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2014 DIGILAW 899 (MAD)

M. Sadagopan v. Shanmuga Goundar

2014-04-11

R.KARUPPIAH

body2014
Judgment : 1. The appellants, who are the defendants in the original suit, filed this second appeal against the decree andjudgment dated 17.03.2004 made in A.S.No.18 of 1998 on the file of the Subordinate Court, Arni reversing the decree and judgment dated 26.02.1998 made in O.S.No.616 of 1996 on the file of the Additional District Munsif Court, Arni. 2. For the sake of convenience, the defendants in the original suit are referred as appellants and the plaintiff in the suit is referred as respondent hereafter. 3. The respondent filed a suit for permanent injunction restraining the appellants to take water from 'A' schedule well and motor pumpset to any other properties, except 'B' schedule properties. Briefly the case of the respondent is that three brothers namely, Ponnuswamy Gounder, Bhujabuli Gounder and Shanmuga Gounder(respondent) jointly sold A and B schedule properties to the father of the appellants, namely, Munusamy Gounder on 12.04.1975 for a sum of Rs.9,000/-. Accordingly, Munusamy Gounder was enjoying B schedule properties from irrigating water from A schedule well and he died 1 ½ years before filing the suit. The appellants are entitled to take water from 'A' schedule well and pumpset situated in S.No.87/1 only to B schedule properties. On 07.08.1979, the respondent and his brother namely, Ponnuswamy Gounder divided their joint family properties, in which, 'C' and 'D' schedule properties were allotted to the share of the respondent. The appellants are entitled to 1/4th share (i.e) 'A' schedule well and pumpset and the respondent is entitled to 3/4th share (i.e.) described as 'C' schedule well and pumpset situated in S.No.87/1 and irrigating water from 'C' schedule to respondent's 'D' schedule properties. The appellants are taking water from 'A' schedule well to other properties also, except 'B' schedule properties from 01.08.1996 onwards. The appellants have no right to take water to other properties and hence, filed this suit. 4. The appellants filed written statement, in which, it is stated that initially one Periyappu Gounder and Raji Gounder were constituted a joint family and they were owning four acres of land with well, out of which, each got two acres and half share in the common well. The above said Raji Gounder having three sons namely, Ponnuswamy Gounder, Shanmuga Gounder and Bhujabuli Gounder. The above said Periyappu Gounder having only son namely, Munusamy Gounder. The above said Raji Gounder having three sons namely, Ponnuswamy Gounder, Shanmuga Gounder and Bhujabuli Gounder. The above said Periyappu Gounder having only son namely, Munusamy Gounder. The above said Ponnuswamy and the respondent namely, Shanmuga Gounder had sold their shares to the father of the appellants namely, Munusamy Gounder leaving one acre to Bhujabuli Gounder for his share and also they have executed a released deed in favour of Bhujabuli Gounder. The electric service connection is in common (i.e.) in the name of Raji Gounder and Periyappu Gounder. Now, the respondent, Ponnusamy Gounder and his legalheirs have no right over the properties. Bhujabuli Gounder is having three sons namely, Ramu, Mari and Vasu and each entitled to 1/3rd share each. Out of the same, the 2/3rd shares of Ramu and Mari were sold to the appellants. Therefore, the entire four acres of land of Periyappu Gounder and Raji Gounder, except 33 cents (i.e.) the share of Vasu, are in the hands of the appellants. The appellants are absolute owners of the entire property and also entitled to irrigate their properties from the suit well. Further the respondent has released his right over the suit property under the release deed to his brother and hence he is not in possession and enjoyment of any other property or owning the same as on date of the suit. Therefore, they prayed for dismissal of the suit. 5. The trial Court has framed five issues on the basis of the above said pleadings. On the side of the respondent/plaintiff, three witnesses were examined as PW1 to PW3 and twenty documents were marked as Exs.A1 to A20. On the side of the appellants/defendants, four witnesses were examined as DW1 to DW4 and twelve documents were marked as Exs.B1 to B12 and also C1 and C2 marked as Court documents. 