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2018 DIGILAW 4183 (MAD)

Rasu v. Tahsildar, Avidayarkovil and Taluk, Pudukkottai District

2018-11-12

K.K.SASIDHARAN, P.D.AUDIKESAVALU

body2018
JUDGMENT : P.D. Audikesavalu, J. The Petitioners in this Writ Petition hail from Perungulam Village of Avidayarkovil Taluk of Pudukottai District, while the Fourth to Seventh Respondents are residents of Peranoor Village of Avidayarkovil Taluk in Pudukottai District. Certain villagers of Peranoor Village in representative capacity had instituted the suit bearing O.S. No. 132 of 1993 in the District Munsif Court, Aranthangi against the villagers of Perungulam Village regarding their entitlement to receive surplus water from Ponpethy Lake to the Lake in Peranoor Village. The villagers of Perungulam had made a counter claim in that suit for their entitlement to receive surplus water from Ponpethy Lake to the Lake in Perungulam. After full fledged trial, by judgment dated 27.01.2006 in that suit, the claim of the villagers of the Peranoor was dismissed and the counter claim of the villagers of Perungulam was decreed and that decision was confirmed in appeal by judgment dated 21.11.2007 in A.S. Nos. 124 and 125 of 2006 passed by Sub Court, Pudukkottai. According to the Petitioners, the Government of Tamil Nadu, who was the Fifth Defendant in that suit, had supported the case of the Villagers of Perungulam and no further appeal had been preferred against their decision, which has attained finality. It is further contended that on the representation of the villagers of Perungulam, the Public Works Department of the Government of Tamil Nadu had taken steps to form a water channel from Ponpethy Lake to the Lake in Perungulam and while the same was in progress, the villagers of Peranoor stopped the work in August 2009 and the Tahsildar, Avidayarkovil Taluk and the Sub-Inspector of Police, Avidayarkovil Police Station, who are the First and Second Respondents respectively, intervened in the matter and convened a peace meeting on 04.09.2009 and in the minutes had recorded that the villagers of Perungulam should get an order from the Settlement Officer and Director of Survey and Settlement for formation of the water channel and they were required to remove the water channel that had been put up by them without permission. Aggrieved thereby, the Petitioners protested against the said decision of the First Respondent and have impeached the same in this Writ Petition and have sought for a direction to implement the aforesaid decision of the Civil Court in the matter. 2. We have heard Mr. N. Balakrishnan, learned Counsel for the Petitioners and Mr. Aggrieved thereby, the Petitioners protested against the said decision of the First Respondent and have impeached the same in this Writ Petition and have sought for a direction to implement the aforesaid decision of the Civil Court in the matter. 2. We have heard Mr. N. Balakrishnan, learned Counsel for the Petitioners and Mr. A.K. Baskara Pandian, learned Special Government Pleader for First to Third Respondents. The Writ Petition has been dismissed as against the Fourth to Seventh Respondents by order dated 21.10.2016, as steps had not been taken by the Petitioners to serve notice on them. 3. When this Court pointed out that an effective remedy is available to execute the decree of the Civil Court by initiating proceedings under Order XXI of the Code of Civil Procedure, 1908, learned Counsel appearing for the Petitioners fairly accepted that it would not be necessary for this Court to issue a Writ of Mandamus for implementing the same as sought in the Writ Petition and that the Petitioners would work out their rights in that regard in the aforesaid manner. However, we are in agreement with the submission made by the learned Counsel for the Petitioners that the First Respondent had erred in having directed the villagers of Perungulam to obtain an order from the Settlement Officer and Director of Survey and Development for creating a water channel from Ponpethy Lake to the Lake in Perungulam Village, when the dispute in that regard had already been finally adjudicated by the Civil Court after hearing the rival parties and the State of Tamil Nadu was also a party to that litigation and is thereby bound by its outcome. Further, we find that the question as to whether the water channel from Ponpethy Lake to the Lake in Perungulam Village had been put up by Public Works Department of the Government of Tamil Nadu or by the villagers of Perungulam, is a disputed question of fact, which cannot be conveniently decided in a Writ Petition and the parties have to be relegated to agitate the same in the proceedings for execution of the decree of the Civil Court. 4. 4. Viewed from this perspective, the impugned order dated 04.09.2009 passed by the First Respondent is set aside and the judgment and decree dated 27.01.2006 in O.S. No. 132 of 1993 passed by the District Munsif Court, Aranthangi, as confirmed in judgment and decree dated 21.11.2007 in A.S. Nos. 124 and 125 of 2006 passed by the Sub Court, Pudukkottai, is left open to be executed by the parties concerned through proceedings under Order XXI of the Code of Civil Procedure, 1908, in the concerned Court in accordance with law, uninhibited and uninfluenced by the observations made in this order. We also hasten to add by way of clarification here that having regard to the nature of this order now passed, the Fourth to Seventh Respondents against whom the Writ Petition has already been dismissed for failure of the Petitioners to serve notice on them, cannot be prejudiced by the same in any manner. 5. In the upshot, the Writ Petition is disposed of in the aforesaid terms. Consequently, the connected miscellaneous petitions are closed. No Costs.