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2017 DIGILAW 3395 (MAD)

Ayyavoo v. Chinnasamy

2017-10-23

T.RAVINDRAN

body2017
JUDGMENT : In this Second Appeal the plaintiff has impugned the Judgment and Decree, dated 09.10.2000 passed in A.S. No. 109 of 2000, on the file of the Principal District Court, Erode, reversing the Judgment and Decree, dated 27.03.2000, made in O.S. No. 176 of 1998, on the file of the District Munsif Cum Judicial Magistrate Court, Perundurai. 2. The parties are referred to as per the rankings in the Trial Court. 3. Suit for declaration, mandatory injunction and permanent injunction. 4. The case of the plaintiff in brief is that the plaintiff, who is the absolute owner of the house bearing door no.25/2, having purchased the same, by virtue of the sale deed dated 06.06.1994, had been draining the waste water from the above said property to the vacant site situated on the northern side of the said property, for the past 22 years, right from the period of his predecessors in title and the defendants, who are the adjacent owners of the plaintiff, obstructed the draining of the water by the plaintiff into the northern portion, as described in the plaint schedule by putting up heap of mud in the drainage and in this connection, complaint has been given by the plaintiff to the Commissioner Panchayat Union, Chennimalai and pursuant to the representation given by the plaintiff, necessary permission had been granted by the President, Komaravalsu Panchayat, to the plaintiff to lay under ground pipeline to drain the drainage water in the suit property and accordingly, the plaintiff had laid the underground pipeline in the ABCD portion as shown in the rough plan. However, the defendants destroyed the PVC pipeline put up by the plaintiff without any authority and other than the suit property, the plaintiff have no place to drain the water from his house property an inasmuch as the defendants 5 and 6 have not taken appropriate action restraining the defendants 1 to 4 from causing obstruction to the draining of water into the suit property and as the plaintiff has easementary right to drain water into the suit property, both by way of prescription and necessity, according to the plaintiff, he is necessitated to lay the suit for appropriate relief’s. 5. The case of the defendants 1 to 4 in brief is that the suit is not maintainable either in law or on facts. The case of the defendants 1 to 4 in brief is that the suit is not maintainable either in law or on facts. It is false to state that the plaintiff and his predecessors in title had been draining the water into the suit property for the past 22 years and thereby, prescribed easementary right in respect of the same, by prescription. In fact, the suit property is a public property belonging to the temple and the deities located therein are worshipped by the villagers and there is a public well, overhead water tank and water tap for the use of the public and daily poojas has been performed by the worshippers and hence, it is false to state that the plaintiff has been draining water into the public area and the allegations that the defendants are attempting to obstruct the draining of the water into the suit property are also false. Only the villagers of the Thenmugam Vellode had obstructed the plaintiff from putting up the drainage channel into the public property and the plaintiff connived with defendants 5 and 6 to lay underground pipeline into the suit property and the defendants 5 and 6 have no authority to grant permission to the plaintiff to lay underneath pipeline in the suit property and it is false to state that the plaintiff has easementary right to drain water into the suit property by way of prescription and necessity and the suit without any cause of action is liable to be dismissed. 6. The defendants 1 to 4 have also taken a plea, in the additional written statement that the suit property is a natham, belonging to the Government and the plaintiff, if at all has any right, has to seek the relief against the Government and not against the defendants and hence, the suit is bad for non-joinder of the Government as necessary party and the hence suit is liable to be dismissed. 7. 7. The case of the 5th defendant in brief is that on the representation given by the plaintiff, the 5th defendant gave permission to the plaintiff to lay underground pipeline to drain the drainage water in the suit property and accordingly, the plaintiff laid pipeline in the ABCD portion and it is true that the said pipeline was destroyed by some miscreants without authority and the defendants are not aware, whether, the said acts have been committed by the defendants 1 to 4 and the defendant has no objection in restoring the pipeline as claimed by the plaintiff and ready to comply with the order that may be passed by the Court. 8. The case of the 6th defendant in brief is that as per the request of the plaintiff, necessary directions was given to the 5th defendant to grant permission to the plaintiff, to put up the pipeline to drain the water into the suit property and accordingly, the plaintiff had laid underground pipeline and it is represented by the plaintiff that some persons had damaged the pipeline and to take necessary action against the miscreants and the same had been forwarded to the Sub-Inspector of police for further action. The plaintiff is entitled for protection as claimed in the plaint and hence, the suit may be disposed of accordingly. 9. In support of the plaintiff case PWs1 and 2 were examined and Exs.A1 to A4 were marked. On the side of the defendants DW1 and 2 were examined and Ex. B1 was marked. Exs.C1 and C2 were also marked. 10. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Trial Court was pleased to decree the suit as prayed for. 11. The defendants 1 to 4, aggrieved over the judgment and decree passed by the Trial Court, preferred the first appeal and the First Appellate Court, on an appreciation of all the materials placed, set-aside the judgment and decree of the Trial Court by allowing the appeal preferred by the defendants 1 to 4 and consequently, dismissed the suit levied by the plaintiff. Challenging the same, the present second appeal has been preferred. 