Andhra HC (Pre-Telangana)
Chaganti Subba Rao And Ors. vs Thimmaraji Satyanarayana on 1 November, 2006
Equivalent citations: 2007(1)ALD418, 2007(3)ALT408
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. Defendants 3 to 9 in O.S. No. 13 of 1986, on the file of the District Munsif, Parchur, filed this Second Appeal, aggrieved by the judgment and decree in A.S. No. 37 of 1987, of the Court of Subordinate Judge, Chirala. The respondent herein is the sole plaintiff.
2. The respondent filed the suit, initially for the relief of mandatory injunction, against the 1st appellant and two others, by name Kolla Tirupatirayudu and Battula Subbaiah. Tirupatirayudu died during the pendency of the suit. His legal representatives, appellants 2 to 7 were brought on record.
3. It was pleaded that the lands of the respondent are adjoining those of the appellants in Sy. No. 515 of Parchur Village, and there existed a channel, marked as ABCDEF in the plaint plan, to enable the flow of rain water, into the drain channel, on the northern side, and that the same was closed by the appellants, four months prior to the filing of the suit. The location of the lands of the respondent, appellants and the neighbouring owners, were shown in the plaint plan. At a subsequent stage, the respondent amended his plaint, to include the plea of declaration to the effect that he is entitled to drain off the water from his land, through the channel, marked in the plaint plan.
4. The appellants filed a written statement, disputing the very existence of the channel. They contended that from the dry lands owned by the respondent, the appellants and the neighbouring land owners, the rain water used to flow in the natural direction, and that in the cyclone that occurred in the year 1969, the levels of the lands have undergone a change. It was pleaded that they restored the levels of their lands, whereas the land of the respondent remained at a low level. Additional written statement was also filed, in the light of the amendment of the plaint.
5. The trial Court dismissed the suit, through its judgment dated 5.6.1987. The respondent filed A.S. No. 37 of 1987, in the Court of Subordinate Judge, Chirala. The appeal was allowed on 20.3.1995, and decreed the suit. Hence, this Second Appeal.
6. Sri K. Harinath, learned Counsel for the appellants, submits that the judgment rendered and decree passed by the lower appellate Court suffers from serious legal and factual infirmities. He contends that the death of the 2nd respondent in A.S. No. 37 of 1987, who was 2nd defendant in the suit, during the pendency of the appeal, resulted in abatement of the appeal, as a whole, since his representatives were not brought on record. According to the learned Counsel, the cause of action pleaded by the respondent was indivisible and thereby, the entire appeal abated, on account of the failure on the part of the respondent, to bring the legal representatives of the deceased-2nd respondent, on record. He further contends that the plea raised by the respondent was inconsistent and mutually exclusive, inasmuch as, his entitlement to let the water through the land of appellants was claimed, as legal, prescriptive and easementary right, at one and the same time.
7. By making extensive reference to the pleadings and evidence, the learned Counsel submits that the respondent failed to prove the existence of channel, and that the suit was barred by limitation. Another point urged by the learned Counsel is that the lower appellate Court did not advert to the important aspect of limitation and the plea as to prescriptive rights. Learned Counsel filed written arguments, framing as many as 14 points, for consideration, and submissions, running into 30 typed pages. He has also cited fairly good number of judgments, in support of his contentions.
8. Sri Addepalli Suryanarayana, learned Counsel for the respondent, on the other hand, submits that the death of the 2nd respondent in A.S. No. 37 of 1987 was not intimated, either to the Court, or to his counterpart in the appellate Court, as required under Rule 10-A of Order XXII CPC, and thereby, it cannot be said that there was any lapse, on the part of the respondent. It is also his case that the cause of action was individual, against the persons impleaded in the suit and appeal, and the death of one of them, does not bring about abatement. Learned Counsel submits that it is permissible for a party to a suit, to take inconsistent pleas in the pleadings, and the only requirement is that the submissions at the time of hearing must not be mutually exclusive. He submits that the evidence on record is sufficient to prove the existence of the channel, and that no interference is warranted with the judgment and decree under appeal.
9. The trial Court initially framed only one issue viz.: whether the plaintiff is entitled for the relief of injunction as prayed for. Subsequently, the following additional issues were framed at various stages:
(1) Is the suit as framed is not maintainable as contended in the written statement? (2) Whether the plaintiff is entitled for the declaration prayed for?
(3) Whether the suit is barred by time? and (4) Whether the plaintiff is entitled to take inconsistent pleas in the suit?
On behalf of the respondent, PWs. 1 to 5 were examined and Exs.A-1 to A-25 were marked. On behalf of the appellants, DWs-1 to 5 were examined and Exs.B-1 to B-16 were marked. The trial Court answered the last additional issue extracted above, in favour of respondent, and held rest of the issues, against him. In the appeal filed by the respondent herein, the lower appellate Court framed the following points:
(1) Whether the plaintiff succeeded in establishing the existence of ABCDEF channel till 4 months prior to the filing of the suit? (2) Whether the plaintiff perfected his right to drain off the water from his plot through ABCDEF channel, into the northern side drain by prescription? (3) Whether the plaintiff is entitled for declaration, mandatory injunction and also permanent injunction sought for? (4) Whether the judgment and decree passed by the trial Court are sustainable in law and on facts?