6. The trial Court has considered the above said oral and documentary evidence adduced on either side and finally, dismissed the suit. Aggrieved over the above said findings of the trial Court, the respondent preferred the first appeal in A.S.No.18 of 1998 before the Subordinate Court, Arni. The first appellate Court set aside the decree and judgment passed by the trial Court and granted the relief of permanent injunction as prayed for by the respondent. Aggrieved over the above said findings of the trial Court, the respondent preferred the first appeal in A.S.No.18 of 1998 before the Subordinate Court, Arni. The first appellate Court set aside the decree and judgment passed by the trial Court and granted the relief of permanent injunction as prayed for by the respondent. Aggrieved over the above said reversal finding of the first appellate Court, the appellants, who are the defendants in the suit, preferred this second appeal. 7. This Court has admitted the second appeal on the following substantial questions of law: "1. Whether the appellate Judge is correct in granting an order of injunction restraining the defendants(appellants) from irrigation the lands inherited from the ancestors along with the well? 2. Whether the suit for an injunction restraining the defendants (appellants) from irrigating the lands from the suit well is maintainable when the suit does not say anything as to what are the lands ayacuts? 3. Whether the appellate Judge is correct in reversing the well considered judgment of trial Judge and decreeing the suit? and 4. Whether the appellate Judge is correct in decreeing the suit when admittedly the father of the defendants (appellants) had inherited the entire well and enjoyed 1/4th share i.e. 0.33 cents has been sold to the plaintiff (respondent)?" 8. Heard the learned counsel appearing for both sides and perused the materials available on record. 9. The relationship between the parties is not in dispute. Both sides admitted that Raji Gounder, Kutty Gounder and Periyappu gunder are sons of one Narayanasamy Gounder and Kutty Gounder died, without having any legalheir. Ponnuswamy Gounder, Bhujabuli Gounder and Shanmuga Gounder (respondent) are sons of Raji Gounder. Ponnuswamy Gounder died, without having any legalheir. Bhujabuli Gounder's wife namely, Andal and her children are Vasu, Ramu, Mari, Karpagam and Kannagi. The another son of Narayanasamy Gounder, namely, Periyappu Gounder's only son, namely, Munusamy Gounder and Munusamy Gounder's son is the first appellant. The first appellant's son is the second appellant. 10. Ponnuswamy Gounder died, without having any legalheir. Bhujabuli Gounder's wife namely, Andal and her children are Vasu, Ramu, Mari, Karpagam and Kannagi. The another son of Narayanasamy Gounder, namely, Periyappu Gounder's only son, namely, Munusamy Gounder and Munusamy Gounder's son is the first appellant. The first appellant's son is the second appellant. 10. The learned counsel appearing for respondent submitted that one Ponnuswamy Gounder, Bhujabuli Gounder and the respondent i.e. Shanmuga Gounder sold ¼ share in A schedule well and pumpset situated in S.No.87/1 and B schedule properties to Munusamy Gounder, the father of the first appellant and grand father of the second appellant for a sum of Rs.9,000/- on 12.4.1975 under Ex.A1 sale deed and Munusamy Gounder was enjoying the properties by irrigating the lands purchased by him from the well situated in A schedule property and he died 1 ½ years before filing the suit. The learned counsel further submitted that the appellants are entitled to only 1/4th share in the above said A schedule well and pumpset and further, they are entitled to take water to irrigate only B schedule properties from the A schedule well and not entitled to take water for other agricultural lands belonging to the appellants, but from 1.8.1996 onwards, the appellants taking water from A schedule well to other lands belonging the appellants and hence, the suit. 11. Per contra, the learned counsel appearingfor the appellants would submit that the respondent suppressed several material facts in the plaint and further the respondent has miserably failed to plead and prove the details of Ayacut lands irrigate from A schedule well situated in S.No.87/1. Therefore, on that grounds alone, the respondent is not entitled to any relief. Further, the learned counsel appearing for the appellants would submit that the respondent has not stated in the plaint or in the evidence that how three brothers namely, Ponnusamy Gounder, Bhujabuli Gounder and the respondent herein alone are originally entitled to the entire suit properties, while Raji Gounder, Kutty Gounder and Periyappu Gounder are all sons of one Narayanasamy Gounder. Further, the learned counsel appearing for the appellants would submit that the respondent has not stated in the