Shanmugasundaram Pillai (Died) vs Subramanian on 5 January, 2022

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Madras High Court

Shanmugasundaram Pillai (Died) vs Subramanian on 5 January, 2022

2. The plaintiff filed O.S.No.197 of 1986 before the Additional District Munsif, Sankarankoil for declaration that he is entitled to half share in the 1st schedule Well and for permanent injunction restraining the defendant from preventing the plaintiff from taking water from the 1st schedule Well to the 2nd schedule properties. The suit was decreed by the trial Court. The defendant filed A.S.No.40 of 2001 before the Sub Court, Sankarankoil. The learned Subordinate Judge was pleased to allow the appeal and dismissed the suit. As against the same, the plaintiff has filed the above Second Appeal.

3. The plaintiff has contended that his father Chellam Pillai @ Sivan 2/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 Pillai had purchased 2nd schedule property with half share right in the 1st schedule Well along with a North-South channel connecting the 1st and 2nd schedule properties under Exhibit A2 sale deed on 13.07.1946. According to the plaintiff, his father is entitled to half share in the 1st schedule Well and another 1/4th share belongs to the mother of the defendant, Srirangathammal and the balance 1/4th share belongs to one, Michael Ammal. Similar share is available in the electricity connection and 3 HP motor and electric room. According to the plaintiff, his father passed away leaving behind the plaintiff as his sole legal heir. The plaintiff has contended that he has been drawing water from the 1st schedule Well to the 2nd schedule property using electric motor for the past 20 years and he has also acquired title by adverse possession. The plaintiff has further contended that he was regularly paying his half share towards the electricity charges and now, the electricity to the plaintiff is free of charge.

4. According to the plaintiff, the defendant's mother Srirangathammal passed away leaving behind the defendant as the sole legal heir. Hence, the defendant is entitled to 1/4th share in the suit Well as well as in the electrical motor pumpset. The defendant started to disturb the plaintiff from drawing 3/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 water from the 1st schedule Well. Hence, the present suit.

5. The defendant filed a written statement contending that the suit 1st schedule property was originally owned by one Chinna Govinda Iyer as his ancestor's properties. His sons namely, Venkatrama Iyer and Krishna Iyer had executed two release deeds under Exhibits B1 and B2 in favour of their father on 13.06.1924 and 24.07.1925. After marriage of the said Venkatrama Iyer and Krishna Iyer, Chinna Govind Iyer executed two settlement deeds in favour of his two daughters-in-law namely, Anandhammal and Sethuammal under Exhibits B3 and B4, dated 21.08.1925.

6. According to the defendant, the said Anandhammal had executed a sale deed in favour of the defendant's mother namely Srirangathammal on 09.07.1947 under Exhibit B5. After the death of Srirangathammal, the defendant became the absolute owner of the suit schedule properties. Another daughter-in-law, Sethuammal had alienated her 1/4th share in favour of the couple, Maruthappa Thevar and Marimuthu Ammal under Exhibit B6, dated 02.04.1953. The said couple had in turn executed Exhibit B7 sale deed in favour of one, Michael Ammal. The said Sethuammal had executed 4/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 another sale deed with regard to the balance 1/4th share under Exhibit B13, dated 27.01.1986 in favour of the defendant. Hence, according to the defendant, Chinna Govinda Iyer's property is now shared by the defendant and Michael Ammal in the proportion of 3/4th and 1/4th share. According to the defendant, in Exhibits B3 and B4 it has been specifically indicated that the half share in the suit Well has been granted in favour of each one of the daughters-in-law. The defendant further contends that Exhibit B5 sale deed in favour of his mother specifically indicates about the half share in the suit Well. Exhibit B6 executed by Sethuammal in favour of Maruthappa Thevar also indicates about 1/4th share in the Well and the balance 1/4th share in the suit Well has been conveyed by Sethuammal in favour of the defendant under Exhibit B13. Hence, according to the defendant, the plaintiff or his father never owned any right in the suit Well.