All the points were answered in favour of the respondent.
10. In view of the submissions made by the learned Counsel for the parties, the following questions arise for consideration, before this Court:
(a) Whether A.S. No. 37 of 1987 filed by the respondent herein abated, on account of the death of 2nd respondent therein?
(b) Whether the lower appellate Court committed any irregularity, in not framing an independent point, on the question of limitation? and
(c) Whether the respondent discharged his burden, in proving that the suit channel existed, shortly before the suit was filed?
11. It is a matter of record that the 2nd respondent in A.S. No. 37 of 1987, who was 2nd defendant in the suit, died during the pendency of the appeal. The record does not disclose whether any information, as to his death, was furnished by the learned Counsel appearing for him, as required under Rule 10-A of Order XXII CPC. Learned Counsel for the appellants is not able to throw any light, in this regard.
12. Addition of Rule-10-A in Order XXII CPC, has its own significance. The parties to the proceedings before the Courts, are not expected to be posted with the immediate information as to the death of persons, appearing as the opposite parties. The death of a party to the proceedings, would lead to abatement, either in part, or as a whole, depending upon the divisibility or otherwise of the cause of action. Having regard to the serious consequences that follow, on account of the death, particularly, on the rights of the plaintiff or appellants and taking note of the fact that all the parties may not have knowledge of such developments, the Parliament incorporated Rule 10-A. Though the rule, in terms, does not state that non-compliance with it would have the effect of arresting the abatement, the purpose underlying it cannot be ignored. The Court has to verify as to whether the factum of the death of one of the parties was known to the other, and there was any advertent lapse, on the part of the latter, in taking necessary steps.
13. Where several defendants are impleaded in a suit, the question whether the death of one of them, would bring about a total abatement, would depend upon the nature of cause of action, in the suit. If the cause of action is divisible, the abatement will be restricted to that portion of the claim, made against the deceased party, and the rest of the claim would survive. On the other hand, if the cause of action is indivisible, the entire suit would abate, if steps are not taken to bring the legal representatives, within the stipulated time.
14. Even where the cause of action was indivisible and there was lapse, on the part of the concerned party, to take necessary steps, in such matters, the effect thereof must be discerned and perceived, in the same set of proceedings. If no objection was taken on these aspects, in the concerned proceedings, it is impermissible to raise the objection or to plead the ground, at the subsequent stages.
15. In the instant case, no memo, as required under Rule 10-A of Order XXII CPC, was filed. The relief claimed by the respondent was individual, against the respective parties, to the extent the channel passed through, the various survey numbers held by the defendants. Even if the cause of action is to be treated as indivisible, it is evident that the appellants did not raise any objection, in this regard, during the pendency of the first appeal. In Chaya and Ors. v. Bapusaheb and Ors. , the Supreme Court held that if the plea of abatement is not taken by the aggrieved party, during the pendency of the appeal, it cannot be permitted to be raised, in the second appeal, or subsequent proceedings. The observation of the Supreme Court reads as under:
Since the plaintiff-respondents did not raise the objection with regard to the abatement of the appeal, they were barred from raising the said objection in the second appeal before the High Court.
16. Same situation exists in the instant case. The judgment of the Supreme Court in Babu Sukhram Singh v. Ram Dular Singh AIR 1973 SC 204, and that of the Allahabad High Court in Sita Ram v. Fatingan , relied upon by the learned Counsel for the appellant, do not have any application, to the facts of the present case.
17. Coming to the second question, learned Counsel for the appellants seriously contended that the lower appellate Court did not address itself, to the question of limitation, and to that extent, the judgment rendered by it, is erroneous. The issues framed by the trial Court and the points identified by the lower appellate Court, have already been extracted in the preceding paragraphs. A perusal of Order XLI CPC reveals that the points to be framed by an appellate Court need not be the complete replication of the issues framed by the trial Court. By the time the matter reaches the appellate Court, the complexion of the litigation undergoes some change. For instance, in the present case itself, an objection raised, as to the permissibility of contradictory pleas in the plaint, was negatived by the trial Court, while dismissing the suit.
18. Notwithstanding the mandate under Rule 29 of Order XLI CPC, the judgment rendered by an appellate Court cannot be held to be defective, only on the ground that points were not framed. Even in cases, where the appellate Court had not framed points for consideration, it can be said to have complied with the requirement under Order XLI CPC, if it is found that the Court had addressed itself to all the controversies that arise in the appeal. In the instant case, though no separate point was framed, touching upon the question of limitation, the lower appellate Court did consider the same in its common discussion on Points 1 to 3.