plaint or in the evidence that how three brothers namely, Ponnusamy Gounder, Bhujabuli Gounder and the respondent herein alone are originally entitled to the entire suit properties, while Raji Gounder, Kutty Gounder and Periyappu Gounder are all sons of one Narayanasamy Gounder. It is not the case of the respondent that all the suit properties are self acquired properties of the above said Ponnusamy Gounder, Bhujabuli Gounder and Shanmuga Gounder alone and therefore, the learned counsel pointed out that all the above said properties are the ancestral properties and all three sons of Narayanasamy Gounder, namely, Raji Gounder, Kutty Gounder and Periyappu Gounder are entitled to the properties. Since Kutty Gounder died without having any legal heirs, both Raji Gounder and Periyappu Gounder are entitled to half share each in all the ancestral properties including well. Learned counsel further pointed out that the trial Court has discussed the above said facts and also properly considered the documents adduced on either side and held that the respondent has failed to prove that he is entitled to 3/4th share in the well and pumpset and the appellants are entitled to only 1/4th share in the well and pumpset. The learned counsel further pointed out that the first appellate Court has set aside the above said decree and judgment passed by the trial Court only relying on the names found in the revenue records like Adangal, Kists etc., but the first appellate Court has not considered the averments made in the registered document adduced on the side of the appellants like Exs.B8, B9 etc. and therefore, the finding of the first appellate Court is perverse finding. 12. As already stated above, both sides admitted that Raji Gounder, Kutty Gounder, Periyappu Gounder are three sons of one Narayanasamy Gounder. The above said Kutty Gounder died without having any legal heirs is not in dispute. The respondent has not pleaded and proved that all the suit properties are self acquired properties of Raji Gounder or his three sons. It is also not pleaded and proved that there is any partition between Raji Gounder and Periyappu Gounder. The respondent, only stated in the plaint and evidence that the properties originally belongs to Raji Gounder. The respondent has not pleaded and proved that all the suit properties are self acquired properties of Raji Gounder or his three sons. It is also not pleaded and proved that there is any partition between Raji Gounder and Periyappu Gounder. The respondent, only stated in the plaint and evidence that the properties originally belongs to Raji Gounder. Except some entries in the revenue records, no other documents to prove that all the properties originally belonged to Raji Gounder alone or his sons. 13. Per contra, on the side of the appellants have produced Ex.B8 a copy of mortgage deed dated 07.04.1950. A perusal of the above said document reveals that Raji Gounder, Ponnusamy Gounder and Bhujabuli Gounder and also minor Shanmugam executed a mortgage deed in favour of one Uthamaraya Chettiar. In the said document, it is clearly stated as @nkw;go fU';fy;fl;L fpzh; xz;zpy; bghpag;g[ ft[z;lUf;F ghjp fpzW nghf v';fspd; bghJtpy; ghjp fpzWk; jz;zPUk;@/The another document marked by the appellants side i.e. Ex.B9 revealed that on 05.07.1967, Ponnusamy Gounder, S/o Raji Gounder executed a mortgage deed in favour of Aandal ammal, in which it is stated as half share in the well and pumpset situated in S.No.87/1-0.67 acres. A careful reading of the above said document clearly revealed that the well and pumpset situated in S.No.87/1 is not exclusively belonged to Raji Gounder or his sons but Raji Gounder is entitled to only half share in the above said well and the remaining half share belonged to Periyappu Gounder as rightly pointed out by the learned counsel appearing for the appellants. The respondent deposed as PW1, in which, he has clearly admitted that as per Ex.B9 mortgage deed half share in the well belonged to Periyappu Gounder and the above said well is only situated in S.No.87/1. From the above said oral and documentary evidence revealed that the entire well and pumpset are not originally belonged to Raji Gounder or his sons as pleaded by the respondent, but, the above said well belonged to both Periyappu Gounder and Raji Gounder. 