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2021 DIGILAW 3183 (MAD)

Ramachandran v. Sagappa Thever (died)

2021-11-18

R.VIJAYAKUMAR

body2021
JUDGMENT : (Prayer: Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree made in A.S.No 150 of 1998 dated 04.04.2000 passed by the learned Principal Subordinate Judge, Tenkasi partly allowed and partly dismissed in O.S.No.213 of 1994 dated 14.09.1998 passed by the learned Principal District Munsif Court, Sankarankovil.) 1. The unsuccessful first defendant before the Court below is the appellant herein. 2. The plaintiff/first respondent in the appeal had filed O.S.No.213 of 1994 before the Principal District Munsif Court, Sankarankovil for the relief of declaration that he is entitled to 4/15th share in the suit Well. He further prayed for a decree of permanent injunction restraining the first defendant from in any way interfering with his possession of the suit schedule Well and for a mandatory injunction as against the authorities of the electricity department namely D2 to D4 to provide service connection to the suit Well. The suit was decreed as prayed for by the trial Court. The first defendant filed A.S.No.150 of 1998 before the Principal Subordinate Judge, Tenkasi. The learned Subordinate Judge partly allowed the appeal confirming the decree for declaration of 4/15th share and permanent injunction decree, but dismissed the suit with regard to the prayer for mandatory injunction. Aggrieved over the same, the present second appeal has been filed by the first defendant. 3. At the time of admission, the following substantial questions of law were framed: 1. Whether the courts below misdirected themselves and erred in law in throwing the burden of proof on the first defendant to prove that he is entitled to the suit well? 2. Whether the Courts below erred in law in placing reliance on patta proceedings, which patta proceedings took place pending the suit and when the civil Court is competent to decide all the disputed questions of title as well as possession? 4. It is the case of the plaintiff that he had purchased 4/15th share in the suit schedule Well under Exhibits A1 and A2 sale deeds dated 19.04.1998 and 13.12.1988. He further contended that the balance share namely 11/15th belongs to the first defendant. Though the plaintiff applied for service connection to the suit Well, the authority had not responded. But, on the other hand, they have given service connection to the first defendant. He further contended that the balance share namely 11/15th belongs to the first defendant. Though the plaintiff applied for service connection to the suit Well, the authority had not responded. But, on the other hand, they have given service connection to the first defendant. Based upon the said service connection, the first defendant is now disputing the share of the plaintiff in the suit Well and he is not permitting the plaintiff to draw water from the suit Well. Based on the said allegation, the suit came to be filed. 5. Per contra, the learned counsel for the first defendant had disputed the share of the plaintiff in the Well. The first defendant had contended that he had given application for providing service connection and after verifying the documents, service connection was granted to him to the suit Well on 31.05.1994. The first defendant further contended that he is entitled to the Well exclusively based upon the sale deeds. 6. The trial Court after going through Exhibits A1 and A2, has given a specific finding that the plaintiff is entitled to 4/15th share in the suit Well. The trial Court has also given a finding that despite giving application, the request of the plaintiff for providing service connection has not been considered by the department. However, the trial Court has not given any finding with regard to the allegations and countered allegation for granting of permanent injunction decree. 7. The trial Court proceeded to decree the suit as prayed for granting a decree for declaration of 4/15th share in favour of the plaintiff and also granted a decree for permanent injunction restraining the first defendant from interfering with the enjoyment of the suit Well by the plaintiff. The trial Court further granted a decree for mandatory injunction as against the authorities of the Electricity Department to provide service connection to the plaintiff subject to the rules and seniority. 8. The First Appellate Court confirmed the findings with regard to 4/15th share of the plaintiff. But proceeded to hold that there is no necessity to decide the issue regarding to permanent injunction. The First Appellate Court also decided that there is no necessity for a decree for mandatory injunction, since the authorities of the electricity department have agreed to grant a separate service connection to the plaintiff. But proceeded to hold that there is no necessity to decide the issue regarding to permanent injunction. The First Appellate Court also decided that there is no necessity for a decree for mandatory injunction, since the authorities of the electricity department have agreed to grant a separate service connection to the plaintiff. However, while the decree was drafted in the First Appellate Court, the decree for permanent injunction was granted and as regards the decree for mandatory injunction, it was reversed. To summarise, the declaration decree for 4/15th share and permanent injunction decree were confirmed. But the decree was reversed with regard to mandatory injunction. 