1), Maruthiappa Gounder(P2) and V.K.Chinnasamy(P7) died pending litigation and their legal representatives are on record. The plaintiffs, filed the suit O.S.No.41 of 1996 seeking the following reliefs specifying the following schedule of property: "(a) To grant a permanent injunction restraining the defendants their men and officials from shifting suit service connection and the electric motor from the suit well or interfering in any other manner with the plaintiffs right of pumping water from therein alone with other co-owners; and (b) For costs. Description of property Erode Registration district, Kodumudi sub-registration district, Erode taluk, Vengambur village. In this the subject matter of the suit is the vani well situate in S.F.No.56A (R.S.No.378/20) with a 5 H.P. Texemo electric motor pumpset et., Installed therein, Service connection number for the same is 246." (extracted as such) (b) Pithily and precisely the case of the plaintiffs is that the plaintiffs and D1 and D2, totally nine in number, happened to be the joint owners of the well situated in S.No.378/20. With the help of picotta they were drawing water from the common well and irrigating their respective fields. V.C.Muthusamy/D1 got electricity connection in his name and installed the motor for pumping water from the common well and that installation of motor was for the benefit of the joint owners. However, holus bolus, V.C.Muthusamy was attempting to shift the electricity motor from that common well to some other well situated in S.No.378/18; whereupon alone this suit was necessitated to be filed. However, holus bolus, V.C.Muthusamy was attempting to shift the electricity motor from that common well to some other well situated in S.No.378/18; whereupon alone this suit was necessitated to be filed. (c) Per contra, D1 filed the written statement setting out various averments, the gist and kernel of them would run thus: The electricity connection stood in the name of Muthusamy only and it was not for the benefit of other co-sharers of the well; while so, the said Muthusamy thought fit to shift the said electricity supply from that borewell to the other borewell situated in S.No.378/18 over which the plaintiffs could have no grievance. However, frivolously the suit has been filed. At no point of time, D1 treated the said service connection as the one for the benefit of all other joint owners. Accordingly he prayed for the dismissal of the suit. The second defendant adopted the written statement of D1. (d) D5/Electricity Board filed the written statement to the effect that service connection No.246, V.P.Palayam Distribution to well at S.F.No.56-A (Old number) Venkambur village, was effected on 10.04.1974 in the name of D1, .C.Muthusamy, for running five H.P. Motor. D1 did not give any application for shifting that electricity service connection to any other place. In fact, the said service connection was given because the well is situated 60 mts away from the Kalingarayan main channel. The plaintiffs in O.S.No.41/96 had no right over that service connection. Accordingly, he prayed for the dismissal of the suit. (e) The trial Court framed the relevant issues. (f) O.S.No.54 of 1996 was filed by Chinnappa gounder, his two sons namely, V.C.Muthusamy(D1) and V.C.Periyasamy(D2) in O.S.No.41 of 1996, and Palaniammal – the widow of Chinnappa Gounder, as against various defendants therein including the plaintiffs in O.S.No.41 of 1996. (g) The gist and kernel of the averments in the plaint in O.S.No.54 of 1996 would run thus: The well situated in S.No.378/20 happened to be the joint well of as many as nine co-sharers. However, electricity supply obtained by V.C.Muthusamy for pumping water from the joint well was not for the benefit of all other co-sharers and it was only for the benefit of Muthusamy. However, electricity supply obtained by V.C.Muthusamy for pumping water from the joint well was not for the benefit of all other co-sharers and it was only for the benefit of Muthusamy. Inasmuch as he happened to be the absolute owner of the said motor pump set, he had the right to shift it to one other well situated in S.No.378/18 and correspondingly, to get shifted the electricity supply from the former place to the latter one. Accordingly he got effected such shifting also and the plaintiffs in O.S.No.41 of 1996 cannot try to interfere with his right to use the said motor in the well in S.No.378/18. (h) D3 filed the written statement setting out various averments, the gist and kernel of them would run thus: The well situated in S.No.378/18 also is the joint well and the plaintiffs cannot claim exclusive right over the electricity service connection. Accordingly, he prayed for the dismissal of the suit. (i) The electricity department filed the written statement stating that they are unnecessary party to the suit and they did not interfere with anyone's right. (j) The trial Court framed the relevant issues. (k) Up went the joint trial of both the suits during which the plaintiffs in O.S.No.41 of 1996 were treated as plaintiffs and accordingly during joint trial, witnesses were examined on their side as P.Ws.1 and 2 and Exs.A1 to 15 were marked. The defendants in O.S.No.41 of 1996 were treated as defendants during joint trial and on their side D.Ws.1 to 4 were examined and Exs.B1 to B15 were marked. Exs.C1 to C4 were marked as court documents. Ultimately the trial Court decreed the suit O.S.No.54 of 1996, but dismissed O.S.No.41 of 1996. 4. Being aggrieved by and dissatisfied with the common judgment and the decrees of the trial Court, the plaintiffs in O.S.No.41 of 1996 preferred the two appeals A.S.Nos.67 and 65 of 2010, for nothing but to be dismissed confirming the judgment and decrees of the trial Court. 5. 4. Being aggrieved by and dissatisfied with the common judgment and the decrees of the trial Court, the plaintiffs in O.S.No.41 of 1996 preferred the two appeals A.S.Nos.67 and 65 of 2010, for nothing but to be dismissed confirming the judgment and decrees of the trial Court. 