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2018 DIGILAW 781 (MAD)

Kandasamy Gounder v. Ammapatti Mutharaiyar

2018-02-28

T.RAVINDRAN

body2018
JUDGMENT : Challenge in this second appeal is made to the judgment and decree dated 26.01.2003, passed in A.S.No.6 of 2002, on the file of the Subordinate Court, Udumalpet, confirming the judgment and decree dated 03.01.2002, passed in O.S.No.556 of 1996, on the file of the District Munsif Court, Udumalpet. 2. Parties are referred to as per their rankings in the trial Court. 3. Suit for declaration and mandatory injunction. 4. The case of the plaintiffs, in brief, is that the suit properties described in the plaint belong to the plaintiffs and the plaintiffs have been enjoying the suit properties by rearing trees and the suit properties are the ayacut lands of Amaravathi river and accordingly, being irrigated from the branch channel of Amaravathi river and other than the suit channel, there is no other facilities for irrigating the suit properties and the present suit is laid in respect of the suit channel, which runs on the southern extremity of survey number 443 belonging to the defendants, which turns northwards and then turns westwards on the northern extremity of the defendants land in survey number 443 and thereupon enters into the land belonging to the plaintiffs and goes further west and the defendants developing enmity against the plaintiffs with a view to prevent the plaintiffs from irrigating their lands, destroyed the suit channel as shown in the red colour in the plaint plan and failed to restore the channel, despite the repeated requests of the plaintiffs and left with no other alternative, according to the plaintiffs, they had been necessitated to lay the suit for appropriate reliefs. 5. 5. The case of the defendants, in brief, is that it is false to state that the plaintiffs had been irrigating their lands by utilising the suit channel as described in the plaint and on the other hand, there is no such suit channel running in the defendants properties situated in survey number 443 and the plaintiffs have other sources of irrigation and the plaintiffs are utilising the water drawn from the lands situated to the west of their lands and there is no mammul channel to the plaintiffs' land as claimed and the case of the plaintiffs that the defendants had blocked a portion of the suit channel running on their properties is false and the suit channel has never been in existence at any point of time and further, the defendants in their additional written statement have also disputed that the suit channel has been reflected in the FMBs produced by the plaintiffs at a later stage and the channel said to be in existence in the above said plans were in existence several years ago and on account of its non use for a long period of time, the same had been destroyed in due course of time and therefore, the plaintiffs cannot claim any right in respect of the suit channel which has not been in existence for several years and the suit is therefore liable to be dismissed. 6. The plaintiffs in the reply statement had reiterated the existence of the suit channel as depicted in the plaint plan and according to them, the suit channel has been accordingly reflected in the field measurement book maintained by the Government and it is false to state that the suit channel which was in existence had been subsequently obliterated due to its non use for several years and prayed for the grant of appropriate reliefs in favour of the plaintiffs. 7. In support of the plaintiffs' case PW1 was examined, Exs.A1 to A21 were marked. On the side of the defendants DWs 1 to 3 were examined, Exs.B1 to B3 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 Courts below were pleased to accept the plaintiffs' case and accordingly granted the reliefs in favour of the plaintiffs. 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 Courts below were pleased to accept the plaintiffs' case and accordingly granted the reliefs in favour of the plaintiffs. Aggrieved over the same, the present second appeal has been laid. 9. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration: 1. Whether the Courts below have committed error in decreeing the suits without considering the evidence of PW1 and the commissioner's report Ex.C1 with regard to the physical feature of the land? 2. Whether the Courts below have committed error in decreeing the suit without considering the evidence of DWs 1 & 2? 10. It is not in dispute that the plaintiffs had purchased/acquired the lands comprised in the sale deeds marked as Exs.A1 and A2. It is also not in dispute that the S.F.No.443 situated to the south of the plaintiffs' land belong to the defendants. Now, according to the plaintiffs, they are irrigating their lands only through the suit channel as described in the plaint plan and thus, according to the plaintiffs, the suit channel running on the southern extremity of S.F.No.443 proceeds eastwards and turns to the north and thereafter, runs westwards on the northern extremity of S.F.No.443 and enters into the plaintiffs lands situated in S.F.No.945 and further goes west. It is the case of the plaintiffs that other than the suit channel, there in no other suit channel for irrigation and it is stated that on account of enmity, the defendants destroyed the portion of the suit channel shown in red colour in the plaint plan and inasmuch as the defendants failed to restore the same despite requests, according to the plaintiffs, they had been necessitated to lay the suit for appropriate reliefs. 11. The defendants, on the other hand, contended that no channel as depicted in the plaint plan runs in the area, particularly, the defendants lands in S.F.No.443 and according to them, the plaintiffs have other channels/means to irrigate their lands and in such view of the matter, the plaintiffs cannot lay any claim to the non existing channel and thereby obtain the reliefs sought for and hence, the suit is liable to be dismissed. 12. 