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2018 DIGILAW 1052 (MAD)

S. Jayachandra Chowdry v. T. Devaraj

2018-03-14

PUSHPA SATHYANARAYANA

body2018
JUDGMENT : 1. The plaintiff, aggrieved by the concurrent findings of the Courts below in a suit for permanent injunction restraining the defendant from effacing the channel in 'B' Schedule property and interfering with the plaintiff's right of taking water through the plan marked channel shown in the 'B' schedule property to irrigate the 'A' schedule properties. 2. The plaintiff is the owner of the properties described in the Schedule 'A'. He had got the same by way of partition between himself and his brother through a registered partition deed dated 02.12.2002. A patta was also obtained by him and the plaintiff has been cultivating the lands. Item Nos.1 to 7 of the 'A' schedule properties are wet lands (“TAMIL”), being irrigated from the Perathur lake comprised in survey No.190. It is stated that there is a well formed plan channel from the lake passing through survey Nos.126, 38, 39 and 40. The channel, which passes through survey No.40, ends on the South Eastern corner of the suit item No.5 and 6, that is, survey Nos.33/1 and 33/2. The plaintiff derives water through his land to irrigate his other lands. The plaintiff also had filed the Field Map Book (FMB) copies issued by the Village Administrative Officer (VAO) of the PErathur village in support of his case. The defendant is the owner of the property in Survey No.40. The defendant with mala fide intention is trying to efface the lake channel passing through the properties in survey No.40. If the defendant is allowed to efface the channel, the plaintiff, who is the owner of the wet lands, will be put to loss and hardship. Hence, the suit is filed for permanent injunction. 3. The suit was resisted by the defendant contending that the plaintiff has got no manner of any right in survey No.40 and he also has no right to irrigate the lands through survey No.40. It is the defendant's specific case that the plaintiff never used survey No.40 for irrigating his land and there was no channel in survey No.40 at all. The VAO himself has certified that there is no channel in Survey Nos.40/1 and 40/2. Hence, he prayed for dismissal of the suit. 4. The plaintiff examined himself as P.W.1 before the trial court and marked Exs.A.1 to A.10, while the defendant examined himself as D.W.1 and marked Exs.B.1 to B.7. 5. The VAO himself has certified that there is no channel in Survey Nos.40/1 and 40/2. Hence, he prayed for dismissal of the suit. 4. The plaintiff examined himself as P.W.1 before the trial court and marked Exs.A.1 to A.10, while the defendant examined himself as D.W.1 and marked Exs.B.1 to B.7. 5. Both the Courts below have unanimously held that the plaintiff had not established his case and dismissed the suit. Aggrieved by the same, the appeal is preferred. 6. The following questions of law were formulated at the time of admission: a. Whether the trial court is right in holding that when a public document is denied to be false by another public servant (surveyor), that too in his report without subjecting himself to cross-examination, with regard to existence of a water channel, it would be burden on the part of the plaintiff, that the water channel existed and that he was using it for several years by some other evidence? b. Whether the Trial Court is right in holding that the plaintiff should have proved his case as to existence of water channel, apart from the Field Map Book issued by the Revenue Department of the State Government? c. Whether the Courts below are right in denying the relief of non-effacement of water channel, holding that though Ex.A.5 and Ex.B.1 indicates the existence of a water channel, since the surveyor and the defendant denied the same, as also supported by the Advocate Commissioner's Report and Surveyor's Report had indicated otherwise? d. Whether the Advocate Commissioner's Report and Surveyor's Report, could supersede a public document, especially when the defendant's document also indicate water channel as a boundary; or in other words, whether the Advocate Commissioner's Report and Surveyor's Report has got any evidentiary value, when the FMB sketch issued by the Government and also the defendant documents indicates existence of the water channel? 7. Heard the learned counsel for the appellant and the learned counsel for the respondent. 