5. Challenging and impugning the common judgment and the decrees of both the fora below, these two second appeals have been focussed on various grounds and also suggesting the following substantial questions of law: "(a) Whether the courts below erred in law and misdirected themselves in rejecting the appellants' right over the electricity service connection merely on the ground that it was obtained only in the name of the 2nd plaintiff V.C.Muthusamy notwithstanding the fact that the service connection can be obtained only in the name of one applicant as such it was given in name of V.C.Muthusamy even during the life time of his father? (b) Whether the courts below erred in law in negativing the claim of the appellants even though the report of the Advocate Commissioner, the evidence of D.W.4 and the documentary evidences which would substantiate their right to use the EB service connection installed in the Well in R.S.No.378/20? (c) Whether the judgment of the First Appellate Court is in compliance with the mandate of Order 41 Rule 31 CPC, and more particularly in view of the decision reported in 2011 (4) SCC 240 and 2012 (1) MLJ 701? (extracted as such) 6. The learned counsel for the appellants in both the second appeals would pyramid his argument, which could succinctly and precisely be set out thus: The appellants herein as well as the contesting defendants happened to be joint owners of the wells situated in S.No.378/20 and in S.No.378/18. According to him, the problem now is only in respect of the well situated in S.No.378/20. Out of understanding, the service connection which stood in the name of V.C.Muthusamy was enjoyed by Muthusamy as well as by other joint owners of the well and they were irrigating respectively their lands peacefully and amicably without any disturbance. However, during the year 1990, Muthusamy and his brother Periyasamy started giving trouble by trying to shift the electricity connection from the well in S.No.378/20 to one other well situated in S.No.378/18. 7. However, during the year 1990, Muthusamy and his brother Periyasamy started giving trouble by trying to shift the electricity connection from the well in S.No.378/20 to one other well situated in S.No.378/18. 7. The learned counsel for the appellants herein would submit that as of now, already the said respondents shifted the electricity connection which stood in the name of Muthusamy from the well situated in S.No.378/20 to the well in S.No.378/18 and it has become a fait accompli. At least, the appellants herein in O.S.No.41 of 1996 might be given liberty to apply to the Electricity Department afresh for getting service connection in their name or in any one of the names of the appellants, so that they could irrigate their land with the help of electric motor. He would also hasten to add that normally electricity board will insist upon the consent of other co-owners of the well. So far this case is concerned, since bad blood started running in the relationship of the appellants and the respondents, the latter may not voluntarily or volitionally give consent and the defendants might be directed to consider the application of the plaintiffs. 8. Whereas, the learned counsel for the defendants/Muthusamy and the legal representatives of Muthusamy would make his submissions, the warp and woof of the same would run thus: At no point of time, the said electricity supply was utilised by all the co sharers. It was exclusively in favour of Muthusamy who enjoyed it for irrigating his lands and so far as Periyasamy and the legal representatives of Muthusamy are concerned, they could have no objection for the plaintiffs in O.S.No.41 of 1996 in getting separate electricity connection, if at all the Rule permits them to have such facility in respect of the well situated in S.No.378/20. He would also hasten to add that there is an embargo as per G.O.No.2259 dated 03.11.1967 for getting the electricity connection in respect of the wells situated near to Kalingarayan main channel. 9. Heard the learned counsel for the Electricity Board, who would submit that the electricity Board will adhere to the Rules and Regulations strictly while scrutinizing the application if any filed by the appellants for service connection. 10. 9. Heard the learned counsel for the Electricity Board, who would submit that the electricity Board will adhere to the Rules and Regulations strictly while scrutinizing the application if any filed by the appellants for service connection. 10. At this juncture, I would like to call up the decision of the Hon'ble Apex Court reported in 2012(8) SCC 148 [Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus: "59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N.Goyal (2008) 8 SCC 92 , this Court explained the terms "substantial question of law" and observed as under: (SCC p.103, para 13) "13......The word "substantial" prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ......any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law......There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (emphasis added) 11. A mere running of the eye over the above precedent would connote and denote, exemplify and demonstrate that unless there is any substantial question of law is involved, the question of upsetting the finding of the court below would not arise. 12. A bare perusal of the records as well as the common judgments and the decrees of both the Courts below, would display and demonstrate that virtually the parties were fighting at arms length on various issues. The short point involved here is as to whether the electricity supply which stood in the name of Muthusamy could be treated as the one enuring to the benefit of all the co-sharers of the well in S.No.378/20. 13. The short point involved here is as to whether the electricity supply which stood in the name of Muthusamy could be treated as the one enuring to the benefit of all the co-sharers of the well in S.No.378/20. 13. Precisely the decision of both the Courts below is to the effect that there is no clinching evidence available on the side of the appellants herein, who are the plaintiffs in O.S.No.41 of 1996 that the electricity supply happened to be the common one for the benefit of the joint owners of the well. Hence, this is a pure finding of fact over which this Court in Second Appeal cannot interfere unless there is any perversity or illegality and for that matter there is none. 14. The learned counsel for the appellants herein would state that as per the Electricity Rules and Regulations, only in respect of one joint owner or one co-owner, electricity connection would be given and not in the joint names of all. 15. I would like to point out that since the plaintiffs and the contesting defendants are at logger heads, it was highly impossible for the appellants to get express consent from them in the application itself or in any format to produce it to the Electricity Board. Here this court by way of disambiguating the ambiguity if any could mandate binding the respondents co-sharers also that the plaintiffs could apply and get service connection if there is no embargo otherwise for obtaining such electricity connection either in the joint names of the appellants or in any one of the names of the appellants. Similarly the contesting defendants also could apply for getting separate service connection, if they are otherwise entitled for such electricity connection. Accordingly, both the appeals are disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.