7. The defendant further contended that the plaintiffs were drawing water only from the Survey No.501/8 which got silted up in the year 1980. During that period, the plaintiff requested the mother of the defendant for drawing water from the suit Well. Based upon the said request, the plaintiff was permitted to draw water from the suit Well after payment of electricity 5/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 charges at the rate of Rs.4/- (Rupees Four only) per hour. Hence, according to the defendant, prior to 1980, the plaintiff or his father were not drawing water from the suit Well. The plaintiff's family has never shared any money for purchase of the electricity motor or they were paying the electricity charges prior to 1980. Few months back, there was a shortage of water and hence, the defendant stopped the plaintiff from drawing water from the suit Well. Hence, the present suit has been filed by the plaintiff. Since the plaintiff was drawing water from the suit Well only under the permission of the defendant, he is entitled to stop it and the plaintiff does not have any legal right to seek a declaration claiming half share in the suit Well without any document whatsoever.

8. The trial Court considered Exhibit A2 sale deed in favour of the plaintiff's father. The Court also considered the mortgage deed executed by the plaintiff's father under Exhibit A3. Both in Exhibits A2 and A3, there is a reference about the half share in the suit Well. The trial Court also relied upon Exhibit A4, a certified copy of the loan register under which the plaintiff's father and the defendant's mother have jointly borrowed a sum of Rs.1000/- (Rupees One Thousand only) from the revenue authorities for the 6/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 purpose of purchasing a pumpset. The said document indicates that the 2nd schedule property is also one of the beneficiary of the proposed pumpset in the suit Well. The trial Court also relied upon Exhibit A5, which is a joint application made by the plaintiff's father, defendant's mother and Maruthappa Thevar offering their respective properties as security for the loan to be sanctioned by the authorities for the purchase of the pumpset. In the said document, a statement said to have been given by the mother of the defendant is recorded in which she admits that the plaintiff's father has got half share in the suit Well and she has got 1/4th share in the suit Well. The trial Court also relied upon the deposition of D.W.1, in which the defendant has admitted that the plaintiff has drawn water from the suit Well to his lands. The trial Court also relied upon Exhibits C1 and C2, Commissioner report and plan, in which ,a cement channel is shown to carry water from the 1st schedule suit Well to the 2nd schedule property of the plaintiff. Based upon the above said facts, the trial Court decreed the suit as prayed for.

9. The First Appellate Court found that the plaintiffs have not established their source of title of Thothatri Rao to convey a half share in the Well in favour of the plaintiff's father under Exhibit A2 sale deed. The 7/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 First Appellate Court relied upon Exhibit B29 which is a partition deed between the plaintiff's father and his brother, dated 27.05.1942. In the said document, half share has been granted in favour of the plaintiff's father to draw water from a Well located in Survey No.501/8. Hence, the First Appellate Court found that the plaintiff and his ancestor were drawing water only from Survey No.501/8 and not from 501/1 namely, the suit survey number. Though the plaintiff has contended that it was a typographical error, the First Appellate Court did not accept the said contention, on the ground that if really there was a typographical error, the plaintiff should have insisted upon a rectification deed. The First Appellate Court rejected Exhibits A4 to A6, on the ground that there are no pleadings in the plaint with regard to the said documents. Based upon the said findings, the First Appellate Court reversed the judgment and decree of the trial Court and dismissed the suit filed by the plaintiff.

10. Challenging the same, the plaintiff has filed the above Second Appeal.

11. The Second Appeal has been admitted on the following 8/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 substantial question of law:

“i) Did the lower Appellate Judge erred in not considering or appreciating the oral and documentary evidence of the Court Commissioner C1 and C2, dated 11.04.1986 and that of Exhibit C3, dated 11.04.1986 (Handwriting Expert) which clearly Government Order to show that the description of Survey No.501/8 in Exhibit A2 is only a typographical error as no such land or survey number existed and also for proving that it was in fact Smt.Srirangathammal, predecessor in interest of plaintiff's property who applied for and obtained permission from relevant authorities to put up the cement channel (duct) carrying water to plaintiff's lands, which is the main issue in the suit?”

