Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 1496 (MAD)

Chezhian v. Thamizhselvan

2021-04-27

P.T.ASHA

body2021
JUDGMENT : The defendant is the appellant before this Court. The Second Appeal arises against the judgment and decree in A.S.No.82 of 2005 in and by which the learned Subordinate Judge, Kalllakurchi had modified the judgement and decree of the Trail Court in O.S.No.373 of 2000 on the file of the I Additional District Munsif, Kallakurichi. 2. The suit O.S.No.373 of 2000 was filed by the respondent herein for the following reliefs: “(a) for declaration of his title to the suit properties; (b) for permanent injunction to restrain the defendant, his men and agents from in any manner interfering with the plaintiff's possession and enjoyment of the suit properties; b-(b) for permanent injunction to restrain the defendant from the well in suit item 2 to lands not irrigable from it. (c) for costs of the suit.” 3. The properties, subject matter of the suit, are as follows: (1) Dry R.S.48/3 – 0.16 cents – Asst. Rs.).36p. (2) Wet R.S. 48/4- 0.43 cents – Asst. Rs.3.57 p. with the western 5/7 share in the well therein and the entire 3.HP., Electric motor and pumpset therein and the usual channel rights. (3) Wet R.S. 47/4- 0.58 cents in this to the north of Eliyathur limits and Kaliyan's land, to the west of the road, to the south of the remaining extent and to the east of plaintiff's land in this 0.29 cents. Asst. Rs.2.41 p. Plaintiff's case 4. It was the case of the plaintiff that the schedule mentioned property belongs absolutely to the plaintiff and he has been in possession and enjoyment of the same. It was his case that item 1 of the property was assigned to him under D.K.T No.257/87 issued by the Special Tahsildar, Land Assignment dated 07.11.1977. The second item of the property belonged to the grandfather of the plaintiff one Velmayil Pillai and his brother Subbaroya Pillai. The two brothers had executed a Will dated 07.07.1977 bequeathing the second item on the plaintiff. The said will was a registered Will. On their death, the plaintiff became the absolute owner of the suit second item of the property. It is his case that there is a well in the second item of the property, which has been divided into two halves with a middle wall. The plaintiff had installed an Electric motor and pumpset in the Western half of the well. 5. It is his case that there is a well in the second item of the property, which has been divided into two halves with a middle wall. The plaintiff had installed an Electric motor and pumpset in the Western half of the well. 5. As regards the 3rd item of the property, it is the contention of the plaintiff that he had purchased it from Periyasami and another under a registered sale deed dated 09.06.1993. 6. Under the U.D.R Scheme, Patta was also assigned to the plaintiff. The plaintiff would submit that he has been cultivating his lands with the water drawn from the well in the suit second item through Electric Motor and Pumpset and thus by open, continuous and peaceful possession of the suit properties for over the statutory period, his title is also perfected by way of adverse possession. 7. The defendant, who is a neighboring land owner and having no interest or right in the suit schedule property, had lodged a caveat dated 17.04.2000 and since then he has been interfering with the plaintiff's possession and use of the suit properties. He was also attempting to obliterate the channel emanating from the well in the suit second item, so as to interrupt the cultivation. Therefore, the plaintiff was constrained to file the suit originally for a declaration and permanent injunction. 8. The plaintiff would further submit that the defendant was trying to take water from the well in the suit second item, which he is not entitled to irrigate from the suit well. Written Statement filed by the defendants: 9. The defendant had filed a written statement inter alia contending that in the suit second item of property, the plaintiff is entitled to half of 5 cents and the defendant is also entitled to a similar extent. The defendant had purchased a half share in the well situated in the second item of the property under the sale deeds dated 03.01.1974 and 23.11.1993. He would submit that the rights in the well had not been partitioned. He admits that there are two motors in the suit second item of property. 10. He would submit that the plaintiff had purchased a half share in the second item of property but could not demand that he is entitled to the western half. He would submit that the rights in the well had not been partitioned. He admits that there are two motors in the suit second item of property. 10. He would submit that the plaintiff had purchased a half share in the second item of property but could not demand that he is entitled to the western half. He would submit that with reference to the lands comprised in S.No.48/4b, the same has been sub-divided and a joint patta bearing No.535 has been issued both to the plaintiff and the defendant. The first item of the property does not exclusively belong to the plaintiff. 11. The defendant would submit that there is no cause of action for the plaintiff and therefore the suit deserves to be dismissed. Trail Court: 12. Before the Trial Court namely the I Additional District Munsif, Kallakurichi, the plaintiff had examined himself as P.W.1 and one Srinivasan was examined as P.W.2 and Exs. A1 to A6 were marked on the side of the plaintiff. The defendant had examined himself as D.W.1 and marked Exs.B1 to B3. 13. The learned Trial Judge, on perusing the evidence, oral and documentary, had decreed the suit as prayed for. 14. Aggrieved by this judgment and decree, the defendant had filed A.S.No.82 of 2005 on the file of the Subordinate Judge, Kallakurichi. The learned Subordinate Judge by judgment and decree dated 31.08.2007 modified the judgment and decree of the Trial Court by confirming the decree for declaration of title with reference to items 1 and 3 of the suit properties. 