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2016 DIGILAW 1676 (MAD)

Karuppaiah Pillai v. Palanisamy

2016-04-28

R.MAHADEVAN

body2016
JUDGMENT : R. Mahadevan, J. This Appeal is filed against the Judgment and Decree dated 30.3.1999 made in A.S. No. 2 of 1997 on the file of the Additional District Judge-cum-chief Judicial Magistrate Court Pudukottai reversing the Judgment and Decree dated 27.2.1990 made in O.S. No. 153 of 1983 on the file of the District Munsif Court, Aranthangi. 2. The facts arising out of this Second Appeal, are as under: The Appellants are the Plaintiffs 1, 2 and 4 and the Respondents are the Defendants in the Suit filed in O.S. No. 153 of 1983 on the file the District Munsif Court, Aranthangi. The Plaintiffs filed a Suit in O.S. No. 153 of 1983 on the file of the District Munsif Court, Aranthangi, to pass a Decree in their favour declaring that the Plaintiffs have got a right to and are entitled to take water from Vallar river by cross-bunding, to be taken to the Edayathimangalam Eri by the link vari branches from the river to feed and fill up the said Eri for irrigating the lands on the East, North and South of the Eri and for an injunction restraining the Defendants from in any manner demolishing or interfering with the Plaintiffs' bund and right to bund in the jungle river Vellaru for getting water. 3. It is stated in the Plaint that the Plaintiffs are the ryots of Edayathimangalam Village in Avadayarkoil Taluk and they have their lands among others under Ayacut of Edayathimangalam Eri. This Eri was previously a Rainfed Tank, however, drawing its supply from Vellaru. A branch vari going by the Edayathimangalam Vari takes of from the Vellaru river through Pannavayal Village and fill up the said Eri Edayathimangalam has also been a rain fed village and it is only in recent times, the CEP has been taken to this Village. The water of the CEP is always in paucity at the tail end supply and Edayathimangalam itself never get filled up with the CEP water. Now more than 1400 acres are irrigated with water from this Edayathimangalam Eri. Being a Jungle River, it has been customary for the villagers and Ayacutdars to get water from this river whenever water is available by cross-bunding the river to allow stagnation for a particular height to facilitate feeding the line Eris or water course to be taken to the village storage like tanks streams or Eris. Being a Jungle River, it has been customary for the villagers and Ayacutdars to get water from this river whenever water is available by cross-bunding the river to allow stagnation for a particular height to facilitate feeding the line Eris or water course to be taken to the village storage like tanks streams or Eris. Recently, the Government had constructed a Dam in Thandalai Village to supply for Manamelkudi and other villages. By cross-bunding, the other villages in the lower riparian reaches are fed copiously The Thandalai Dam has good stock and storage of water. Hence, the cross bunding is a regular feature almost every season, sometimes even more than twice or thrice. While the right of the Plaintiffs' villagers to take water from Vallar river by such cross-bunding has been in vogue from time immemorial just consistent with similar practise all along the upper reaches of the Jungle River, the Plaintiffs require a perspective right to get such water by the same method without any diminution to the supply and storage in their Village Eri for their irrigation of their Ayacut lands. For ulterior reasons the villagers of the lower down reaches around the Thandalai dam have been using their influence with the Revenue Department to demolish the cross-bunding by the Plaintiffs and preventing the Plaintiffs to take water from the Jungle River. An order was also passed on 27.12.1982 in Rc. No. 14688/82 A1, by the Assistant Collector, Aranthangi, that plaintiffs have no right to take water by cross-bunding and the same was communicated to the lower cadre people and they sprung up into action on the next day to smash and demolish the cross bund of the Plaintiffs. The Plaintiffs also obtained an Order of stay from the District Collector, Pudukottai. Finally, the District Collector dismissed the Appeal filed by the plaintiffs on 2.07.1983. In these circumstances, the present Suit is filed with the prayer as stated supra. 