8. According to Mr.R.Selvakumar, learned counsel for the appellant/plaintiff, the plaintiff became the owner of the lands in Schedule 'A' properties by way of partition and the said lands are all wet lands (nanja lands). It is the case of the plaintiff that there is a water channel, which is now being attempted to be effaced by the defendant in order to stop water flowing to his lands. It is the case of the plaintiff that there is a water channel, which is now being attempted to be effaced by the defendant in order to stop water flowing to his lands. The plaintiff has filed the chitta extract - Ex.A.2, as per which, the plaintiff is owning properties in Survey No.32/5, 33/2, 34/7C and 33/1, 17/2A, 17/2C and 17/4A, which are all nanja lands, besides owning the dry lands also. The plaintiff also has filed Exs.A.3 to 6, which are the sketch with respect to the field survey Nos.38, 39, 40 and 37. In all the said sketches, it can be seen that there is a channel running through several survey numbers. The plaintiff had also produced Ex.A.9, which is equivalent to Ex.B.2 and the said document is the sale deed executed in favour of the defendant - Devaraj. In the description of properties, the suit schedule is described as follows: “TAMIL” 9. The above said title deed describes the northern boundary of the property as lake channel (“TAMIL”)/ The trial court as well as the appellate court had not adverted to the same in its proper perspective. When the defendant was cross-examined in this regard, he has deposed as follows: “TAMIL” 10. Further, D.W.1 has stated in the cross-examination as follows: “TAMIL” 11. From the above admission of the defendant (D.W.1), it is very clear and evident that there is a water channel on the northern side of the defendant's property. However, the defendant has denied the same by stating that it has been wrongly described in Ex.B.2 and he has also not taken any steps to correct the same, though this document is of the year 1991. From the above, it is very clear that the defendant is deliberately trying to efface the channel in order to deny the benefit of water to the plaintiff. 12. Exs.A.3 to 7 are issued by the VAO and also certified by the Deputy Tahsildar, Tiruvallur, in November, 2006, whereas Ex.B.6 has been produced by the defendant, a document which is certified by the Tahsildar, Tiruvallur, on 12.01.2007. In the said document, there is no indication about the channel passing through several lands. A close perusal of Ex.B.6 would go to show that it has been specifically certified that it is not intended for the Court and it is only for own purpose. In the said document, there is no indication about the channel passing through several lands. A close perusal of Ex.B.6 would go to show that it has been specifically certified that it is not intended for the Court and it is only for own purpose. When the VAO as well as the Deputy Tahsildar in November, 2006 had certified that there is a lake running through the survey numbers and passing through survey No.40/2, in Ex.B.6, the sketch issued by the Tahsildar, in January, 2007, the lake has not mentioned. When FMB as well as title deed of the defendant specifically mentioned that there is a lake channel, which is used for irrigation of the lands, the Courts below have failed to consider the same. 13. Besides, the classification of wet and dry land is only based on the water resources available for irrigation. Merely because a report of the Commissioner, who visited the spot at that time could not find the channel, it cannot be considered that there is no water body. If there is existence of water body, the revenue authorities should not allow it to get obliterated by effacing it at any cost. When the defendant himself has shown the northern boundary as a channel, he cannot deny the same by stating that it is a mistake that it was mentioned as channel. Even presuming so, he should have taken immediate steps to get his boundary description rectified at the earliest. Having failed to do so, the defendant has deposed that it is a mistake only in order to deny the legitimate right of the plaintiff to irrigate his lands through the lake channel. When the FMB records and sketch, which are the revenue records go to show the existence of the channel, the Advocate Commissioner's report cannot supersede the public document. When the FMB sketch and other materials are available to prove the existence of the channel, the Courts below had erroneously placed reliance on the report of the Commissioner and dismissed the suit. 13-a. It is well known that tanks, rivers and water channels are all communal properties belonging to public. Effacing the same by way of encroachment is condemnable. When the lake channel is the potential source of irrigation for the plaintiff's land, the same cannot be permitted to be effaced by an individual. 14. 13-a. It is well known that tanks, rivers and water channels are all communal properties belonging to public. Effacing the same by way of encroachment is condemnable. When the lake channel is the potential source of irrigation for the plaintiff's land, the same cannot be permitted to be effaced by an individual. 14. The findings of the appellate court that the existence of the water channel, not only on the date of the filing of the suit, but also till the date of the judgment is not proved by the plaintiff is incorrect, as even when there is no water flow in the channel for some reason, it would not take away the character of the lands, which has already been classified as lake channel. 15. In view of the above discussions, the questions of law are answered in favour of the appellant/plaintiff. Accordingly, the second appeal is allowed decreeing the suit. The concurrent judgments and decrees of the courts below are set aside. No costs. Consequently, pending application is closed.