12. The learned Counsel for the appellants/plaintiff contended that in the plaint, they specifically pleaded that his father has got half share in the suit Well and Srirangathammal has got only 1/4th share in the suit Well. Exhibits A4 to A6 have been marked only as an evidence to prove the said share and hence, the said documents cannot be discarded on the ground of no pleading. He further contended that only in the year 1955, electrical motor pumpsets were intended to be purchased and before that they were using 'Kamalai' for drawing water from the Well. The said right is reflected 9/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 in Exhibit A2 sale deed and Exhibit A3 mortgage deed. He further contended that if really the plaintiff's father did not have any right over the suit Well, he would not has been called upon to join along with the defendant's mother in borrowing loan from the Government for purchasing a pumpset. Exhibit A4 loan register clearly indicates that the suit 2nd schedule property is one of the beneficiaries of the proposed pumpset. He further contended that for getting such a loan, the defendant's mother has given a statement before the Block Development Officer to the effect that she has got only 1/4th share in the suit Well and the plaintiff's father has got half share in the suit Well. Hence, he contended that the half share right of the plaintiff's father has been admitted by the defendant's mother.

13. He further contended that Exhibits B1 to B4 are documents among the family members of Chinna Govinda Iyer. Hence, any recital in the said documents would not affect the right of the plaintiff or his father. He further contended that based upon Exhibits B1 to B4, B5 and B6 have been executed by the daughters-in-law of Chinna Govinda Iyer and hence, no importance could be assigned to the said documents. The learned Counsel for the appellants further contended that under Exhibit B6 10/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 Sethuammal has sold away all the properties falling within her share, but granting only 1/4th right in the suit Well to Maruthappa Thevar. Taking advantage of this, the defendant has purchased alleged 1/4th share in the suit Well from Sethuammal under Exhibit B13, dated 27.01.1986, without indicating for which properties the share in the Well is being sold. Hence, he contended that the documents filed on the side of the defendant will not disturb the rights of the plaintiff.

14. The learned Counsel for the appellants further contended that the defendant in his written statement has categorically admitted that the plaintiff is drawing water from the suit Well from the year 1980 onwards. But, with a caveat that he is drawing water only with a permission of the defendant. He further contended that the defendant in his deposition has also admitted about the drawing of water by the plaintiff from the suit 1st schedule Well to the 2nd schedule properties. He further contended that the Commissioner's report points out North-South cement channel originating from the suit Well and ending in the 2nd schedule property belonging to the defendant. All these factors will clearly indicate that the plaintiff and his father had got half share in the suit Well and they are entitled to draw water 11/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 from the suit Well. Hence, he prayed for allowing the Second Appeal.

15. Per contra, the learned Counsel for the respondent contended that the plaintiff has not established his source of title for making a claim of half share in the suit Well. The reference about half share in the Well in Exhibits A2 and A3 only referred to a Well in Survey No.501/8 and not with regard to the suit Well in Survey No.501/1. He further contended that Exhibits A4 and A5 documents, will not confer any right upon the plaintiff to make a claim for half share over the suit Well. He further contended that when the plaintiff has not established his right of half share in the suit 1st schedule Well by way of documents, he is not entitled to a decree for declaration and permanent injunction. Hence, he prayed for dismissal of the Second Appeal.

16. I have carefully considered the submission on either side.

17. It is the specific case of the plaintiff's father that he had purchased the suit 2nd schedule properties under Exhibit A2 on 13.07.1946 with half share rights in the suit 1st schedule property. The property covered under Exhibit A2 has been mortgaged by the plaintiff's father under Exhibit A3, 12/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 dated 14.06.1948. A perusal of Exhibits A2 and A3 indicate that the plaintiff's father has purchased a half share in the suit Well and mortgaged them. Exhibit A4 is a village loan register, dated 22.10.1954. It discloses that the defendant's mother and the plaintiff's father have jointly borrowed a loan of Rs.1000/- (Rupees One Thousand only) for the purpose of purchasing electrical motor pumpset. The said documents also indicate that the suit 2nd schedule property belonging to the plaintiff has been shown as a security for the loan and the said property is also shown as one of the beneficiary lands. There is no explanation from the side of the defendant as to the manner under which Exhibit A4 was maintained by the authorities.