4. Written Statement was filed by the Defendants stating that the Suit filed is false, vexatious, frivolous and not maintainable in law and has to be dismissed in limine. It is stated in the Written Statement that the allegation in Paragraph 1 of the Plaint that Edayathimangalam Eri is drawing water supply from Vellaru River are not correct, and that the said Eri has no right to draw water from the Vellaru River as stated in the Plaint. It is stated in the Written Statement that the allegation in Paragraph 1 of the Plaint that Edayathimangalam Eri is drawing water supply from Vellaru River are not correct, and that the said Eri has no right to draw water from the Vellaru River as stated in the Plaint. The Suit village was taken over by the Government and notified on 1.10.1951 as per G.O. Ms. No. 2302, Revenue, dated 1.9.1951 and the Ryotwari Settlement has been introduced during Fasli 1369. During the Settlement, the Suit Eri is notified as CMP fed Eri. Hence, the allegations that Edayathimangalam Eri is a rain fed tank, is absolutely false. It is stated that the allegations in Paragraph-3 of the Plaint that more than 1400 acres are being irrigated with water from this Edayathimangalam Eri are imaginary Further the allegation in the Plaint that everybody has a right to take water from Vellaru river by putting cross-bunding, is not correct Finally, it is stated that the Plaintiffs are the ayacutdars of the said Eri and the said Eri is a CMP fed Eri and the Registered Layout of the said Eri is only 770-87 acres. Therefore, the Plaintiffs are not entitled to take water from the Vellaru river by forming mud bund. Stating so, it is prayed to dismiss the Suit with Costs. 5. Before the Trial Court, on the side of the Plaintiffs, PW1 to PW8 were examined and documents Exs. A1 to A6 were marked. On the side of the Defendants, DW1 to DW8 were examined and documents Exs.B1 and B2 were marked Exs.C1 to C4 were marked as Court Exhibits. 6. Considering the oral and documentary evidences on record, the Trial Court came to the conclusion that the Plaintiffs are entitled to construct a mud bund running not more than 1/4th of the Vellar river, with the height not more than 4 feet and granted Permanent Injunction restraining the Defendants from causing any hindrance over the said construction. 7. Aggrieved by the Judgment of the Trial Court, the Defendants 4 to 7 filed an Appeal in A.S. No. 2 of 1997 on the file of the Additional District Judge-cum-Chief Judicial Magistrate Court, Pudukottai. The Lower Appellate Court reversed the findings of the Trial Court and allowed the Appeal. 8. Challenging the Judgment and Decree of the Lower Appellate Court, this Second Appeal has been filed. 9. The Lower Appellate Court reversed the findings of the Trial Court and allowed the Appeal. 8. Challenging the Judgment and Decree of the Lower Appellate Court, this Second Appeal has been filed. 9. This Court admitted the Second Appeal on 26.10.1999 framing the following Substantial Questions of : (a) Whether the Lower Appellate Court is right in reversing the Judgment and Decree of the Trial Court when the Appeal filed by Respondents 5 to 7 in A.S. No. 8 of 1992 against the same Judgment and Decree made in O.S. No. 153 of 1983 was dismissed for default and subsequently restored and ended against them ? (b) Whether the Judgment and Decree of the Lower Appellate Court is sustainable in law in view of the fact that the Appellants have established and proved the usage of water from Vellar as mentioned in Ex.A3 coupled with the oral evidence of PW8. 10. The learned Counsel for the Appellants has submitted that the Lower Appellate Court committed an error in reversing the findings of the Trial Court, when the Trial Court itself has granted the relief to have the mud bund for a limited height taking into account of the fact that no injury would be caused to the Respondents 1 to 4 herein. He further submitted that since the Appeal filed by the Respondents before the Lower Appellate Court was dismissed for default and the subsequent Application filed to restore the same was also dismissed by the same learned Judge, no relief should have been granted to the Respondents 1 to 4 herein. He also submitted that the Lower Appellate Court ought to have considered the Departmental person's evidence produced bi the Appellants, who have clearly spoken about the maintenance work carried in the channel reaching the Appellants' village from the said Kattaru. He further submitted that the Lower Appellate Court has omitted to see that the irrigation memoir of the village through which the channel passes through, clearly establishes the supply through the said channel to the Appellants village and further the said source has been mentioned as the source of supply for the said middle village. He further submitted that the Lower Appellate Court has omitted to see that the irrigation memoir of the village through which the channel passes through, clearly establishes the supply through the said channel to the Appellants village and further the said source has been mentioned as the source of supply for the said middle village. He further submitted that the Lower Appellate Court failed to see that the material evidence available on record would clearly show that the water from Kattaru is also an another source of supply to the lands of the Appellants' village, due to the short supply of water to the Ayacutdhars. Stating so, the learned Counsel for the Appellants submitted that the Lower Appellate Court has not applied its mind independently afresh on the evidence adduced by the parties before the Trial Court and hence the Second Appeal has to be allowed. 