12. The following substantial questions of law were formulated for consideration, at the time of the admission of the second appeal. 1. Challenging the same, the present second appeal has been preferred. 12. The following substantial questions of law were formulated for consideration, at the time of the admission of the second appeal. 1. Whether the lower appellate Court has property appreciated and applied the principles to find out whether the plaintiff is entitled to claim the right of easement by prescription? 2. Whether the findings of the lower appellate Court are contrary to the evidence, especially when the evidence of DW1 and DW2 support the case of the plaintiff? 3. Whether the findings of the lower appellate Court are correct in law, especially when the lower appellate Court had not adverted to all the reasons given by the trial Court and that it had not come to grips with the reasons given by the Trial Court? 13. The plaintiff claims title to his house property by virtue of the sale deed dated 06.06.1994 marked as Ex.A1. Now, it is the case of the plaintiff that he and his predecessors in title had been draining the drainage water into the northern side of the above said property for several years and the same had been obstructed by the defendants 1 to 4, without any authority and in this connection, on the representation of the plaintiff, necessary permission had been granted to him by the defendants 5 to 6 to put up underneath pipeline in the northern portion i.e., the suit property and accordingly, the plaintiff had put up underneath pipeline for the purpose of draining drainage water from his house property and inasmuch as the defendants 1 to 4, without any authority damaged the pipeline, according to the plaintiff, he had lodged necessary complaint with the defendants 5 and 6 for appropriate action and inasmuch as, the plaintiff has easementary right to drain the water into the suit property, by way of prescription and also by way of necessity and also, the same had been obstructed by the defendants 1 to 4, according to the plaintiff, he has been necessitated to lay the suit for appropriate relief’s. 14. The defendants 5 and 6 are supporting the case of the plaintiff as such, however, the defendants 1 to 4 have taken a plea that the property through which the plaintiff seeks to drain the drainage water is belonging to the temple and the deities located therein are worshipped by the public therein and there is a public well, water tank and trees in the property and poojas had been celebrated by the worshippers and therefore, according to the defendants 1 to 4, the plaintiff is not entitled to drain the drainage water into the said suit property and the attempt of the plaintiff to drain the drainage water was obstructed by the public and the defendants 5 and 6 have no authority to grant permission to the plaintiff to put up the pipeline in the said property and hence, according to the defendants 1 to 4, the plaintiff cannot seek the relief’s prayed for in the suit. The defendants 1 to 4 have also raised a plea that the property to which the plaintiff seek to drain the drainage water is a natham and belongs to the Government. 15. Even as per the plaint averments, it is found that it is not the case of the plaintiff that the suit property through which he seeks to drain the drainage water belongs to the defendants 1 to 4. As per the evidence adduced in this matter, particularly through PW1, who is the plaintiff, it is found that the property through which the plaintiff seek to drain the drainage water is located on the northern portion of his house property and it is admitted by PW1, that in the said northern portion a public well, public water tank and temple are located and it is also admitted that the worshippers use to worship the deities in the temple and poojas had been celebrated in the area and it is thus found that the property through which the plaintiff seeks to drain the drainage water only belongs to the temple. In such view of the matter, it is found that the plaintiff has also further admitted that he has not obtained any permission under Ex.A1 to drain the drainage water into the suit property from his vendors and further, he has clearly admitted that there is no record available to show that he his entitled to drain the drainage water into the northern portion of his house property. It is thus found that the plaintiff is only attempting to drain the drainage water into the public area. In such view of the matter, it is equally found that the suit property or the area through which the plaintiff seek to drain the drainage water does not belong to the defendants 1 to 4. 16. Now, according to the plaintiff, he has easementary right both by way of prescription and necessity, to drain the drainage water into the suit property and accordingly, seeks for necessary reliefs against defendants 1 to 4 in particular. When it is not the case of the plaintiff that the suit property in respect of which, he seeks easementary right belongs to defendants 1 to 4 and the plaintiff claims only the easementary right with reference to the same, both by way of prescription as well as necessity, as rightly determined by the First Appellate Court, when the defendants 1 to 4 are not the owners of the said property and with the materials placed, it is found that the said property belongs to the temple or the Government as such, as rightly held by the First Appellate Court, the relationship of the dominant owner and the servient owner between the plaintiff and defendants 1 to 4 is not in existence and in such view of the matter, it has not been explained by the plaintiff as to how, he is entitled to maintain the suit as against the defendants 1 to 4 for establishing the easementary right, in respect of the property, to which the defendants has no interest or right in any manner. It is thus found by the First Appellate Court rightly that the defendants 1 to 4 not being the servient owners of the suit property through which the plaintiff seeking to drain the drainage water, it is seen that as such, the plaintiff is not entitled to maintain the suit against the defendants 1 to 4 for the relief’s sought for in the plaint. 