Madras High Court
Abhimanyu vs Ganapathy Thevar on 6 August, 2007
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/08/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD).No.465 of 1997 1.Abhimanyu 2.Durairaj Naicker 3.Murugan ... Appellants Vs. 1.Ganapathy Thevar 2.Panneer 3.Ayyathurai Pillai ... Respondents Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and decree dated 3.12.1996 passed in A.S.No.80 of 1994 on the file of the Sub Court, Tuticorin, reversing the judgment and decree dated 30.4.1993 passed in O.S.No.465 of 1991 on the file of the Principal District Munsif Court, Tuticorin. !For Appellants ... Mr.K.Govi Ganesan ^ :JUDGMENT
The plaintiffs in the original suit before the trial Court are the appellants herein. The appellants herein filed the above said original suit on the file of the Principal District Munsif, Thoothukudi praying for permanent injunction restraining the respondents herein/defendants in the original suit from in any manner interfering with the appellants'/plaintiffs' peaceful possession and enjoyment of the suit properties.
2. According to the appellants/plaintiffs, the defendants, who had no manner of right or easement over the suit properties, were making hectic efforts to take water through the suit property belonging to the appellants/plaintiffs and hence, they were constrained to approach the trial Court for the above said relief of permanent injunction to safeguard their peaceful possession and enjoyment of the suit properties. The claim was resisted by the respondents/defendants. It is the contention of the defendants that the suit properties on the west, there is a tank called 'Panneerkulam Village north tank' in Survey No.311; that the said tank is feeded by the rain water that flows through a stream from Thennampattimall; that the said stream runs through various lands to a distance of 1000 metres and then it runs on the southern part of the suit survey number to a distance of 500 metres and then reaches the public tank belonging to the Government; that the said tank irrigates about 48 acres of wet land belonging to 100 Ayacutdars and that the said stream has been renovated by Kayatthar Panchayat Union under Jawahar Employment Scheme. The further contention of the defendants is that the plaintiffs tried to prevent the flow of rain water into the said tank by constructing a bund across the said stream and diverting the said water into a private tank sought to be constructed in their patta land; that after the said matter was brought to the notice of the Revenue Authorities by a complaint by the Ayacutdars, the father of the appellants/plaintiffs gave an undertaking not to prevent the free flow of excess rain water into the said tank through the land of the plaintiffs and that the appellants/plaintiffs, suppressing the above said facts, have approached the Court for a permanent injunction as if their right to peaceful enjoyment of their lands is being interfered with. They also resisted the suit on the plea of non-joinder of necessary parties so far as the Ayacutdars of the public irrigation tank were not made parties to the suit.
3. As many as five issues were framed by the trial Court and in the trial that followed two witnesses were examined and six documents were marked as Exs.A-1 to A-6 on the side of the appellants/plaintiffs. Three witnesses were examined and three documents were marked as Exs.B-1 to B-3 on the side of the respondents/defendants. The reports and plans submitted by the Advocate Commissioner have been marked as Exs.C-1 to C-4. At the conclusion of trial, the learned District Munsif found all the issues in favour of the appellants/plaintiffs and decreed the suit as prayed for with cost by its judgment and decree dated 30.04.1993. As against the said judgment and decree of the trial Court, the respondents herein/defendants filed an appeal before the lower appellate Court, namely Sub Court, Thoothukudi in A.S.No.80 of 1994.
4. The learned Subordinate Judge, after hearing both sides, came to the conclusion that the existence of a stream from Thennampattimall to the Public tank in survey No.311 has not been established. However, the learned Subordinate Judge has held that the lands sloped from east to west and the rain water flows towards west from Thennampattimall through various lands and at last through the land in Survey No.309 belonging to the appellants and then reaches the public tank; that the right to have the free flow of excess rain water through the lands belonging to various persons including the land of the appellants/plaintiffs in Survey No.309 between Thennampattimall and the public irrigation tank is a customary right; that the appellants/plaintiffs do not have a right to obstruct the free flow of excess land water interfering with the above said customary easement; that as per the admission of the father of the plaintiffs, they had constructed a bund with the aim of preventing the free flow of excess rain water into the tank and diverting the same to a private tank sought to be constructed by the appellants/plaintiffs; that hence their right of enjoyment of the above said suit lands is subject to the above said customary easement and that since the plaintiffs have approached this Court suppressing the existence of the above said customary easement and sought for injunction against the defendants, the plaintiffs should be non-suited for the relief. The learned Subordinate Judge has also non-suited the plaintiffs on the ground of non-joinder of necessary parties, based on his finding that all the Ayacutdars of the said tank in Survey No.311 are entitled to the above said customary easement of free flow of excess rain water through the suit land and that the non-joinder of Ayacutdars either individually or in collectivity represented by their representatives is fatal to the plaintiffs' case. On both the grounds, the learned Subordinate Judge non-suited the plaintiffs and thus allowed the appeal, set aside the decree passed by the Principal District Munsif, Thoothukudi and dismissed the original suit filed by the plaintiffs.