14. Further, the respondent has not stated in the plaint or at the time of evidence that what are the Ayacut lands for irrigation from well and pumpset situated in S.No.87/1. As already discussed in the above said well, Raji Gounder and Periyappu Gounder are entitled to half share each. 14. Further, the respondent has not stated in the plaint or at the time of evidence that what are the Ayacut lands for irrigation from well and pumpset situated in S.No.87/1. As already discussed in the above said well, Raji Gounder and Periyappu Gounder are entitled to half share each. In the above said circumstances, without any oral and documentary evidence, it cannot be presumed that the suit properties alone are Ayacut lands of the above said well and pumpset as contended by the respondent. Therefore, the trial court has discussed in detail and rightly held that the respondent is not entitled to the relief as prayed for in the paint. 15. A perusal of the judgment of the first appellant Court revealed that without any acceptable reasons, the first appellate Court rejected the averments made in the documents namely, Exs.B8 and B9 and mainly relied on the entries made in the revenue records. The first appellate Court rejected Ex.B8 document only on the ground that S.No.87/1 is not mentioned in the above said document. The first appellate Court failed to consider the clear admission of the respondent deposed as PW1 as the above said well situated in S.No.87/1. Further, the respondent has not stated or suggested at the time of evidence that the above said well mentioned in Ex.B8 situated in another survey number. Therefore, the well mentioned in Exs.B8 and B9 referred to only the well situated in S.No.87/1 as rightly contended by the learned counsel appearing for the appellants. 16. Further, the first appellate Court has not at all considered the main contention of the appellants that the respondent has not stated in the plaint or evidence that what are the Ayacut lands irrigated from well and pumpset situated in S.No.87/1. As already discussed, half share in the well belonged to Periyappu Gounder, the appellants are the legal heirs of Periyappu Gounder and hence, they are entitled to half share in the entire suit well and pumpset. Further, the appellants are entitled to share in the above said well and pumpset in view of Exs.A1 and A4, release and sale deed documents as rightly pointed out by the learned counsel appearing for the appellants. The first appellate Court has wrongly discussed about the entitlement of lands instead of question to be decided about the entitlements of irrigation alone. The first appellate Court has wrongly discussed about the entitlement of lands instead of question to be decided about the entitlements of irrigation alone. Therefore, the first appellate Court has failed to understand the ayacut lands and has given a wrong finding in its judgment. Further, the first appellate Court has failed to consider the fact that the appellants are not irrigating the properties purchased from any third party but the irrigation is only the lands inherited by them from their ancestral. As rightly pointed by the learned counsel appearing for the appellants, the respondent has no right except an extent of 33 cents or 21 ½ cents in the entire suit properties and therefore, there is no prejudice or hardship in getting water from the above said well and pumpset to irrigate the other lands of appellants inherited from their ancestral. 17. The learned counsel appearing for the appellants relied on two decisions namely, 1) Ayyaswami Gounder and others v. Munnuswamy Gounder and others reported in (1984)4 SCC 376 and Chinnappan @ Annavi v. Veeramalai @ Thangaraj reported in(2002-4-L.W.520)and submitted that the respondent as the plaintiff failed to prove his case and the appellants as a co-owner and hence, even assuming that the respondent is entitled to any share in the well, the appellants as one of the co-owner is entitled to irrigate water from the well to their properties. 18. The first decision relied on by the learned counsel appearing for the appellants viz., Ayyaswami Gounder and others v. Munnuswamy Gounder and others reported in (1984)4 SCC 376 in which, paragraphs 10 and 11 read as follows: “10. We find considerable force in this contention. In the absence of any specific pleading regarding prejudice or detriment to the defendants-respondents the plaintiffs have every right to use the common land and the common channel. The plaintiffs-appellants were claiming their right on the basis of admitted co-ownership rights which includes unrestricted user, unlimited in point or disposition, and the High Court was not justified in holding that the plaintiffs' right to take water was not acquired by any grant from the defendants-respondents or from any other sale deed. The right of co-ownership presupposes a bundle of rights which has been lost sight of by the High Court. 