Madras High Court
Malairaj (Died) vs The State Of Tamilnadu on 27 August, 2019
Author: R.Pongiappan
Bench: R.Pongiappan
S.A.No.1575 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 01.08.2019
Judgment Pronounced on : 27.08.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
S.A.No.1575 of 2001
1.Malairaj (Died)
2.Pilevandran .. Appellants / Appellants /
Plaintiffs
Vs.
1. The State of Tamilnadu,
represented by its District Collector,
Sivaganga District @ Sivaganga.
2.Vedanayagam (Died)
3.Adaikkalam
4.Soosai .. Respondents / Respondents /
Defendants
[R2 deceased memo in USR.No.
1102/12 is recorded vide order,
dated 15.03.2012 by ASJ]
[1st appellant and R2 died. Memo
in USR.Nos.1158/12 and 2698/12
dated 20.03.2012 & 27.08.2012
is recorded, vide order, dated
29.08.2012 by RKJ]
1/19
http://www.judis.nic.in
S.A.No.1575 of 2001
PRAYER: Appeal filed under Section 100 of Civil Procedure Code,
against the Judgment and Decree, dated 27.03.2001, passed in
A.S.No.73 of 1999, by the learned Subordinate Judge, Sivaganga,
modifying the Judgment and Decree, dated 25.02.1999, passed in
O.S.No.272 of 1993, by the learned District Munsif, Manamadurai.
For Appellants : Mr.S.Parthasarathy
For Respondents : Mr.C.Uma Sankar
for R3 and R4
Mr.P.Sethuraman
Special Government Pleader
for R1
R2-died (memo recorded)
JUDGMENT
Aggrieved over the concurrent findings made in O.S.No.272 of 1993, on the file of the learned District Munsif, Manamadurai, and in A.S.No.73 of 1999, on the file of the learned Subordinate Judge, Sivaganga, the appellants, who are the plaintiffs before the trial Court is before this Court with this present second appeal. 2/19 http://www.judis.nic.in S.A.No.1575 of 2001
2. Before the trial Court, the deceased first plaintiff and the 2nd plaintiff/appellants for themselves and as a representatives of Ayacutdars of Alimadurai Village filed a suit as against the respondents and seeking the relief of permanent injunction restraining the defendants and their agents from causing diminution of free flow of the water through the plaint A-schedule channel, which takes water exclusively to one Alimadurai Kanmai situated in S.F.No. 225 by cutting the banks of the plaint A-schedule channel at any point of time or by putting any artificial barrier, to divert the water flow into the plaint A-schedule channel situated in S.F.No.68, 78 and 79.
3. By Judgment and Decree, dated 25.02.1999, the learned District Munsif, Manamadurai, has held that the suit is barred under Section 3 of Tamilnadu Irrigation Tanks (Amendment) Act, 1949, and accordingly, dismissed the suit as not maintainable before the Civil Court.
4. Aggrieved over the said findings, the appellants herein filed an appeal in A.S.No.73 of 1999, on the file of the learned Subordinate Judge, Sivagangai. The learned Subordinate Judge, Sivagangai, by Judgment and Decree, dated 27.03.2001 confirmed the findings 3/19 http://www.judis.nic.in S.A.No.1575 of 2001 arrived at by the trial Court and ultimately dismissed the appeal. Feeling aggrieved over the same the plaintiffs/appellants are before this Court with this second appeal.
5. For the sake of convenience, the parties are referred to as, as referred before the Court below.
6. The averments made in the plaint, in briefly are as follows:
The irrigation channel described in schedule-A and the irrigation tank of Ulagamaniyendal described in the schedule-B hereunder are situated within the Nagarakudi Village revenue Group, in the Taluk of Ilayankudi. The channel in A-schedule takes its source from a main channel known as Nattarkal. This nattarkal branches from the river Vaigai, a few kilometres west of the suit area. This main channel Nattarkal branches into three channels at the village of Nedungulam, a little over 2 kms west of the suit property. The suit A-schedule channel is one of the three branches and is intended to feed the tank situated in S.F.No.225 of Alimadurai Village. The said tank is known as Alimadurai Kanmai, which has a water spread area of about 57 acres and has to irrigate a Nanja Ayacut of over 28 Acres. Even when the monsoons are vigorous and when there is a regular flow in the river Vaigai, the said nattarkal and the Alimadurai channel 4/19 http://www.judis.nic.in S.A.No.1575 of 2001 in A-schedule, the tank would normally required to be filled up twice for all the crops in the said Nanjas to be brought to fruition. This Alimadurai channel crosses the north south Paramakudi-Ilayangudi Road west of S.No.73, at the same point the former village cart track and the Alimadurai Village was also branching and running parallel to this channel. The said cart track and the Alimadurai Channel running east-west are together comprised in S.Nos.73, 90 and 89 etc. The channel is running on the southern portion of the respective survey numbers. The cart track on the north was recently upgraded and a broadened metal road has been laid. On account of this widening of the said road, the channel had diminished in width and now there is less flow of water. Due to the frequent failure of the monsoons with only occasional flow in the river Vaigai and nattarkal, the said Alimadurai channel has not had adequate water flow in the recent past. This channel is the only feeding source to the said Alimadurai tank.
