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2022 DIGILAW 32 (MAD)

R. Pappakani v. Ponnaiya Nadar

2022-01-04

R.VIJAYAKUMAR

body2022
JUDGMENT : Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree of the Subordinate Court, Sankarankoil in A.S.No.69 of 2002, dated 18.12.2002 in which the learned Subordinate Court has reversed the judgment and decree of the District Munsif Court, Sivagiri passed in O.S.No.253 of 1998, dated 29.08.2002. 1. The defendants are the appellants herein. 2. The plaintiff filed O.S.No.253 of 1998 before the District Munsif Court, Sivagiri for declaration that the 3rd schedule channel is a common channel for the plaintiff and the defendants and prayed for consequential injunction restraining the defendants from interfering with the enjoyment of the said channel. The plaintiff further prayed for a mandatory injunction directing the defendants to restore the 3rd schedule channel to its original possession. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.69 of 2002 before the Sub Court, Sankarankoil. The appeal was allowed granting a decree in favour of the plaintiff. As against the same, the present second appeal has been filed by the defendants. 3. The plaintiff has contended that the 1st schedule property is a common Well for the plaintiff and the defendants. According to the plaintiff, the 2nd schedule property belonging to the plaintiff is entitled to receive water from the 1st schedule common Well. The plaintiff further contended that 3rd and 4th items in the 2nd schedule property are located beyond the properties belonging to the defendants. Hence, there is a channel from the 1st schedule Well connecting 3rd and 4th items in the 2nd schedule property. 4. The defendants have obliterated the said channel and hence, prayed for mandatory injunction to restore the said channel. The defendants contended that the alleged Well in the 1st schedule property has got silted up 40 years back and no one is drawing water from the said 1st schedule Well. The defendants further contended that at no point of time there was a channel connecting the 1st schedule property with the 3rd and 4th items of the 2nd schedule property. The defendants further contended that the plaintiff is attempting to create a new channel over the properties of the defendants and the existing 3rd schedule channel is only an imaginary property. 5. The defendants further contended that the plaintiff is attempting to create a new channel over the properties of the defendants and the existing 3rd schedule channel is only an imaginary property. 5. The trial Court after considering Exhibits A1 and A2 sale deeds in favour of the plaintiff came to the conclusion that the 3rd schedule channel runs across the properties of the defendants. Hence, unless the plaintiff establishes his right to take water through the channel running across the property of the defendants, the plaintiff will not be entitled to any decree. The trial Court also found that under Exhibits A1 and A2 sale deeds, there is no reference about the suit 3rd schedule channel. The trial Court also found that since the Well has got silted up long back, the contention of the plaintiff that he is entitled to draw water from the said silted up Well to his 3rd and 4th item in the 2nd schedule property is not believable. The trial Court further found that the plaintiff has not sure about his case whether he is claiming right over 3rd schedule property on the basis of Exhibits A1 and A2 title deeds or on the basis of easementary rights. The trial Court found that even assuming that the plaintiff has been enjoying the 3rd schedule property from the year 1976, 20 years have not expired when the present suit was filed. The trial Court also found that even Exhibit A1 sale deed refers the suit 1st schedule Well as an obliterated Well. In view of the above said findings, the trial Court dismissed the suit. 6. The First Appellate Court after going through the oral and documentary evidence, came to a conclusion that the plaintiff is entitled to draw water from the 1st schedule Well to the 3rd and 4th items of the 2nd schedule property. The First Appellate Court also found that there is no other water source for the plaintiff other than the 1st schedule Well. The First Appellate Court also relied upon Exhibit A16 partition deed which was entered into between the family members of the defendant. The First Appellate Court also found that the Commissioner's report clearly mentioned about the remnants of a old channel running across the property of the defendants which ends in items 3 and 4 of the 2nd schedule property. The First Appellate Court also relied upon Exhibit A16 partition deed which was entered into between the family members of the