Madras High Court
Kr.Arumugam Servai vs Sp.Muthumanickam on 8 January, 2020
Author: R.Subramanian
Bench: R.Subramanian
S.A.(MD).No.5/2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:08.01.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD).No.5 of 2020
1.KR.Arumugam Servai
2.KR.Subramanian
3.SP.Palaniappan
4.P.Valli
5.AR.Subbaiah
6.SP.Sornavalli ... Appellants
Vs.
1.SP.Muthumanickam
2.S.Karuppaiah
3.RM.Karuppaiah
4.S.Manimuthu
5.C.Karuppaiah
6.S.Karuppaiah
7.SP.Subramaniam
8.RM.Subramanian
9.The Tahsildar,
Devakkottai,
Sivaganga District.
10.The Sub Collector,
Devakkottai,
Sivaganga District.
11.The State of Tamilnadu
represented by the
District Collector,
Sivaganga,
Sivaganga District. ...Respondents/Respondents/
Defendants
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S.A.(MD).No.5/2020
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, to set aside the judgment and decree of the learned Subordinate
Judge, Devakkottai dated 09.01.2008 in A.S.No.30 of 2007 confirming the
judgment and decree of the learned District Munsif, Devakkottai in
O.S.No.70 of 2004 dated 01.03.2005 and to decree the said suit filed by
the appellants with costs by allowing this appeal with costs throughout.
For Appellants : Mr.R.Sundar Srinivasan
For R1 to R4, R6 to R8 : Mr.R.Vijayakumar
For R9 to R11 : Mr.N.Shanmugaselvam
JUDGMENT
The plaintiffs in O.S.No.70 of 2004 are the appellants. The said suit was laid by them seeking a relief of mandatory injunction, permanent injunction and damages contending that they are entitled to right of irrigation from the Ooravayal Kanmai through first Sluice situated in the said Kanmai. According to them, the defendants, who belonged to the same village and form part of a majority group, have destroyed the first Sluice by force, thereby affecting the irrigation rights of the plaintiffs.
2. The suit was resisted by the defendants contending that there are only three Sluices in the Ooravayal Kanmai and there was no other Sluice as claimed by the plaintiffs. The theory that the defendants joined together and removed the Sluice was denied. It was also contended that the suit is barred in view of the provisions of Tamil Nadu Irrigation Tanks (Improvement) Act, 1949.
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3. The Courts below upon consideration of the evidence on record and after referring to the Description Memoir, which was filed as Ex.B2 concluded that there was no first Sluice in the location claimed by the plaintiffs. The Courts below also found that there are only three Sluices constructed by the Public Works Department in the said Kanmai. Therefore, according to the Courts below, the plaintiffs are not entitled to the relief as prayed for in the suit. The claim of the defendants that the suit is barred under the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949 was also accepted by the Courts below. Aggrieved, the plaintiffs are come up with this appeal.
4. I have heard Mr.R.Sundar Srinivasan, learned counsel appearing for the appellants and Mr.R.Vijayakumar, learned counsel appearing for the respondents 1 to 4, 6 to 8, who had entered appearance at the SR stage.
5. Mr.R.Sundar Srinivasan, learned counsel appearing for the appellant would vehemently contend that the Courts below are not right in concluding that the suit is barred under the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949. According to the learned counsel for the appellants, what is barred under the provisions of the said Act is that any http://www.judis.nic.in 3/8 S.A.(MD).No.5/2020 suit with reference to any scheme that is implemented by the Government under the said enactment. Therefore, bar will not be attracted.
6. Section 3 of the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949 reads as follows:-
“3.Power to take measures for increasing the capacity or efficiency of irrigation tanks (1)Notwithstanding anything contained in any other law for the time being in force, the Government shall have power to raise the full-tank level of any tank or to take any other measures for increasing its capacity or efficiency, wherever it may be situated and whether in a ryotwari, zamindari, inamdari or other area.
(2) The owner of a tank not belonging to the Government shall not be required to bear any portion of the cost of carrying out any measures in respect of the tank under sub-section (1).
(3) Where, in pursuance of sub-section (1), any measures are carried out, in respect of a tank, the cost of carrying them out or such portion of the cost as the Government may specify, may be recovered by the District Collector from the owners of the lands and other properties benefited by the work in such proportions, and in such manner, as may be prescribed.” http://www.judis.nic.in 4/8 S.A.(MD).No.5/2020
7. A reading of the above provision would show that there cannot be an injunction to restrain the exercise of any powers conferred on the Government by Section 3 of the said Act. Useful reference was also made to the judgment reported in 2005(1) MLJ 169, wherein, it was held that the ultimate right to regulate water supply is with the Government and that a Civil Suit is not maintainable. Though the pleadings in the present suit is to the effect that the respondents, who belonged to a larger group have illegally removed the Sluice, it is the contention of the defendants that there was no such Sluice and it is through the three sluices constructed by the Government the irrigation is regulated. Therefore, according to the defendants, there cannot be a mandatory injunction directing the Sluice to be either constructed or restored. In view of the provisions of the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949, I am of the considered opinion that the Courts below are right in concluding that the suit is barred under the said enactment. Even on merits, the Courts below have found that the claim of the plaintiffs that there was a Sluice in the location claimed by the plaintiffs has not been established by them. Relying the Description Memoir which contains final details of the irrigation tanks and the source of water supply as well as the source of irrigation, the Courts below have come to the conclusion that there was no such Sluice in the location as claimed by the plaintiffs. The said findings of the Courts below are factual and since they are based http://www.judis.nic.in 5/8 S.A.(MD).No.5/2020 on documentary evidence, I do not think that those findings could be termed as perverse. In the absence of any perversity in the conclusions of the Courts below, I do not think that I can interfere with the factual findings sitting under Section 100 of the Civil Procedure Code. I do not find any question of law much less substantial question of law in order to enable me to entertain the second appeal. Hence, the second appeal fails and is dismissed, without being admitted. No costs. Consequently, connected miscellaneous petition is closed.
Index : Yes/No 08.01.2020
Internet : Yes/No
am
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S.A.(MD).No.5/2020
To
1.The Sub Court,
Devakkottai.
2.The District Munsif,
Devakkottai.
3.The Section Officer,
V.R.Section, Madurai Bench of Madras High Court, Madurai.
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