11. The right of co-ownership presupposes a bundle of rights which has been lost sight of by the High Court. 11. The only restriction put by law on the common user of land by a co-owner is that it should not be so used as to prejudicially affect or put the other co-owner to a detriment.” The second decision viz., Chinnappan @ Annavi v. Veeramalai @ Thangaraj reported in (2002-4-L.W.520) in which, paragraph No.10 reads as follows: “10. The appellant/defendant had taken a consistent stand that for a very long time, they were taking water through the suit channel only and according to him, both of them are joint owners. This being so, the plaintiff being one of the joint owners is not entitled to get any relief of injunction against the defendant.” 19. A careful reading of the above two decisions revealed that in the instant case, the appellants are admittedly co-owners. Except 33 cents situated in S.No.87/1, all the other properties have been sold by the respondent as already discussed above. Further, the respondent has failed to prove that what are the ayacut lands for irrigation from the suit well. In view of the discussion in detail in the earlier paragraphs and also in view of the settled principles of law laid down in the decisions relied on by the appellants, the respondent is not entitled to the relief as prayed for in the plaint. 20. Per contra, the learned counsel appearing for the respondent has relied on five decisions of this Court, which are as follows: (i) The first decision, namely in Karuppa Gounder v. Muthuswami Gounder reported in 1968 MLJ 397 wherein it is held that “...In the instant case, there is no proof that the rights of the plaintiffs have in any way been affected. In fact a perusal of the judgment of the Courts below indicates that the plaintiff has not sustained any damage or any injury. Further, I am of opinion that without adequate data about the extent of the lands irrigated, the diamensions of the well, the nature of the sorings and the quantity of the water available during rainy season and the rest of the year, it is not possible to impose any restriction or give any indications as to how the plaintiff and the defendant should enjoy their right to take water from the well. It may be that even if the defendant uses the pumpset all throughout the week, there may still be enough water left for the plaintiff to irrigate his lands, or it may be that the lands which the plaintiff irrigates may be far less in extent than the lands which the defendant is irrigating with the use of the water from the well. The position may be vice versa. As observed earlier it depends upon very many factors about which there is no pleadings no evidence. (ii) The second decision namely, Sivarama Pillai and others v. Marichami Pillai reported in 1970 MLJ 376 wherein it is held that “..... It is unnecessary to deal with the aspect further because I am of the view that independently of any question of damage, the plaintiff will be entitled to an injunction restraining the defendants from taking water for irrigating other lands. It is necessary to observe that this limit or fetter on the defendant with regard to the use of the water from the well equally applies to the plaintiff who too cannot take water for irrigating the lands newly acquired by him.” (iii) The third decision, namely,K.V.Venugopala Reddiar v. Alliammal and 3 others reported in1997-1-L.W.435 in which, paragraph No.7 reads as follows: “7. As noticed earlier, the learned counsel for the appellant forcibly contended to distinguish the decision rendered in AIR 1973 Madras 42=85 L.W. 659 (cited supra) on the ground that unlike the facts of the case therein, in the case concerned in this appeal, it is not a case of one co-owner, from his exclusive well trying to take water by using the common channel in exercise of his right as a co-owner, that is in question, but the right of the 1st defendant herself not a co-owner but who happens to be the wife of the second defendant, a co-owner trying to take water from her exclusive well to other lands through the common channel, and this vital distinction on the facts would render the decision in AIR 1973 Madras 1942=85 L.W. 659 wholly inapplicable to the present case.” (iv) The fourth decision namely, Kasi Naidu v. Govindarajan and others reported in 1999 MLJ 746 in which, the last portion in paragraph No. 8 and 9 reads as follows: “8.... It is implicit in such arrangements that the common source of irrigation, the well, is kept in common for the only purpose of irrigating the lands which are allotted to the respective branches