5. Aggrieved by and challenging the said judgment and decree of the lower appellate Court, the appellants/plaintiffs have come forward with this second appeal.
6. This Court heard the arguments advanced by Mr.K.Govi Ganesan, learned counsel on behalf of the appellants and perused the records available on record, including the judgments of the lower Courts.
7. The plaintiffs are brothers. The properties described in the plaint schedule were purchased by the plaintiffs on one and the same date under three sale deeds - Exs.A-1 to A-3. There is no dispute, whatsoever, regarding the title of the plaintiffs in respect of the suit properties which are comprised in various sub-divisions of Survey No.309 of Panneerkulam Village. The plaintiffs have come forward with the suit based on the allegations that the defendants did not have any right to take water through the suit land belonging to the plaintiffs and that they were trying to take water through the plaint schedule properties and thus caused interference with the peaceful possession and enjoyment of the plaintiffs in respect of the suit properties. The plaintiffs have not made it clear in their plaint as to where from the defendants want to take water through the suit lands and to what destination the water was sought to be drawn. On the other hand, the respondents/defendants have made a contention that the public tank in Survey No.311 is feeded by the rain water that flows from Thennampattimall through various lands including the plaint schedule properties as a stream; that the said course of water feeding the tank was sought to be obstructed by the plaintiffs' father even before the appellants/plaintiffs purchased the suit properties which made the Ayacutdars of the above said public tank to move the Revenue Authorities; that before the Revenue Authorities, the father of the plaintiffs gave an undertaking in writing not to cause obstruction to the free flow of water into the tank and that suppressing the above said material facts, the appellants/plaintiffs have filed the suit. Of course, it was the contention of the defendants before the trial Court that the water from Thennampattimall reaches the tank through a defined course which runs through various fields and on the southern part of the suit properties before it reaches the tank. This particular stand taken by the defendants has been negatived by the trial Court as well as the first appellate Court.
8. (1) Whether the judgment of the lower appellate Court is erroneous, perverse, not supported by evidence on record and based in misconception? (2) Whether the lower appellate Court has misconceived the pleadings in the written statement and whether the lower appellate Court is right in putting forth a special plea on behalf of the defendants?
(3) Whether the suit for permanent injunction is bad for non joinder of the other Ayacutdars of Pannirkulam North Tank?" - are the substantial questions of law, according to the appellants, involved in this second appeal.
9. The learned counsel for the appellants in his argument submitted that the lower appellate Court had assumed a pleading of customary easement on behalf of the respondents/defendants and gave a finding to the effect that the rain water collected in the upper strata, namely Thennampattimall used to flow towards west through various lands before it reaches the suit lands of the plaintiffs and then the same flows into the public tank in Survey No.311; that the said finding was also one of the grounds for non-suiting the appellants/plaintiffs for the relief sought for by them; that the said approach made by the learned Subordinate Judge, according to the learned counsel for the appellants, was erroneous and hence liable to be interfered with and set aside in this second appeal.
10. After going through the records in this regard, this Court is not in a position to accept the above said contention of the learned counsel for the appellants. Even though the defendants might have taken a stand in their written statement that the rain water used to flow as a stream to a distance of 1500 metre from Thennampattimall to reach the irrigation tank in Survey No.311, the crux of their contention seems to be that the said irrigation tank is entitled to the free flow of rain water from the upper strata land in Thennampattimall through the lands including the suit scheduled lands lying in between Thennampattimall on the east and the irrigation tank on the west; that the said right is a customary right belonging to the Ayacutdars of the above said public irrigation tank and that the plaintiffs who wanted to obstruct the free flow of water into the public irrigation tank had come forward with the suit for bare injunction. Giving a literal meaning to the text of the pleading shall not be appropriate. The real connotation of the entire pleading should be taken into account to decide what exactly is the plea of the party concerned. In this case, though the defendants might have taken a specific plea that the rain water flows into the irrigation tank in a stream that runs in a defined course, it cannot be denied that the said plea incorporates in it the plea that the excess rain water used to flow into the irrigation tank through the patta lands belonging to various persons including the suit properties lying in between Thennampattimall and the public irrigation tank. That being so, it is very hard to accept the contention of the learned counsel for the appellants that the learned Subordinate Judge himself putforth a plea of customary right of the Ayacutdars to get free flow of excess rain water into the public irrigation tank. In fact, it is quite clear from Exs.B-1 and B-2 that the plaintiffs' father, even before the suit properties were purchased by the plaintiffs, after entering into an agreement with the then owners of the suit properties made an attempt to raise the bund with the aim of preventing the free flow of excess rain water after spilling over the lands in between Thennampattimall and the irrigation tank in Survey No.311 with the intention of diverting the water into a private tank sought to be constructed by him; that in spite of his attempt, the water flew into the irrigation tank after breaching the said bund; that the Ayacutdars of the above said irrigation tank gave a complaint to the Revenue Authorities based on which a Peace Committee Meeting was convened; that as an outcome of the conciliation made before the Tahsildar, the father of the plaintiffs made an undertaking in writing not to prevent the flow of water into the public irrigation tank, of course, as a temporary measure to avoid law and order situation till he obtains permission from the Government for constructing a private tank in his land for the irrigation of his other lands and that only thereafter, the plaintiffs purchased the suit lands and filed the suit for injunction.
