Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 2403 (MAD)

Elumalai v. Ramani

2018-08-03

T.RAVINDRAN

body2018
JUDGMENT : In this Second Appeal, challenge is made to the judgment and decree dated 22.07.2204 passed in A.S.No.102 of 2003 on the file of the Principal Subordinate Court, Thindivanam reversing the judgment and decree dated 07.07.2003 passed in O.S.No.379 of 2000 on the file of the Principal District Munsif Court, Thindivanam. 2. The Second Appeal has been admitted on the following substantial questions of law. (a) Whether the Lower Appellate Court is right in law in rejecting the appellant's plea of irrevocable licence having the right to draw water from the well situated in the land of Appellant at Asoor through the suit PVC pump lane laid under the ground as shown AB 15' length line in the plaint sketch to cultivate his lands on the southern side of AB line not adverting the provision of Section 52,60 of the Easement Act 1882? (b) Whether the Lower Appellate Court is right in law in holding that the suit is bad for non-joinder of necessary parties, while the adjacent owners of land have not caused any disturbance to the enjoyment of right to draw water thro' the underground PVC Pump by the Appellant? (c) Whether the Lower Appellate Court right in law in rejecting the Commissioner's report Ex.A1 and Plan A2 in which the Commissioner has stated specifically that the 15' length pipe was demolished and there was a newly dug pit nearby? (d) Whether the Lower Appellate Court is right in law in holding that the suit is barred by limitation overlooking the facts that the 15' pipe Lane was demolished on 14-09-2000 and the suit for declaration, permanent injunction and mandatory injunction was filed on 06-11-2000? 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is not necessary to dwell into the facts of the case in detail. 4. 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is not necessary to dwell into the facts of the case in detail. 4. Suffice to state that the plaintiff has laid the suit against the defendants for the relief of declaration that he is entitled to draw water through “AB” pipeline as detailed in the plaint plan, for irrigating his lands by way of irrevocable license and for the relief of permanent injunction restraining the defendants from interfering with his right to draw the water through the pipeline as abovestated and also for the relief of mandatory injunction to direct the defendants to restore the demolished pipeline shown in the “AB” portion of the plaint plan to the original position and for other appropriate reliefs. 5. On a perusal of the plaint averments, it is found that the plaintiff claims the reliefs sought for, on the footing that the defendants and the other adjacent land owners had granted license to the plaintiff, to lay the pipeline for enabling the plaintiff to draw water from his well through various Survey Nos. as detailed in the plaint plan and thereby sought to enforce the said right. 6. The defendants resisted the claim of the plaintiff contending that no license had been granted to the plaintiff to lay the pipeline as put forth in the plaint, particularly, the defendants had not granted any license to the plaintiff to lay the pipeline underneath their lands situated in Survey No.109/5 and they had vehemently denied that the plaintiff had been taking water through the pipeline in their lands in Survey No.109/5 and according to the defendants, at no point of time, the plaintiff had taken the water through the pipeline underneath their lands and also contended that the adjacent land owners had also not granted any license to the plaintiff to lay the underground pipeline as claimed in the plaint and therefore, it is the case of the defendants that there is no question of the defendants demolishing the pipeline alleged to have been put up underneath their lands and hence according to the defendants, the plaintiff has no cause of action to institute the suit and the suit is liable to be dismissed. 7. 7. On the basis of the abovesaid pleadings put forth by the respective parties, it is found that, on the side of the plaintiff, P.Ws.1 and 2 were examined. Exs.A1 to A31 were marked. On the side of the defendants, D.Ws.1 and 2 were marked. Ex.B1 to B9 were marked. Exs.C1 and C2 were also marked. 8. 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. The first appellate court, on an appreciation of the materials placed on record was pleased to setaside the judgment and decree of the trial court and thereby, way of allowing the appeal preferred by the defendants, dismissed the suit laid by the plaintiff. Impugning the same, the present Second Appeal has been laid. 9. The plaintiff has based the suit on the footing that he had obtained license from the defendants as well as the other adjacent land owners for laying the pipeline underneath their respective lands and thereby drawing water from his well for the purpose of irrigating his lands as detailed in the plaint and inasmuch as the defendants with an ulterior object, demolished the pipeline passing through their lands in Survey No.109/5, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. 