12. On a perusal of the sale deeds produced by the plaintiffs marked as Exs.A1 and A2, as rightly determined by the Courts below, it is found that the same depicts the existence of the suit channel and the mammul channel and the irrigational facilities granted to the plaintiffs thereby and therefore, it is found that by way of Exs.A1 and A2, the plaintiffs have established the existence of the suit channel as such. Now, according to the plaintiffs, the defendants have obliterated a portion of the suit channel as shown in red colour in the plaint plan and it is marked as Ex.A3. In this matter, the advocate commissioner has inspected the properties of the parties concerned and filed his report and plan. From the report and plan of the advocate commissioner marked as Exs.C1 and C2, it could be seen that the suit channel had been in existence and obliterated later. To substantiate their case that the suit channel had been in existence over a long period of time, the plaintiffs have marked the F.M.Bs as Exs.A18 to A20 and on a perusal of the same, as rightly determined by the Courts below, it is evident that the suit channel has been in existence as putforth by the plaintiffs and passed to the lands belonging to the plaintiffs over a long period of time and therefore, it is seen that well over a period of time i.e., prior to the institution of the suit, the suit channel had been in existence and accordingly, reflected in the F.M.Bs and in such view of the matter, the case of the defendants that the suit channel had never been in existence, as such, cannot be countenanced. Considering the materials produced by the plaintiffs, marked as Exs.A18 to A20, as above adverted to, the defendants have filed the additional written statement contending that the channel reflected in the above said documents Exs.A18 to A20 though depict the existence of the channel, however, according to them, the said channel had not been put in use for several years and accordingly got obliterated in due course of time and therefore, it is their case that the said channel is not in existence as on date and hence, the plaintiffs cannot claim any claim, right over the non existing channel. On the other hand, as seen from the documents of title placed by the plaintiffs, marked as Exs.A1 and A2 as well as the commissioner's report and plan, it is evident that the channel reflected in Exs.A18 and A20 was in existence over a long period of time and never been obliterated or got obliterated at any time, due to non use as putforth by the defendants and accordingly, it is seen that the said channel continues to be in existence as determined by the Courts below. That apart, it is further found that the plaintiffs have also produced Exs.A6 to A15 photo copies with the negatives, cash bills, marked as Exs.A16 and A17 and on a perusal of the same, it is found that as contended by the plaintiffs, the suit channel has been in existence continuously and only later, it is found that the same had been destroyed in the portion of the defendants land and it could therefore be seen that as rightly found by the Courts below, it is the defendants who had obliterated the suit channel and accordingly only to suppress the existence of the suit channel as claimed by the plaintiffs and amply established with the above said materials, the defendants have laid a false defence as if the suit channel is not in existence. 13. The case of the defendants that the properties belonging to the plaintiffs are only thoppu lands and not nanjai lands and hence, there is no need for any irrigation as such and hence, according to them, the case of the plaintiffs that they had been irrigating the lands using the said channel should not be accepted. Further, according to the defendants, the plaintiffs have other means to irrigate their lands. However, as regards the case of the defendants that the plaintiffs have other means to irrigate their lands, the same is not supported by acceptable materials. Further, according to the defendants, the plaintiffs have other means to irrigate their lands. However, as regards the case of the defendants that the plaintiffs have other means to irrigate their lands, the same is not supported by acceptable materials. Be that as it may, when it is found that the plaintiffs and their predecessors in interest had been using the suit channel which is a branch channel of Amaravathi river, when admittedly the plaintiffs lands are the ayacut lands of Amaravathi river and when the existence of the suit channel running to the plaintiffs lands through the defendants lands as shown in the plaint plan has been established by the plaintiffs through the materials above discussed and when it is further found that the lands of the plaintiffs and the defendants earlier belonged to the same family once, it is found that accordingly the predecessors in interest of the respective parties had been using the suit channel for the purpose of irrigating their lands and it is thus found that on account of enmity between the parties, the suit channel running in the portion of the defendants' land have come to be destroyed by the defendants and in such view of the matter, it is found that the Courts below have rightly found acceptance with the plaintiffs case and accordingly granted the reliefs accordingly. 14. In the light of the above discussions, in my considered opinion, there is no substantial question of law involved in the second appeal. It is found that the Courts below have considered the evidence placed on record, both oral and documentary, in the right perspective and on sound reasonings and conclusions, both factual and legal wise, accepted the plaintiffs' case and decreed the suit in favour of the plaintiffs. The same do not warrant any interference by this Court and accordingly, the substantial questions of law formulated in this second appeal are answered in favour of the plaintiffs and against the defendants. 15. At the end, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.