18. The plaintiff has also produced Exhibit A5 which consist of a joint application made by the plaintiff's father and the defendant's mother for borrowing the above said Rs.1000/- (Rupees One Thousand only) for purchase of electrical motor pumpset. In the said statement, the defendant's mother has admitted that the plaintiff's father has got half share in the suit Well and she has got 1/4th share in the suit Well. The plaintiffs property have also been shown as a security for availing the loan. A careful perusal of these two documents will indicate that the mother of the defendant has 13/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 categorically admitted that the half share of the plaintiff's father in the suit well as early as in the year 1954. In fact, the plaintiff's property (2nd Schedule Property) has been shown as a security for availing the loan. Hence, the contention of the defendant in the written statement is that neither the plaintiff nor his father has incurred any expenses in purchase of the electrical motor pumpset is factually incorrect. In fact, the plaintiff's father has given his property as a security for availing the loan and the defendant's mother has accepted the half share of the plaintiff's father in the suit Well. Exhibit A4 loan ledger will also indicate that the plaintiff's property is also one of the lands to be benefited by the purchase of motor pumpset.

19. The First Appellate Court has rejected Exhibits A4 and A5 on the ground that there is no pleading with regard to these documents in the plaint. In the plaint, the plaintiff has specifically contended that the plaintiff's father has got half share and the defendant's mother has got 1/4th share in the suit Well.

20. Order 6, Rule 2 of the Civil Procedure Code is as follows:

"2. Pleading to state material facts and not evidence-(1) 14/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.

(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words".

21. A perusal of the above said rule will clearly indicate that the pleading should not contain the evidence by which they are going to be proved. In the present case, Exhibits A4 and A5 are the documents through which the plaintiff has attempted to prove his father's half share in the suit Well. Hence, the First Appellate Court was not correct in holding that the plaintiff has not referred to these documents in the plaint. In fact any reference to these documents is not called for under Order 6, Rule 2 of the Civil Procedure Code.

22. That apart, these two documents have been produced by the 15/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 revenue authorities and they are public documents. The defendant has pleaded that the thumb impression of his mother would have been forged in Exhibit A5 application for loan. In view of the said allegation, the documents was sent for expert opinion to be compared with an admitted thumb impression. The report of the expert has been marked as Exhibit C3 which discloses that the disputed thumb impression of the defendant's mother in Exhibit A3 correlates with the admitted thumb impression of the defendant's mother. Hence, it is clear that the defendant has attempted to wriggle out of Exhibit A5 without challenging the genuineness of the said public documents.

23. The defendant has produced Exhibits B1 to B13 claiming that the plaintiff does not have any share in the suit Well and the entire right in the suit Well belongs only to the family of Chinna Govinda Iyer. Exhibits B1 and B2 are the release deeds executed by the sons of Chinna Govinda Iyer in favour of their father. A perusal of these two documents indicate that both the sons have released their whole of their right in the suit Well (instead of half share each). This creates suspicion about the rights that were vested with the said Chinna Govinda Iyer. Based upon Exhibits B1 and B2, Chinna 16/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 Govind Iyer had executed Exhibits B3 and B4 in favour of his daughters-in- law gifting half share each in favour of his daughters-in-law. Thereafter, each one of his daughters-in-law had started alienating the properties claiming that each one of them have got half share in the suit Well. Incidentally, one of the daughters-in-law namely, Sethuammal have sold away all the properties gifted to her under Exhibit B4. Under Exhibit B6 sale deed in favour of Marthuappa Thevar. But, she had alienated only 1/4th share in the suit Well. There is no recital in the document to the effect that she is retaining the balance 1/4th share in the suit Well. It is also not known why she should retain 1/4th share in the suit Well after alienating all the properties gifted to her under Exhibit B4. This gives an indication that Sethuammal had only 1/4th share in the suit Well and another daughter-in- law Anandhammal had got only 1/4th share in the suit Well. Taking advantage of 1/4th share in Exhibit B6, the defendant has chosen to purchase the alleged balance 1/4th share in the suit Well from the legal heirs of Sethuammal under Exhibit B13.