defendant. The First Appellate Court also found that the Commissioner's report clearly mentioned about the remnants of a old channel running across the property of the defendants which ends in items 3 and 4 of the 2nd schedule property. The First Appellate Court also found that Exhibits A1 and A2 not only refer to the suit 1st item Well but also refer to a right to draw water through the channel. The First Appellate Court also held that even assuming that suit 1st schedule Well has got silted up, the channel is being used as a pathway by the plaintiff and the said right has been conferred upon the plaintiff under Exhibits A1 and A2. Based upon the said findings, the First Appellate Court decreed the suit as prayed for with a condition that both the plaintiff and the defendants will be entitled to draw water through the said 3rd schedule channel on alternate days. The present second appeal has been filed by the defendants challenging the decree of the First Appellate Court. 7. The second appeal has been admitted on the following substantial questions of law: “1. Whether the 1st Appellate Court is legally right, inspite of the pleadings and admission of the respondent that he was claimed right over the 3rd schedule water channel in the appellants 1and that the respondent has not claimed easementary right and that the respondent claimed claimed title over the 3rd schedule water channel through Exhibits A1 and A2? 2. Whether the 1st Appellate Court inspite of Exhibits A1 and A2 not having conferred title on the respondent over the 3rd schedule water channel, inspite of the respondent not having produced any title deed, inspite of Exhibits A1 and A2 not referring the 3rd schedule water channel, is legally right in decreeing the suit on the basis of Commissioner's report Exhibits C1 to C4? 3. Whether the 1st Appellate Court is right in concluding that the respondent has not claimed any easementary right over the 3rd schedule water channel by totally ignoring the pleadings and admission of the respondent according to which he claimed easementary right over the 3rd schedule water channel in the appellant land? 4. 3. Whether the 1st Appellate Court is right in concluding that the respondent has not claimed any easementary right over the 3rd schedule water channel by totally ignoring the pleadings and admission of the respondent according to which he claimed easementary right over the 3rd schedule water channel in the appellant land? 4. Whether the 1st Appellate Court is legally right in granting a decree in favour of the respondent to take water in alternative days in turn which the respondent himself not asked for in his pleadings nor proved it by evidence?” 8. The learned counsel for the appellants contended that even under Exhibits A1 and A2, the suit 1st schedule Well has been described as a dilapidated Well and as silted up Well. The Exhibits A1 and A2 are of the year 1976 and 1977 respectively. Hence, the contention of the plaintiff that he is drawing water from the said dilapidated Well till the filing of the suit namely, 1998 is highly imaginary and not believable. The learned counsel for the appellants further contended that the plaintiff has neither pleaded nor prayed for drawing water through the 3rd schedule property by the plaintiff and the defendants on alternate days. Without any pleading or prayer, the First Appellate Court has erroneously granted a decree. The learned counsel for the appellants further contended that when the plaintiff has filed the suit for declaration that the 3rd schedule channel is a common channel for both the plaintiff and the defendants, the entire burden is upon the plaintiff is to establish the said fact. The learned counsel for the appellant further contended that there is no reference about the suit 3rd schedule channel either under Exhibit A1 or Exhibit A2 sale deeds. 9. Per contra, the learned counsel for the respondent contended that there is a specific reference about the suit Well in Exhibits A1 and A2. He further contended that the Vaikal Valinadai Bathiyam has been mentioned under Exhibits A1 and A2 specifically. The learned counsel for the respondent further contended that Exhibit A16 is a partition deed between the family members of the defendants. The said partition deed also refers about the 1st schedule Well and the right to draw water from the 1st schedule Well and also about the 3rd schedule channel and also about Vaikal Valinadai Bathiyam to their properties. The learned counsel for the respondent further contended that Exhibit A16 is a partition deed between the family members of the defendants. The said partition deed also refers about the 1st schedule Well and the right to draw water from the 1st schedule Well and also about the 3rd schedule channel and also about Vaikal Valinadai Bathiyam to their properties. Hence, according to the learned counsel for the respondent, the document between the family members of the defendants itself indicates that the suit 3rd schedule channel was running across the property of the defendants. Hence, he prayed for dismissal of the second appeal. 