(6.1) The tank in the B-schedule is known as Ulagamaniyendal Kanmai situated in S.F.No.69, 78 and 79 with a water spread area of about 14 acres and irrigating Nanja Ayacut of the said Village to the extent of about 26 acres. The said B-schedule tank is fed by the surface outflow water of the lands situated west of the Paramakudi- 5/19 http://www.judis.nic.in S.A.No.1575 of 2001 Ilayankudi Road through a culvert in the said road. Being a small tank, it gets filled up even with average rainfall and the said Ulagamaniyendal tank needs no other feeding source from time immemorial. The said B-schedule Ulagamaniyendal tank, the northern portion of which is far higher in level than the suit A-schedule Alimadurai Channel has never been fed and could never have been fed by the said channel. There had never been any artificial contrivance at any time to facilitate the said diversion of water from Alimadurai channel. Actually, the B-schedule tank has an automatic surplus water near its north-western tail end, facilitating the flow of the surplus water from the said tank into the suit A-schedule channel. Till now, the Nanja Ayacutdars of the Alimadurai Tank have also acquired the rights of the exclusive supply of all the water flowing through A-schedule channel by custom, prescription and lost grant.
(6.2) Under the above circumstances, in 1964, some of the Ayacutdars of Ulagamaniyendal arranged to divert the water flowing into the suit A-schedule channel into the B-schedule tank with the connivance of the then Revenue Officials. For questioning the same, a case has been registered in C.C.No.2216 of 1964. Once again, on 09.11.1978, the defendants 2 to 5 attempted to cut the southern bund of the suit A-schedule channel and illegally divert water into the 6/19 http://www.judis.nic.in S.A.No.1575 of 2001 B-schedule tank. Hence, the suit.
7. The averments made in the written statement filed by the second defendant and adopted by the defendants 3 to 5 are as follows:
It is true only through A-schedule property, the land covered under B-schedule is getting irrigated till now. For the same relief as prayed in this suit, the plaintiffs filed a suit against the defendants in O.S.No.325 of 1978, on the file of the learned Subordinate Judge, Ramanathapuram and the same was dismissed. The appeal preferred as against the Judgment and Decree passed in O.S.No.325 of 1978 has also been dismissed. Hence, the plaintiffs are not entitled any relief, the appeal is liable for dismissal.
8. Based on the pleadings set out in the plaint as well as in the written statement, the learned District Munsif, Manamadurai framed the necessary issues and tried the suit.
9. Before the trial Court, the second plaintiff examined himself as P.W.1 and marked 3 documents as Ex.A1 to Ex.A3. On the side of the defendants, none have been examined as defendant side witness. On the other hand, two documents were marked as Ex.B1 and Ex.B.2 7/19 http://www.judis.nic.in S.A.No.1575 of 2001 on the side of the defendants. Apart from the documents referred above, the report and plan filed by the Advocate Commissioner was marked as Ex.C1 and Ex.C2.
10. Having considered all the materials placed before him, the learned District Munsif, Manamadurai, came to the conclusion that the suit is not maintainable. Accordingly, he dismissed the suit.
11. In the appeal, the learned Subordinate Judge, Sivagangai, has also confirmed the findings arrived at by the trial Court. Feeling aggrieved over the same, the plaintiffs/appellants are before this Court with this second appeal.
12. At the time of admitting the appeal, this Court has formulated the following substantial Questions of Law for consideration:
“1. Whether the trial Court was right in pronouncing judgment only on one issue after the entire trial was over?
2. Whether the Courts below were right in holding that the suit was barred by the provisions of the Tamilnadu Irrigation Tanks (Improvement) 8/19 http://www.judis.nic.in S.A.No.1575 of 2001 Act, 1949, when the case was one relating to channels and not to tanks?
3.Whether the Courts below had not misapplied the provision under Section 4(1) of the Tamilnadu Irrigation Tanks (Improvement) Act, 1949?”