9. Aggrieved over the same, the present second appeal has been preferred. 10. Though in the written statement, the first defendant has disputed the share of the plaintiff over the suit Well, during the arguments, the learned counsel for the appellant submitted that the appellant/first defendant concedes that the plaintiff is having 4/15th share in the suit Well and the first defendant is having 11/15th share in the suit Well. However, the learned counsel also contended that once the Court below have found that the defendant is also a co-sharer in the Well, a decree for permanent injunction should not have been granted as against the first defendant. He further contended that any share in the suit Well can be used only for the properties connected with the Well and water from the suit Well cannot be used for other properties. According to the first defendant, the plaintiff has not provided the details of the properties in the suit schedule which are going to be irrigated by the suit Well. 11. The learned counsel for the appellant cited the judgment of this Court in 1999 3 MLJ Page 746 before the First Appellate Court to convince the First Appellate Court. Since the suit schedule does not consist of the properties to be irrigated by the suit Well, even a declaratory decree for the share in the Well cannot be granted. 12. The learned counsel for the respondent/plaintiff contended that there is a concurrent finding with regard to the decree for declaration of his 4/15th share in the suit Well. He further contended that there is no illegality or perversity committed by the Courts below in granting such a decree for declaration. 12. The learned counsel for the respondent/plaintiff contended that there is a concurrent finding with regard to the decree for declaration of his 4/15th share in the suit Well. He further contended that there is no illegality or perversity committed by the Courts below in granting such a decree for declaration. He further contended that since the first defendant had disputed the share and raised objections to the electricity department for granting service connection in his favour, he was forced to seek a decree of permanent injunction as against the first defendant and for mandatory injunction as against the authority of the electricity department to provide service connection. 13. The counsel for the electricity board pointed out regulation 29(ii)(c) of Tamil Nadu Electricity Supply Code that provides for granting two independent service connection to the co-owners of a Well if the land holding of each co-owner exceeds 0.5 acre. 14. In the present case, admittedly, the plaintiff owes around one acre based on sale deeds under Exhibits A1 and A2. The first defendant is the owner of 3 acres. Hence, there will not be any impediment for the respondent electricity board to grant separate service connection to the plaintiff subject to the rules and seniority. The First Appellate court has reversed the decree seeking mandatory injunction as against the authorities of the electricity board to provide service connection. This portion of the decree has not been challenged by the plaintiff. Hence, this Court is not in a position to reverse that portion of the decree. However, the plaintiff is at liberty to approach the department to get separate agricultural service connection in his name, subject to the rules and seniority. 15. Once both the Courts have come to the conclusion that the plaintiff is having 4/15th share and the first defendant is having 11/15th share in the suit Well, there cannot be any blanket permanent injunction decree as against the first defendant who is also a co-owner of the Well. Hence, the decree for permanent injunction granted by the trial Court and confirmed by the First Appellate Court requires to be interfered with in the second appeal. Hence, the decree for permanent injunction granted by the trial Court and confirmed by the First Appellate Court requires to be interfered with in the second appeal. The substantial questions of law framed by this Court at the time of admission are answered in favour of the appellant and the second appeal is partly allowed and the decree passed by the trial Court and the First Appellate court are modified to the following effect; (i) the decree for declaration of the plaintiff's 4/15th share in the suit Well is confirmed. (ii) the decree of permanent injunction granted by the trial Court and confirmed by the First Appellate Court are reversed and the suit is dismissed with regard to the prayer for permanent injunction. (iii) the plaintiff and the first defendant shall be entitled to share the water from the suit Well on the rotation basis. The plaintiff shall be entitled to draw water for two days namely on Monday and Thursday and the first defendant will be entitled to draw water on the remaining days. (iv) both the parties shall be entitled to use the water from the suit Well only for the properties located in Survey.No.465 or its Sub-division in Echchanda Village, Sankarankoil Taluk, Tirunelveli District. 16. Accordingly, this Second Appeal is partly allowed. No costs. Consequently, connected miscellaneous petition is closed.