10. The defendants have vehemently disputed the claim of the plaintiff that he had laid the pipeline particularly underneath their lands in Survey No.109/5 on the basis of the license granted by them and also disputed the claim of the plaintiff that he had laid the pipeline underneath the lands of the adjacent land owners as detailed in the plaint. 11. Despite the above pleas projected by the defendants, the plaintiff had not endeavored to implead the other land owners, who are alleged to have granted the license to the plaintiff to lay the pipeline underneath their lands for enabling the plaintiff to draw water form his well for the purpose of irrigating his lands. 11. Despite the above pleas projected by the defendants, the plaintiff had not endeavored to implead the other land owners, who are alleged to have granted the license to the plaintiff to lay the pipeline underneath their lands for enabling the plaintiff to draw water form his well for the purpose of irrigating his lands. However, it is contended by the plaintiff that inasmuch as the other neighboring land owners, under whose lands the pipeline runs, had not raised any objection to the plaintiff in drawing water from his well through the pipeline, the other land owners are not necessarily needed to be added as parties to the suit nor be examined in support of the plaintiff's case. But, the plaintiff having sought the relief of declaration and when the plaintiff's case is that, the alleged pipeline as detailed in the plaint plan passes through the lands of various persons as detailed in the plaint plan from his well, as rightly put forth by the defendants and as determined by the first appellate court, the plaintiff should have endeavored to implead all the land owners under whose lands the alleged pipe line passes through. Atleast the plaintiff should have endeavored to examine the adjacent land owners to establish that the said land owners had granted license to the plaintiff for putting the pipeline underneath their respective lands for the purpose of enabling the plaintiff to draw water from his well to irrigate his lands. However, the plaintiff has neither impleaded his adjacent land owners nor examined them to buttress his case. When the plaintiff bases his claim on the strength of the alleged license said to have been granted by the defendants and the other adjacent land owners for enabling him to put up the pipeline, the plaintiff should have atleast examined the other adjacent land owners to prove that they had granted the license to the plaintiff to put up the pipeline as pleaded. In addition to that the plaintiff examined as P.W.1 during cross examination had admitted clearly that it is correct to state that the defendants had not granted permission to him to lay the pipeline and again reiterated that the defendants had not granted any license to him to put up the pipeline. In addition to that the plaintiff examined as P.W.1 during cross examination had admitted clearly that it is correct to state that the defendants had not granted permission to him to lay the pipeline and again reiterated that the defendants had not granted any license to him to put up the pipeline. When such is the evidence of the plaintiff, and on the basis of the same, it is found that the defendants had not granted any license or permission to the plaintiff to put up the pipeline, particularly, underneath their lands in Survey No.109/5, it is found that the very basis of the plaintiff's case that the defendants had granted him the permission to put up the underneath pipeline in the lands belonging to the defendants falls to the ground. As above seen, the plaintiff has not endeavoured to examine the other neighboring land owners who are said to have granted the license/permission to the plaintiff to put up the underneath pipeline in their respective lands. Thus, it is found that there is absolutely no material worth acceptance on the part of the plaintiff as to the alleged license said to have been given by the defendants and the adjacent land owners for enabling the plaintiff to put up the pipeline ad detailed in the plaint plan. In addition to that, the plaintiff has not established as to when he had laid the pipeline and through whose lands the pipeline passes through in detail in the plaint plan. Such being the position, it is evident that as determined by the first appellate court, the plaintiff's case of obtaining revocable license from the defendants to lay the pipeline underneath the lands of the defendants cannot be accepted. 12. The well from which the plaintiff seeks to draw water through the alleged pipeline is claimed to have been acquired by the plaintiff in the year 1985 i.e., 22.07.1985 by way of Ex.A24. However, the plaintiff during the cross examination would claim that the pipeline had been laid even during the year 1982 itself. Similarly P.W.2 examined on behalf of the plaintiff would claim that the pipeline had been laid by the plaintiff 25 years ago for the purpose of drawing water, i.e., according to P.W.2, the pipeline had been in existence right from 1979 onwards. Similarly P.W.2 examined on behalf of the plaintiff would claim that the pipeline had been laid by the plaintiff 25 years ago for the purpose of drawing water, i.e., according to P.W.2, the pipeline had been in existence right from 1979 onwards. When the alleged well from/through which the plaintiff seeks to draw water is found to have been purchased by the plaintiff in the year 1985, the evidence adduced by the plaintiff that even prior to the same, he had laid the pipeline through the lands of the neighboring land owners and the defendants as such cannot be believed and accepted. 