13. Substantial Question of Law Nos.1 to 3:
On considering the entire factual aspects and also on considering the fact that all the Substantial Questions of Law is only with respect to Section 3 and Section 4 (1) of Tamilnadu Irrigation Tanks (Improvement) Act, 1949, all the three Substantial Questions of Law already framed are answered commonly as follows:
It is an admitted fact that the channel in A-schedule property having its source of water from a main channel called as Nattarkal, which branches from the river Vaigai at Ulagamaniyendal Village. Further, it is admitted on either side that the plaintiffs are the Ayacutdars to the Alimadurai kanmai, and the defendants 2 to 4 are the Ayacutdars of Ulagamaniyendal kanmai, which situated near to the Alimadurai kanmai, particularly within the distance of 150 metres. The case of the plaintiffs before the Court below is that the 9/19 http://www.judis.nic.in S.A.No.1575 of 2001 defendants are made attempt to take water from the A-schedule property to the Ulagamaniyendal kanmai, which is B-schedule property. The learned counsel appearing for the appellants/plaintiffs would contend that geographically, since Ulaganeri kanmai is in the elevated position, taking water from the A-schedule property, by putting a barrage in the middle of the A-schedule property will cause hindrance in reaching the water to Alimadurai kanmai, further he contended that if the attempt made by the defendants (i.e., put up a sluice) is completed, the rights of the Alimadurai kanmai Ayacutdars will go away. So, the Courts below without understanding Section 3 and 4 (1) of the Tamilnadu Irrigation Tanks (Improvement) Act, 1949, failed to understand the case of the plaintiffs and dismissed the suit.
14. In this regard, the learned counsel for the plaintiffs would contend that this Court already held that the said Act is not applicable in respect to the irrigation right of the Villagers. In this regard, he relied on the Judgement of this Court in the case of B.Mariappan vs. Secretary to Government of Tamilnadu, reported in 2002 (3) MLJ 706, wherein, in paragraph No.8, it has been held as follows:
“8. In the instant case, a careful reading of Sec.4 of the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949 and Sec.8 of the 10/19 http://www.judis.nic.in S.A.No.1575 of 2001 Tamil Nadu Irrigation Works(Construction of Field Bothies) Act, makes it clear that there is a bar to try the suit before the Civil Court only with regard to the exercise of powers conferred on the Government and the authorities in the respective Acts, but not with regard to irrigation right of the villagers from a particular tank. Therefore, both the decisions, referred supra, are not applicable to the facts and circumstances of the present case.”
15. On applying the said principles with the case in our hand, it is necessary to peruse whether the suit filed by the plaintiffs is in respect to their rights of irrigation having by them or in respect to taking water through the A-schedule property to Alimadurai kanmai. In this aspect, the factual position is entirely different from the authority relied on by the learned counsel for the plaintiffs/appellants.
16. The factual position of this case is that the plaintiffs are attempted to prevent the defendants to take the water from A- schedule property by putting sluice. In fact, the Government is having the duty to take necessary measures for filling the kanmais situated all over the State. The reported plan submitted by the Advocate 11/19 http://www.judis.nic.in S.A.No.1575 of 2001 Commissioner is clear that the Ulagamaniyenthal kanmai is not having any specific source for collecting water from Vaigai River. The only source for getting water to the Ulamaniyendal kanmai is the rain water, which collected from the fields situated on the western side of the Ulagamanienthal village. Since both the kanmais are situated one by one, refusing to give water to Ulagamanienthal kanmai that too from Vaigai River is nothing but against the natural justice.
17. In the said occasion, the learned counsel for the respondents would contend that since there is a bar under Section 4 of the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949, the suit itself is not maintainable one. In this regard, he relied on the judgment of this Court in the case of Ponnusamy and others vs. State of Tamilnadu reported in 2005(5) CTC 427 wherein, in paragraph No.17, this Court has held as follows:
“17. Section 14 of the Act reads:
“No Court shall entertain any suit or application for the issue of any injunction to restrain the exercise of any powers conferred on the Government by Section 3.”.
thereby, showing the Civil Court is not competent to issue an injunction restraining the 12/19 http://www.judis.nic.in S.A.No.1575 of 2001 exercise of any power of the Government, which is aimed to improve the channel, in this case taking water through the supply on the channel to Anaikulam tank. The entire exercise by the appellants, by filing the suit was only to prevent the Government from putting up the dam, which is aimed to improve the tank as said in Section 3 of the Act. Therefore, the plain readsin of the above said Section, coupled with the admitted position, as well as the established facts makes it crystal clear that the Court cannot pass an order of injunction restraining the defendants, from putting up dam, which is the prayer in the plaint, which is well supported by the judicial precedent also.”