11. The learned Counsel for the Appellants relied on the Judgment of this Court in Nambi Iyyengar v. The District Collector, Tirunelveli, 2002 (1) MLJ 43 , to emphasise her submission that the First Appellate Court, being the final Court of facts, is duty bound to apply its mind independently afresh on the evidence adduced by the parties before the Trial Court to explain its reasons for the findings and conclusions arrived at. 12. Per contra. the learned Counsel for the First Respondent, refuted the submissions made by the learned Counsel for the Appellants and submitted that the Lower Appellate Court has considered the matter in detail, applied its mind meticulously and rendered the Judgment and therefore, the same requires no interference by this Court and that this Second Appeal has to be dismissed. 13. The learned Counsel for the First Respondent, relied on the Judgment of this Court in Sunda Thevar v. Collector of Madurai, 1984 (2) MLJ 451 , and emphasised his submission that the prerogative right of the Government recognised in decisions with respect to maintenance of Irrigation sources will enable the Government to dig the concerned channel and the Plaintiffs cannot complain the same. 14. 14. The learned Counsel for the First Respondent also relied on the Judgment of this Court in Ponnusamy v. The State of Tamil Nadu, 2005 (5) CTC 427 , and submitted that when the Government, in exercise of sovereign power proposes to harness water resources, the Civil Court has no jurisdiction to issue Order of Injunction to prohibit such exercise of power. 15. The learned Counsel for the First Respondent, also relied on the Judgment of this Court in State of Tamil Nadu v. V.A. Abdul Karim, 1997 (3) CTC 639 (DB), and stressed his point that the State Government has power to regulate and distribute water for effective irrigation of Agricultural lands and it is unjust and inequitable to deny others even water for one crop to provide water to the Plaintiffs for raising second crop merely because the lands are registered as "double crop" wet lands. 16. Lastly, the learned Counsel for the First Respondent, relied on the Judgment of this Court in Arulsamy v. State of Tamil Nadu, 2003 (4) CTC 670 : 2003 (3) MLJ 618 , in support of his contention that the Civil Court has no jurisdiction, to entertain a Suit for Injunction, in order to curtail the power of the Government. 17. The learned Government Advocate appearing on behalf of the Respondents 5 to 7, made his submissions in the same lines, as argued by the learned Counsel for the First Respondent. 18. Heard the learned Counsel on either side and perused the materials available on record, carefully and meticulously. 19. The Suit was filed for construction of Sand Bund between the Anaicut at Manamelkudi and the Suit was decreed in favour of the Plaintiffs by the Trial Court holding that the Plaintiffs are entitled to construct a Mud Bund running not more than 1/4th of the Vellaru river, with the height not more than 4 feet, and granted Permanent Injunction restraining the Defendants from causing any hindrance over the said construction. But, on Appeal, the Lower Appellate Court allowed the Appeal, and the Suit was dismissed. Challenging the same, the present Second Appeal has been filed. 20. According to the Appellants, the sand bund constructed was a convention and as and when required, the same could be constructed. But, on Appeal, the Lower Appellate Court allowed the Appeal, and the Suit was dismissed. Challenging the same, the present Second Appeal has been filed. 20. According to the Appellants, the sand bund constructed was a convention and as and when required, the same could be constructed. The learned Counsel for the Appellants relied on the evidence of PW8-G Jayaraman, who was the Junior Engineer of Kallanai Channel Division in Nagudi, who stated in the cross-examination that for taking the water from Vellaru to Edayathimangalam Dam, the villagers there have a right to do so that they also have a right to take water by constructing a Sand Bund, and that it is not correct to state that Vellaru water cannot be taken to Edayathimangalam Dam. The Counsel also relied on the evidence of DW1-Ganapathy Thevar, who in the cross-examination, stated that before constructing their dam, they took water only by constructing Sand Bund. She also relied on the evidence of DW2-Thiagarajan, who in the