and to serve that purpose only, leaving out of account the other incidental purposes like bathing, washing, clothes, taking water for cattle, etc., he scheme of the arrangement cannot admit of any notion of the parties being entitled to the particular quantity of water (so many gallons)treating that alone as a distinct item of property, divorced from the lands. The well is set apart as common property for the most beneficial and profitable enjoyment of the land and it does not matter what label the parties give to their rights in the well, whether it is a right to a particular share in the well or whether a right to take water by turns. But what is crucial is that in the case of lands, valuable right is the source of irrigation. 9...... From the above said decisions, it is very clear that, (1) no damage need be proved by any infraction of the joint right of ownership, as the joint ownership of the well is an incident to the joint ownership of lands to irrigate which the said well was to be used; (2)it is not open to one of the owners to take water for irrigating other lands and contend that he has not exceeded his share of the right to take water from the well; and that 3)the ownership of water in the well is not independent to the ownership of land and hence, the use of water for lands other than that for which the well is intended is not permissible. But, the parties can come to an arrangement for the purpose of using the water to irrigate the other lands.” (v) The fifth decision namely, Chinnayan v. Palanivel and others reported in 2013-5-L.W.371 in which, paragraph No.13 reads as follows: “13. It is rightly argued so by the learned counsel for the defendant/appellant by relying upon the judgment of our High Court reported in Vol.75 LW 646 Ramachandra Gounder Vs. Venkatachala Gounder). It is rightly argued so by the learned counsel for the defendant/appellant by relying upon the judgment of our High Court reported in Vol.75 LW 646 Ramachandra Gounder Vs. Venkatachala Gounder). Applying the principles laid down in the authority cited above, it is a fit case wherein the principle of restriction is held inapplicable and only restriction that could be imposed herein is the enjoyment should be in such manner without doing anything which is likely to cause damage, increase or dinimish, weaken or cause injury to the property in common ownership.” 21. On a perusal of the above said decisions relied on by the respondent, it is revealed that the facts of the above said cases are not applicable to the facts of the present case. As already discussed in the instant case, the respondent has miserably failed to prove that what are the ayacut lands for irrigation from the suit well situated in S.No.87/1. Admittedly, the respondent has already alienated the properties and therefore, he is not entitled to any property except 33 cents. Further, the appellants have proved that already half share in the suit property from their ancestress and they purchased the shares from the respondent and other legal heirs particularly under Exs.A1 and A4 and therefore, all the decisions relied on by the learned counsel appearing for the respondent are not applicable to the facts of the present case. 22. Therefore, the first appellate Court has wrongly granted the relief of injunction as against the appellants and answered the first Substantial Question of Law accordingly. As already discussed above, the respondent has failed to give any particulars of ayacut lands irrigating from the well and pumpset situated in S.No.87/1 and on that ground also, the suit is not maintainable and answered the second Substantial Question of Law accordingly. Further, considering the appellants share in the well and pumpset and also purchased lands from the respondent by the appellants and other legal heirs, the reversal finding of the first appellate Court is not correct and it is perverse finding and answered the third and fourth Substantial Questions of Law accordingly. In the above said discussion, this Court is of the view that the findings of the first appellate Court are to be set aside as rightly pointed out by the learned counsel appearing for the appellants. 23. In the above said discussion, this Court is of the view that the findings of the first appellate Court are to be set aside as rightly pointed out by the learned counsel appearing for the appellants. 23. In the result, this Second Appeal is allowed and the decree and judgment passed by the first appellate Court are set aside and the decree and the decree and judgment passed by the trial Court are confirmed. No order as to costs.