18. Further, he relied on the Judgment of this Court in the case of State of Tamilnadu rep. by the District Collector, Madurai vs. V.A.Abdul Karim and others., reported in 1997 (111) CTC 639, wherein, in paragraph No.11, the Hon'ble Division Bench of this Court has held as follows:
“11. .......... The paramount and absolute rights of the State Government, to regulate and distribute the supply of water for irrigation to one and all whose lands form part of the ayacut under an irrigational source cannot be whittled down or undermined by the Civil Courts granting any blanket orders of injunction or stay or even any 13/19 http://www.judis.nic.in S.A.No.1575 of 2001 direction or declaration annulling a particular scheme or project devised in the larger and general interest and welfare of people and the society at large.”
19. Apart from the above authorities, the learned counsel for the respondents would contend that and relied on the Judgment of C.Arulsamy and another vs. State of Tamilnadu, rep. by the District Collector, Pudukottai District and others, reported in 2003 (4) CTC 670, wherein, in paragraph No.17 this Court has held as follows:
“17. The plaintiffs have filed the suit not only for declaration of their alleged mamool and customary right, but also consequentially prayed for injunction, against the Government. Prima facie, the suit itself is not maintainable and the trial Court ought not to have taken the case on file. But, unfortunately, this point was not raised wither by the Government or by the learned counsel appearing for the parties, before the trial Court, thereby, allowing the suit to remain on the file of the trial Court, then proceedings with the trial, ending in a conclusion, which is impugned before me. When the suit below, is not maintainable under law, even as otherwise held by the courts below, the question of granting a scheme like decree is also not permissible, since the same is in a way restricts the 14/19 http://www.judis.nic.in S.A.No.1575 of 2001 power of the Government, to regulate the water supply, which will amount to injunction impliedly, indirectly, which is barred under Section 14 of the Act, as said supra.”
20. On culling out the entire judgment relied on by the learned counsel for the respondents reveal the fact that the Government is the authority to distribute water among the public. In other words, the Government shall have the power to raise the full tank level of any tank or to take any other measures or in its capacity or efficiency. Before the Courts below, the appellants have not claimed the individual right over the A-schedule property. They themselves admitted that the said channel is situated near to the road carries the water to Alimadurai kanmai from Vaigai River. Therefore, since both the A-schedule and B-schedule properties are under the control of the Government, we did not decide that the suit is filed with respect to the irrigation right of the plaintiffs.
21. Apart from that on the side of the defendants, before the trial Court, the Judgment rendered by the learned Subordinate Judge, Ramanathapuram in O.S.No.325 of 1978 was marked as Ex.B1. Further, the order passed in I.A.No.378 of 1978 in O.S.No.74 of 1978 was marked as Ex.B2. In fact, the earlier suit in O.S.No.325 of 1978 15/19 http://www.judis.nic.in S.A.No.1575 of 2001 has also filed by the plaintiffs in the representative capacity of the Alimadurai village people. The prayer sought in the said suit is also for restraining the representatives(defendants) of the Ulagamaniyendal Village people to take water from the A-schedule property. The said suit was ended against the plaintiffs herein. It is admitted on either side that the Judgment and Decree passed in O.S.No.325 of 1978, which came up to this Court and decided as the plaintiffs are not entitled the relief to restrain the people of Ulagamaniyendal kanmai from taking water from their channel. Further, with respect to the dispute, a criminal case has also been registered against the plaintiffs and the same was ended in acquittal. Therefore, filing the suit as a second time for the same relief cannot be entertained under the provisions of Section 11 C.P.C. Even though, the aim of the plaintiffs is for survival through the agricultural activities, if the relief is granted in favour of the plaintiffs, the people who are depending upon the Ulagamanienthal kanmai also will be suffered. Therefore, this Court came to the conclusion that the Judgement rendered by the Courts below is absolutely correct. The Substantial Questions of Law raised in this second appeal are answered affirmatively in favour of the defendants. 16/19 http://www.judis.nic.in S.A.No.1575 of 2001
22. In fine, the Second Appeal stands dismissed. The Judgment and Decree, dated 27.03.2001, passed in A.S.No.73 of 1999, by the learned Subordinate Judge, Sivaganga, modifying the Judgment and Decree, dated 25.02.1999, passed in O.S.No.272 of 1993, by the learned District Munsif, Manamadurai is hereby confirmed. No Costs.
27.08.2019 Index : Yes/No Internet: Yes/No PJL To
1. The Subordinate Judge, Sivaganga.
2. District Munsif, Manamadurai.
3. The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
17/19 http://www.judis.nic.in S.A.No.1575 of 2001 18/19 http://www.judis.nic.in S.A.No.1575 of 2001 R.PONGIAPPAN, J.
PJL Pre-delivery Judgment made in S.A.No.1575 of 2001 27.08.2019 19/19 http://www.judis.nic.in