cross-examination, stated that before construction of the present Dam, they took water only by constructing Sand Bund, and right from their ancestors from time immemorial, they took water only by constructing Sand Bund. 21. Learned Counsel for the First Respondent as well as the learned Government Advocate appearing for Respondents 5 to 7 have contended that Section 2 of the Tamil Nadu Land Encroachment Act, 1905, never permits any person to construct any Sand Bund according to their requirement. The Judgment of this Court in Sunda Thevar v. Collector of Madurai, 1984 (2) MLJ 451 , is relied on by the Respondents in this connection, wherein it is stated that no person is entitled to construct any Sand Bund according to their requirement. In that case, it was held that the prerogative right of the Government with respect to maintenance of irrigation sources will enable the Government to dig the channel BC and the Plaintiffs cannot complain about the same. 22. As rightly contended by the Respondents, no person is entitled to construct any sand bund according to their requirement, and the Government has a prerogative right with respect to maintenance of irrigation sources to enable the Government to dig the channel BC, for which the Plaintiffs cannot make any Complaint. 22. As rightly contended by the Respondents, no person is entitled to construct any sand bund according to their requirement, and the Government has a prerogative right with respect to maintenance of irrigation sources to enable the Government to dig the channel BC, for which the Plaintiffs cannot make any Complaint. In this regard, it would be appropriate to rely on the decision of this Court in Ponnusamy v. The State of Tamil Nachi, 2005 (5) CTC 427 , wherein it was held that when the Government, in exercise of sovereign power proposes to harness Water resources, the Civil Court has no jurisdiction to issue Order of Injunction to prohibit such exercise of power. In that Judgment, this Court has referred to Sections 3(c) & 4 of the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949 to come to the conclusion that the Civil Court's jurisdiction to grant Injunction against the Government is barred, under these Sections, and further, the decision of this Court in Sunda Thevar v. The Collector of Madurai (cited supra) has also been relied on, wherein this Court has taken a view as early as in the year 1983 that the Civil Court's jurisdiction to grant Injunction against the Government in a case of this nature is barred under Sections 3(c) and 4 of the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949. In Ponnusamy's case, this Court has also relied upon a Division Bench Judgment of this Court in State of Tamil Nadu, rep. by District Collector, Madurai v. V.A. Abdul Karim and others, 1997 (3) CTC 639 (DB), winch has been relied upon by the Respondents, to hold that no Injunction could be granted in view of Section 4 of the Act. The relevant paragraph of the said decision is extracted hereunder: "19. In a case in State of Tamil Nadu, rep by the District Collector, Madurai v. V.A. Abdul Karim and others. 1997 (3) CTC 639 , the Division Bench of this Court had an occasion to consider the scope of Section 4 of the Act as well as the easementary right coupled with the said provisions of law. In a case in State of Tamil Nadu, rep by the District Collector, Madurai v. V.A. Abdul Karim and others. 1997 (3) CTC 639 , the Division Bench of this Court had an occasion to consider the scope of Section 4 of the Act as well as the easementary right coupled with the said provisions of law. In its elaborate Judgment, the Division Bench has observed that no Injunction could be granted in view of Section 4 of the Act, thereby eclipsing the undoubted power of the State, to equally and equitably distribute natural resources of the community keeping in view the larger interest of the society. In this case, the Government realizing its duty and obligation in order to improve the local area, has rightly, justly, decided to; put up a dam, which was sought to be unjustly interfered with, which was rightly prevented by the Courts below, thereby requiring my seal of approval also, dismissing the Second Appeal." 23. In view of the above stated circumstances, the Substantial Questions of Law are answered against the Appellants and the Second Appeal is dismissed. No costs. Consequently the connected Miscellaneous Petition is closed. 24. For any of the grievances, it is for the parties to approach the Respondent-Government Authorities for getting appropriate relief. On the order hand, permitting the Appellants to construct the Sand Bund according to their requirement, will cause serious law and order situation, as the said act is not supported by legal canons. S.A. Dismissed - No Costs - C.M.P. Closed.