17. It is the case of the plaintiff that the defendants 1 to 4 made attempts to obstruct the acts of draining the drainage water into the suit property to which they are not entitled to do so. However, with reference to the above case of the plaintiff, there has been specific denial on the part of the defendants 1 to 4. Despite of specific denials of the defendants, it has not been established by the plaintiff that the defendants 1 to 4, as such, had obstructed the acts of the plaintiff in draining the drainage water into the suit property. The plaintiff has not placed any acceptable material to prove the same and the complaint said to have been lodged by the plaintiff with reference to the same, as against the defendants 1 to 4 marked as Ex.A3, is not shown to be really lodged by the plaintiff as such if so, it has not been explained by the plaintiff, as to what further action has been taken with reference to the same, as against the defendants 1 to 4. In this connection, the plaintiff has not chosen to examine the concerned police authority, as to any further action had been initiated against the defendants 1 to 4 on the alleged complaint said to have been made by the plaintiff. Though the defendants 5 and 6 would contend that the plaintiff has lodged complaints about the destruction of the pipeline put up by him in the suit property, with reference to the same no materials as such has been placed. It has been further not explained on the part of the defendants 5 and 6, as to on what basis or authority they had granted permission to the plaintiff to lay the pipeline in the public property for the purpose of draining the drainage water. 18. It has been further not explained on the part of the defendants 5 and 6, as to on what basis or authority they had granted permission to the plaintiff to lay the pipeline in the public property for the purpose of draining the drainage water. 18. That apart, the plaintiff as such has not placed any material to hold that he had been validly granted the permission by defendants 5 and 6 to lay the pipeline in the property concerned for the purpose of draining the drainage water. The documents marked as Exs.A2 to A4 do not in any manner serve the case of the plaintiff with reference to the above aspects. It is thus found that the plaintiff with a view to create some right over the suit property, which belongs to the temple or the Government as such, has chosen to lay the suit on the basis of certain invented facts and accordingly, it is found that he has levied the suit against the defendants 1 to 4 without any cause of action. Accordingly, it is found that the plaintiff is unable to place any material to hold that he had been draining the drainage water into the suit property for several years and there is no other area available other than the suit property for the purpose of draining the drainage water. Accordingly, it is found that the plaintiff is unable to place any material to hold that he had been draining the drainage water into the suit property for several years and there is no other area available other than the suit property for the purpose of draining the drainage water. It is thus found by the First Appellate Court rightly that when the defendants 1 to 4 have no connection, what so ever with the property in question, in respect to which the plaintiff seeks relief and when the plaintiff has also failed to establish that he is entitled to drain the drainage water into the said property lawfully and when there is no relationship of dominant owner and servient owner between the plaintiff and the defendants 1 to 4 in respect of the suit property as such and when the plaintiff has failed to establish that he had been draining the drainage water into the suit property for more than the statutory period and also the plaintiff is entitled to drain the drainage water into the suit property by way of easement of necessity and when the ingredients contemplated under Section 13 and 15 of the Indian Easements Act, are not satisfied by the plaintiff, as rightly put-forth by the counsel appearing for the defendants, it is found that the Trial Court, had erroneously granted the relief’s sought for by the plaintiff and accordingly, it is found that the First Appellate Court has rightly set aside the judgment and decree by giving acceptable and cogent reasons and in such view of the matter, it is found that the judgment of the First Appellate Court, do not call for any interference. 19. In the light of the above discussions, it is found that the First Appellate Court has properly appreciated and applied the correct principles of law, based upon the oral and documentary evidence adduced in the matter, in the correct perspective, both on factual aspects and legal aspects are rightly negatived the relief’s sought for by the plaintiff. It is further found that the reasonings and consequent findings of the First Appellate Court for reversing the judgment and decree of the Trial Court are found to be based on sound factors and they are not shown to be vitiated by any infirmities, errors or mistakes. It is further found that the reasonings and consequent findings of the First Appellate Court for reversing the judgment and decree of the Trial Court are found to be based on sound factors and they are not shown to be vitiated by any infirmities, errors or mistakes. In such view of the matter, the substantial questions of law formulated in the second Appeal are answered against the plaintiff and in favour of the defendants 1 to 4. 20. Resultantly, the judgment and decreed dated 09.10.2000 passed in A.S.No.109 of 2000 on the file of the Principal District Court Erode, are confirmed and consequently the second appeal is dismissed with costs. Consequently connected miscellaneous petitions if any is closed.