11. A conjoint reading of the above said materials and pleadings will show that the crux of the pleadings made by the defendants is that the free flow of rain water through the lands of various persons lying in between Thennampattimall and the irrigation tank in Survey No.311 should not be interfered with. This plea has been interpreted by the learned first appellate Judge (Subordinate Judge) to mean a customary right of the Ayacutdars. This Court finds nothing wrong in the said interpretation made by the learned first appellate Judge (Subordinate Judge) and that there is no infirmity or discrepancy in the said finding of the lower appellate Court. Therefore, the above said contention of the learned counsel for the appellants deserves to be discountenanced.
12. Even assuming that the defendants' pleading could not be interpreted to mean a plea of customary right of the Ayacutdars to have the unobstructed free flow of excess rain water from Thennampattimall to the public irrigation tank in Survey No.311, the judgment and decree of the lower appellate Judge (Subordinate Judge) has got to be confirmed in view of its finding that the suit is not maintainable, as it is bad for non-joinder of necessary parties. It has been pointed out supra that the dispute regarding the flow of water from Thennampattimall to the public irrigation tank in Survey No.311 has arisen between the father of the plaintiffs and all the Ayacutdars even before the suit properties were purchased by the plaintiffs and at a time when only an agreement for purchasing the same had been entered into between the father of the plaintiffs and the then owners of the suit lands. As a law and order situation arose, there was a peace committee meeting convened by the Revenue Authorities in which the father of the plaintiffs gave a written undertaking not to obstruct the flow of water into the public irrigation tank, no doubt as a temporary measure till he could get permission from the Government for constructing a private tank in his land. The said facts make it abundantly clear that not only the defendants but also all the Ayacutdars who are about 100 in number are the persons whose rights will be adversely affected if the plaintiffs' plea is accepted. In fact, all the Ayacutdars raised an objection when the plaintiffs' father made an attempt to construct a private tank and prevent the flow of water into the public irrigation tank in Survey No.311. In fact, the Ayacutdars of Panneerkulam Village have formed a society and got it registered in 1983 itself.
13. In the above said circumstances, despite the fact that the Ayacutdars chose to resist the attempt made by the plaintiffs' father to interfere with the natural flow of water to the public irrigation tank in Survey No.311, the appellants/plaintiffs have not chosen to make them parties in the suit. In fact, this has been raised as one of the main grounds of attack in the written statement filed by the respondents/defendants and an issue has also been framed in this regard. When the plaintiffs' right to obstruct the flow of rain water into the public irrigation tank by putting up additional artificial barriers happens to the main point in controversy, the plaintiffs should have made the Ayacutdars, either individually or as a body of persons represented by some of them after getting the permission of the Court to sue them in representative capacity, as parties to the suit. Since the plaintiffs have chosen not to do so, despite the fact that the same was raised as a plea in the written statement, the finding of the lower appellate Court that the suit is bad for non-joinder of necessary parties is well founded. This Court finds no reason, whatsoever, to interfere with the same. The crux of the question projected by the appellants as the first substantial question of law is that the finding of the lower appellate Court regarding the right of the Ayacutdars to have the natural flow of water into the public irrigation tank is perverse. To say a finding perverse, it should have been made based on no legally admissible evidence or that no reasonable person would have arrived at such conclusion on the strength of the available evidence. This Court is unable to accept the contention of the appellants that the said finding of the lower appellate Court is perverse so as to warrant interference in this second appeal with the finding on a question of fact. There are ample evidence both oral and documentary supporting the said finding of the lower appellate Court. Therefore, this Court is of the considered view that all the substantial questions of law raised by the appellants in this second appeal have to be decided against the appellants and accordingly, they are answered against the appellants. There is no merit in the second appeal. This Court finds no reason, whatsoever, to interfere with the well considered judgment of the lower appellate Court and the same has got to be confirmed.
14. In the result, this Second Appeal is dismissed. No costs.
SML To
1.The Sub Court, Tuticorin.
2.The Principal District Munsif Court, Tuticorin.