15. As regards second item, the learned Subordinate Judge declared the plaintiff's title to the suit second item, excluding the defendant's undivided half share in the well and the Kavalai pathai, Mamool Pathiam and the half share in the well situated thereon. 16. The learned Judge also granted a permanent injunction restraining the defendant from irrigating the lands situate in S.No.48/8, 48/9 and 48/10 and the lands situated to the rest eastern side of the road from the suit well situated in item No.2. 17. Aggrieved by the said judgment and decree, the defendant has filed the above Second Appeal. Question of law 18. The following substantial questions of law were raised for consideration on 26.06.2009. (i) Whether the judgment of the Lower Appellate Court is vitiated by perversity when there is no such admission of DW1 in respect of Survey Nos. 17. Aggrieved by the said judgment and decree, the defendant has filed the above Second Appeal. Question of law 18. The following substantial questions of law were raised for consideration on 26.06.2009. (i) Whether the judgment of the Lower Appellate Court is vitiated by perversity when there is no such admission of DW1 in respect of Survey Nos. 48/8, 48./9 and 48/10? (ii) Whether the judgment of the Lower Appellate Court suffers from infirmity since there was non-consideration of material evidence on record viz title deeds of appellant and oral testimony of witnesses? 19. Though the respondent/plaintiff was served, he has not chosen to appear before this Court, either in person or though Pleader. Submission: 20. Mr. S. Sounthar, learned counsel appearing on behalf of the defendant/ appellant would submit that even in the written statement filed by the defendant, the defendant had admitted that the plaintiff is entitled to a half share in the suit First item of property. 21. He would argue that the Courts below have not appreciated Exs.B1 and B2, the sale deeds under which the defendant had purchased the properties, which would go to show that the plaintiff is not the absolute owner of suit properties. By reason of these two sale deeds, the plaintiff is entitled to a half share in the suit well. 22. He would further submit that even in the written statement filed, the defendant has not disputed the plaintiff's right to the first and third items of the suit schedule property; however it is the defendant's case that he also has a half share in the suit second item of peopery and that the said right is an undivided right and therefore the plaintiff cannot claim exclusive right to the western portion. 23. He would further submit that the Lower appellate court has grossly misunderstood the evidence of D.W.1 in his cross examination and by reason of which the Lower Appellate Court had injuncted the defendant from irrigating the lands situated at S.Nos. 48/8, 48/9 and 48/10 from the well. This right is available to him under the sale deed. 24. He would draw the attention of the court to the evidence of D.W.1 which has been misconstrued by the Lower Appellate Court. 25. 48/8, 48/9 and 48/10 from the well. This right is available to him under the sale deed. 24. He would draw the attention of the court to the evidence of D.W.1 which has been misconstrued by the Lower Appellate Court. 25. In answer to a question, D.W.1 would admit that the second item of property has been bequeathed to the plaintiff under a registered Will by Velmayil Pillai and his brother Subburaya Pillai. 26. The witness had admitted that S.Nos.48/8, 9 and 10 were his paddy lands and these lands were situated west of the Tar Road. Beyond the Tar road, the lands purchased by him from one Muthal, Thaga and others were situated. These persons had no right to the suit well. The Learned Subordinate Judge has totally misunderstood the deposition of the witness and has concluded that D.W.1 has admitted that he has no right to irrigate the lands situate in S. Nos. 48/8, 9 and 10 from the suit well. 27. The learned counsel would submit that under Ex.B1, the defendant has been given a right of 1/6th share in the suit-well. Under Ex.B2, the defendant had purchased the lands situated in S.Nos.48/8, 48/9 and 48/10 along with 1/3rd share in the suit-well in S.No.48/4 which is the second item of the suit property. 28. He would therefore contend that under Ex.B2 a right has been given to irrigate the lands situate in S.Nos. 48/8, 48/9 and 48/10 from the suit well and by reason of not properly comprehending the deposition of D.W.1, the learned Judge has proceeded to modify the judgment and decree of the Trail Court by granting an injunction restraining the defendant from irrigating these lands from the well, which is the second item of the suit schedule property. 29. Heard the counsel and perused the records. Discussion: 30. On the perusal of the records and the deposition, it is seen that the defendant as D.W.1 has clearly answered that he was not entitled to irrigate the lands to the east of the tar road from the suit second item well and not that he cannot irrigate the lands comprised in S.Nos. 48/8 to 48/10. It would be useful to extract the evidence of D.W.1 in this regard. OTHER LANGUAGE 31. 48/8 to 48/10. It would be useful to extract the evidence of D.W.1 in this regard. OTHER LANGUAGE 31. The evidence of D.W.1 is that he is not entitled to draw water to the lands he had purchased from Thangaraj and others which lies to the east of the road. The lands in S.Nos.48/8, 9, and 10 lies to the west of the road. The right to irrigate the lands in S.Nos.48/8,9 and 10 is expressly given to the defendant under Ex.B2. 32. The judgment and decree of the learned Subordinate Judge therefore is erroneous insofar as it relates to the third clause of its decree restraining the defendant from irrigating the lands situated in S.Nos. 48/8 to 48/10 and accordingly the same is set aside to that extent alone and the questions of law are answered in favour of the appellant and the Second Appeal is partly allowed. No costs.