19. The question of limitation was considered by the lower appellate Court from two angles, viz., in the context of filing the suit; and in the context of prescriptive right. The trial Court recorded a finding that the suit channel was meddled with by the appellants, few months before the suit was filed, and in arriving that conclusion, it took note of the evidence of witnesses examined by the respondent, who are admittedly lessees of the neighbouring lands. In paragraph 18 of its judgment, the lower appellate Court took note of the plea of limitation, as under:
It is not their case that there was a channel, but it was closed long prior to the filing of the suit, and as such, the plaintiff's right is barred by limitation. and answered it with the following observation:
By relying upon these circumstances and disinterested testimony of PWs.2 and 3, I hold that the disputed channel was closed four months prior to the filing of the suit, as alleged in the plaint.
and on that basis, it found that the suit was filed within the period of limitation. On the other aspect, the observation of the appellate Court reads as under:
Since he (plaintiff) has been using the channel for more than the statutory period, I hold that he acquired prescriptive rights to it and the defendants have no right to close it.
Reference was made to the provisions of the Easement Act also. Therefore, it cannot be said that the lower appellate Court did not take note of the plea of the appellants that the suit was barred by limitation.
20. It is seriously contended that the right of a neighbouring land owner cannot be both legal as well as prescriptive, at one and the same time, and such mutually exclusive contentions cannot be accepted. The question as to whether the respondent proved his legal right to let the water from his land, through the suit channel, would be dealt with a little later. The lower appellate Court came to the conclusion that the respondent acquired prescriptive rights. There is nothing in law, which prohibits a particular right, being prescriptive, as well as legal, at one and the same time. Many a time, the legislative exercise would be mainly to recognize existing rights. If a right existed in the form of an easement, and if it is also recognized by law as a legal right, the pre-existing prescriptive right would not cease to exist. Through the subsequent development of recognition in law, the right is further strengthened. Therefore, it cannot be said that the lower appellate Court committed any error in its judgment, in the matter of formulating points and addressing the controversies.
21. The third and important question is about the proof of his case by the respondent. It may appear, in the first blush, to be question of fact. However, it has several facets of law, which are substantial in nature. The plea of the respondent was that the rain water from his land was flowing from the suit channel, to the neighbouring large drainage channel. While the land held by the respondent was succeeded by him from his ancestors, the appellants are said to be the purchasers, of their respective extents, few years prior to the filing of the suit. Disputes persisted ever since the time of the grandfather of the respondent, and much before purchase by appellants, in the matter of the maintenance and use of the channel. On his part, the respondent filed Exs.A-1 to A-5, which are certified extracts relating to Field Nos.276, 277 and 273 (Ex.A-1), Revision Survey extract of Field No. 515 (Ex.A-2), printed map of Parchur Village (Ex.A-3), Plaint plan (Ex.A-4), and plan relating to Field No. 515, prepared by Assistant Director of Survey and Land Records (Ex.A-5). There are other documents relate mostly to the proceedings that ensued between different parties, and the orders passed by the concerned authorities. The documents referred to above were obtained from the Revenue/ Survey and Settlement Authorities. In all these documents, which are in the form of maps, the suit channel is clearly shown. Under Section 82 of the Evidence Act, the documents of this nature carry with them strong presumption, which can be displaced by the party opposing them, through cogent and reliable evidence. Till the other party proves them to be not correct, they are presumed to be valid, genuine, and can be taken as depicting the correct state of affairs, without any support from corroborative evidence. For all practical purposes, it can be said that the respondent proved his case, by filing the said documents/maps. It was for the appellants, to rebut the same through acceptable evidence. No effort whatsoever, was made by them, in this direction.
22. Learned Counsel for the appellants had placed before this Court, several provisions touching upon the preparation of maps and conduct of survey, to contend that the documents referred to above were defective. It is difficult to appreciate these contentions. The reason is that these are pure questions of fact, and unless necessary material in the form of evidence or pleadings existed, it cannot be appreciated for the first time, at the stage of second appeal.
23. The trial Court did not take these documents into account, on the ground that the channel was not mentioned in the adangals and other similar documents. The necessity to mention the existence of a channel in the adangals does not arise. It is only the factum of possession and ownership, that are required to be mentioned in adangals, and not the physical features, obtaining on the site. The lower appellate Court discussed this matter, at length, and recorded a finding that the respondent proved his case.
24. As observed earlier, Sri K. Harinath, learned Counsel for the appellants had submitted detailed written arguments, and cited number of judgments, touching on the various aspects, which were dealt with above. Since the matter proceeded on settled principles, this Court does not find the necessity to refer to them in detail, lest the judgment becomes verbose. At the same time, this Court places on record, the thorough presentation by the learned Counsel.
25. This Court does not find any basis to interfere with the judgment and decree passed by the lower appellate Court. The Second Appeal is accordingly dismissed. There shall be no order as to costs.