10. I have carefully considered the submissions on either side. 11. It is not in dispute that the plaintiff has purchased the 1st schedule Well and items 1 and 2 of the 2nd schedule properties under Exhibit A1 on 19.02.1976. It is also not in dispute that the plaintiff has purchased items 3 and 4 of 2nd schedule property under Exhibit A2 on 08.08.1977. The defendants have not filed any documents on their side. A careful reading of Exhibits A1 and A2 will indicate that the Well located in the 1st schedule of property is a common Well and both the plaintiff as well as the defendants are entitled to draw water from the said Well. Exhibits A1 and A2 also refer that the properties have been conveyed along with Vaikal Valinadai Bathiyam (Channel pathway right). Under Exhibit A2, the plaintiff has purchased items 3 and 4 of the 2nd schedule property. In the said document, it has been referred that the plaintiff is entitled to 1/4th share in the suit 1st schedule Well. Exhibit A16 is the partition deed between the family members of the defendants. A perusal of Exhibit A16 indicate that the parties to Exhibit A16 partition deed are entitled to draw water from the suit 1st schedule Well along with Vaikal Valinadai Bathiyam. A combined reading of Exhibits A1, A2 and A16 will clearly indicate that both the plaintiff and defendants are entitled to draw water from the 1st schedule Well. 12. Admittedly, the defendants' property is located in between the 1st schedule Well and items 3 and 4 of 2nd schedule property belonging to the plaintiff. A combined reading of Exhibits A1, A2 and A16 will clearly indicate that both the plaintiff and defendants are entitled to draw water from the 1st schedule Well. 12. Admittedly, the defendants' property is located in between the 1st schedule Well and items 3 and 4 of 2nd schedule property belonging to the plaintiff. Hence, necessarily the plaintiff has to draw water from the 1st schedule Well to his properties only through a channel running across the property of the defendants. 13. A perusal of the Commissioner's report, clearly indicates that remnants of obliterated channel were available during the Commissioner's first visit but when the commissioner's visited, the suit schedule properties again after a period of 9 years, the channel has been obliterated. It is not the case of the defendants that the plaintiff is drawing water for his 3rd and 4th items of the 2nd schedule from some other property. Hence, on consideration of the above said facts will necessarily lead to a finding that the plaintiff was drawing water through the 3rd schedule channel to his 3rd and 4th item of the properties in the 2nd schedule. It can also be seen that the said channel has been obliterated by the defendants. The second Commissioner's report will clearly indicate that the defendants have obliterated that the 3rd schedule channel and created a new channel that just runs across their own property. 14. The other contention of the learned counsel for the appellants is that the suit 1st schedule Well has got silted up and hence, the contention of the plaintiff that he would draw water through from the said Well is not correct. However, the First Appellate Court has given a finding that not only in Exhibits A1 and A2 but also in the defendants document namely Exhibit A16 refer to the suit Well and channel. Hence, even assuming that the 1st schedule Well has got silted up, at any point of time, it may be restored. Even if it is not restored, the right of the plaintiff to walk through the 3rd schedule, will not get erased. 15. When the plaintiff has prayed for a declaration their suit 3rd schedule channel as a common channel for both the plaintiff and the defendants, the question of pleading easmentary rights does not arise. Hence, the substantial questions of law framed does not arise on the facts of the case. 15. When the plaintiff has prayed for a declaration their suit 3rd schedule channel as a common channel for both the plaintiff and the defendants, the question of pleading easmentary rights does not arise. Hence, the substantial questions of law framed does not arise on the facts of the case. 16. In view of the above said discussion, the judgment and decree of the First Appellate Court are confirmed. All the substantial questions of law are answered as against the appellants. This second appeal stands dismissed. No costs.