13. In this matter, the Advocate Commissioner had inspected the properties and filed his report and plan marked as Exs.C1 and C2. No doubt, the Advocate Commissioner in his report and plan would claim that the pipeline is found to have been demolished/broken in the property belonging to the defendants and accordingly, pointing to the same, it is contended by the plaintiff that the defendants have demolished the pipeline passing through their lands in order to deprive the plaintiff from irrigating his lands. As rightly determined by the first appellate court, the Advocate Commissioner seems to have observed that the pipeline passing through the defendants' lands had been demolished, on the footing that a new pit had been dug by the defendants in their lands. However, when the Advocate Commissioner had not endeavored to ascertain as to whether water had been flowing from the well through the pipeline laid underneath the lands of the adjacent land owners as claimed by the plaintiff and not ascertained as to where actually the water flow had stopped, merely on noting that the pipeline underneath the defendants' lands is not found, it is seen that on finding that the defendants had dug a new pit in their lands, on that premise, the Advocate Commissioner has filed his report as if the pipeline running through the defendants' lands had been demolished. But, when the plaintiff himself has admitted that he had not obtained any license / permission from the defendants to lay the pipeline underneath their lands, the report of the Advocate Commissioner that the pipeline running underneath the defendants' lands found to be demolished, as such, cannot be believed and accepted readily in support of the plaintiff's case. 14. But, when the plaintiff himself has admitted that he had not obtained any license / permission from the defendants to lay the pipeline underneath their lands, the report of the Advocate Commissioner that the pipeline running underneath the defendants' lands found to be demolished, as such, cannot be believed and accepted readily in support of the plaintiff's case. 14. The plaintiff would claim that the defendants had demolished the alleged pipeline on 14.09.2000 and accordingly, he has been necessitated to lay the suit for appropriate reliefs. However, with reference to the abovesaid claim of the plaintiff, there is no proper follow up action on the part of the plaintiff. The plaintiff has not placed any acceptable materials to show that he had preferred any complaint against the defendants in their action of demolishing the alleged pipeline on 14.09.2000 as put forth by him and hence the same would go to show that the abovesaid case of the plaintiff is not a true one. Atleast, the plaintiff would have endeavored to convene a local Panchayath, if the defendants had actually demolished the pipeline on 14.09.2000 as put forth by him. In such view of the matter, a rightly determined by the first appellate court, the case of the plaintiff that the defendants had demolished the alleged pipeline passing through the lands belonging to the defendants on 14.09.2000 is found to be unacceptable and there is no reliable material pointing to the same. Accordingly, it is found by the first appellate court that the plaintiff has no cause of action to institute the suit. 15. Accordingly, it is found by the first appellate court that the plaintiff has no cause of action to institute the suit. 15. When the plaintiff has based his lis on the plea of laying the pipeline on the ground of irrevocable license said to have been obtained from the defendants and the other land owners and when the abovesaid case of the plaintiff is not proved as above seen and when the plaintiff has not endeavored to implead the other adjacent land owners nor examined them in support of his case, to establish that he had obtained any license from them to lay the pipeline as put forth and when the plea of the plaintiff that he had laid the pipeline as projected by him is found to be inconsistent as above-discussed and when from the Advocate Commissioner's report and plan, we cannot infer that the defendants had demolished the alleged pipeline said to have been put up by the plaintiff, based on the alleged revocable license said to have been granted by the defendants and when it is further seen that the plaintiff has not initiated any action against the defendants as regards their demolition of the pipeline on 14.09.2000 as found by the first appellate court, it is found that the first appellate court has correctly analysed the materials placed on record in the proper perspective, both factually as well as legally and thereby discountenanced the plaintiff's case. In such view of the matter, the judgment and decree of the first appellate court do not warrant any interference. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff. 16. In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.