24. There is a reference about North, South channel connecting the 1st schedule suit Well and the 2nd schedule properties of the plaintiff even under 17/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 Exhibit A2 sale deed and the said A2 sale deed is also reflected under Exhibit A3 mortgage deed. The defendant has candidly admitted in his written statement that the plaintiff was drawing water from the suit Well from the year 1980 onwards with the permission of the defendant. The Commissioner's report and plan marked as Exhibits C1 and C2 will clearly reveal the existence of the cement channel connecting 1st schedule suit Well and the 2nd schedule properties of the plaintiff. Hence, the contention of the plaintiff that the defendant was drawing water only from the year 1980 has been disproved by the recitals in Exhibits A2 and A3 documents. That apart, Exhibits A4 and A5 documents which reveal that the mother of the defendant has admitted half share of the plaintiff in the suit Well have not been properly explained by the defendants.

25. The First Appellate Court had erred in rejecting Exhibits A4 and A5 documents on the ground that they are not pleaded. The First Appellate Court had also erred in arriving at a finding that the plaintiff has not established his source of title with regard to his half share in the suit Well. The First Appellate Court has relied upon Exhibit B29 which is said to be a partition deed between the father of the plaintiff and his brother Srinivasa 18/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 Rao. According to the First Appellate Court, there is no reference about the suit Well in the partition deed. The First Appellate Court has further found that there is a reference about a Well under Exhibit B29 in Survey No.501/8. Hence, Exhibits A1 and A2 which referred to a suit Well in Survey No.501/1 cannot be believed is the finding of the First Appellate Court. A perusal of Exhibit B29 reveals that the brothers have admitted that already a partition has taken place and some of the properties have been partitioned. Exhibit B29 partition deed has been entered into only with regard to the properties that were left out in the previous partition. Hence, the conclusion arrived by the First Appellate Court that Exhibit B29 does not refer to suit Well or it refers to a different Well in Survey No.501/8 is not legally sustainable.

26. Hence, in view of the above said discussion, the question of law is answered as follows:

(i) The First Appellate Court had erred in over-looking the Commissioner's report and plan under Exhibits C1 and C2 and also the report of the expert evidence under Exhibit C3 in connection with the genuineness of Exhibit A5. The First Appellate Court had erred in not properly appreciating these documents.

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27.The appellant has filed an application under C.M.P(MD)No.12294 of 2019 seeking to file an additional evidence which was filed before the First Appellate Court and rejected by the First Appellate Court. The said document is a mortgage which is said to have been executed by the plaintiff's father in favour of another Thothatri Rao. This Court has come to a conclusion that the plaintiff has to establish his right based upon the documents filed before the Courts below, the document now presented as additional evidence is not necessary for the disposal of the Second Appeal. Hence, C.M.P(MD)No.12294 of 2019 stands dismissed.

28. In view of the above said discussion, the substantial question of law is answered in favour of the appellant. The Second Appeal stands allowed. The judgment and decree of the First Appellate Court is set aside and the judgment and decree of the trial Court is restored. No costs.




                                                                                    10.02.2022

                     Index    : Yes / No
                     Internet : Yes / No
                     btr


                     20/22
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                                                                                   S.A.No.287 of 2003




                     Note :

In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

1.The Sub Judge, Sankarankoil.

2.The Additional District Munsif Court, Sankarankoil.

3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.

21/22 https://www.mhc.tn.gov.in/judis S.A.No.287 of 2003 R.VIJAYAKUMAR,J.

btr Judgment made in S.A.No.287 of 2003 10.02.2022 22/22 https://www.mhc.tn.gov.in/judis

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