Madras High Court
Geegee Bai vs U.Rajambu on 17 July, 2018
Author: V.M.Velumani
Bench: V.M.Velumani
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.07.2018
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
S.A.No.356 of 2018
and C.M.P.No.9949 of 2018
K.Varadappa Naidu (deceased)
1.Geegee Bai
2.V.Subash
3.V.Balaji
4.V.Logendra Prasad .. Appellants
Vs.
U.Rajambu .. Respondent
PRAYER: Second Appeal is filed under Section 100 of C.P.C against the judgment and decree dated 17.07.2017 made in A.S.No.25 of 2015 on the file of the Sub Court, Arakkonam, confirming the judgment and decree dated 10.12.2014 made in O.S.No.84 of 2009 on the file of the District Munsif Court, Sholinghur.
For Appellants : Mr.N.Manokaran
For Respondent : Mr.A.Gouthaman
J U D G M E N T
Second Appeal is filed against the judgment and decree dated 17.07.2017 made in A.S.No.25 of 2015 on the file of the Sub Court, Arakkonam, confirming the judgment and decree dated 10.12.2014 made in O.S.No.84 of 2009 on the file of the District Munsif Court, Sholinghur.
2.The appellants are legal heirs of one K.Varadappa Naidu, the defendant in O.S.No.84 of 2009 on the file of the District Munsif Court, Sholinghur. They are challenging the concurrent findings of the Courts below. The respondent/plaintiff filed the said suit for declaration to declare his easementary right over the suit channel to take water to irrigate plaint A Schedule lands through the channel in between points ABC as shown in the plaint plan and which is described in the plaint B Schedule; for a mandatory injunction against the defendant/father of the appellants, directing him to restore the channel obliterated by him in between points ABC as shown in the plaint plan to its original position and which is described in C Schedule and for a direction to the defendant to pay to the respondent the future damages that will be sustained by the respondent on due separate enquiry with regard to it under Order XX Rule 12 of C.P.C as damages caused to him for obliteration of C Schedule channel by the defendant.
2(a).According to the respondent, one Chinna Kondama Naidu had three sons, namely K.Varadappa Naidu, the defendant herein, K.Chinnappa Naidu, vendor of the respondent and K.Venkata Rathinam Naidu. They partitioned the joint family properties by the deed of registered partition dated 19.12.1979. As per the said partition, K.Chinnappa Naidu was allotted B Schedule property in the partition which is described as A Schedule property in the plaint schedule. The property allotted to K.Chinnappa Naidu, vendor of the respondent was together with mamool channel to irrigate the water to his land. K.Chinnappa Naidu, by the deed of sale dated 02.04.1997, sold item Nos.1 to 9 together with = share in the well, 5 H.P electric motor and pumpset bearing electric service connection No.22 to the respondent for valid consideration and delivered possession of the land.
2(b).He also sold item Nos.10 to 13 in the plaint A Schedule properties among other properties to one V.Bakthavatchalu Naidu, by sale deed dated 03.10.2000 bearing document No.1061/2000 and delivered possession of the said properties to V.Bakthavatchalu Naidu. The said V.Bakthavatchalu Naidu in turn sold item Nos.10 to 13 to the respondent by the sale deed dated 02.04.2007 for valid consideration and handed over possession on the same day. From the date of purchase, the respondent is in possession and enjoyment of the property by exercising all his right of ownership. The said K.Chinnappa Naidu also sold item No.14 of the A Schedule property to his daughter B.Sharmila by the sale deed dated 03.10.2000, bearing document No.1062/2000. From the date of purchase, she was in peaceful possession and enjoyment of the same. She in turn sold item No.14 of the plaint A Schedule to the respondent for valid consideration by the deed of sale dated 02.04.2007. The respondent is in peaceful possession of the same by taking up water and cultivating the lands with mamool channel. One year before filing of the suit, the defendant obliterated the mamool channel described in the Schedule C to the plaint.
2(c).The defendant formed temporary channel and promised to restore the mamool channel which was on the western side, but obliterated the temporary channel also. Chinna Kondama Naidu, father of the defendant settled the property allotted to him in the partition deed on his daughter Selli ammal. In the settlement deed allotted, mamool channel is mentioned. The respondent, defendant and his brother all were witnesses to the said settlement deed. The defendant being a witness to the settlement deed, is estopped from denying the existence of mamool channel. The respondent has easementary right to take water through mamool channel and defendant has no right to prevent the respondent from taking water from the mamool channel.
3.The defendant filed written statement and denied all the averments in the plaint. According to the defendant, the plan filed by the respondent is not correct. It is different from F.M.B plan. The partition mentioned by the respondent is correct, but there is no existence of mamool channel. Selli ammal sold the property settled on her by her father, Chinna Kondama Naidu to the defendant by deed of sale dated 06.12.1988 and there is no mentioning of ABC channel in the said sale deed. The respondent is entitled to only 15 cents in Survey No.469/4B, but K.Chinnappa Naidu sold 17 cents to the respondent. The defendant has right over 1 cent in the said Survey number.
3(i).The respondent and defendant entered into an agreement dated 21.12.2008, wherein the respondent agreed to take water for one season only. In view of the said agreement, the respondent is estopped from claiming right to take water. The respondent is estopped from claiming easementary right and suit is not maintainable. The defendant issued notice dated 08.01.2008 to the respondent as the respondent claimed full right over the suit well and was trying to take water to other land than what he purchased from the defendant's brother K.Chinnappa Naidu. The respondent did not send any reply. Both the respondent and defendant filed caveat.
4.The respondent filed rejoinder to the written statement filed by the defendant and contended that agreement of sale dated 21.12.2008 is not for the suit channel. It is for temporary channel put up on the eastern side to protect the crops standing in the respondent's land. The respondent did not sign first page of agreement. The defendant agreed to restore the mamool channel obliterated by him in April 2008, but obliterated the temporary channel also.
5.The defendant filed additional written statement and contended that respondent only signed the agreement and obtained signature of witness. The respondent has no right over ABC channel and respondent requested only for temporary injunction for one season only and the respondent filed reply to additional reply statement and denied all the averments made therein.
6.Based on the above pleadings, the learned Judge framed necessary points for consideration. Before the learned Judge, the respondent examined himself as P.W.1, K.Chinnappa Naidu, his vendor as P.W.2 and K.Marimuthu as P.W.3 and marked 9 documents as Exs.A1 to A9. The defendant examined himself as D.W.1 and two others as D.Ws.2 and 3 and marked 5 documents as Exs.B1 to B5. The Advocate Commissioner's report, plan and notice were marked as Court documents viz., Exs.C1 to C3.
7.The learned Trial Judge considering the pleadings, oral and documentary evidence and the report and sketch of the Advocate Commissioner, decreed the suit, holding that respondent has proved the existence of mamool channel and his right to take water from mamool channel.
8.Against the said judgment and decree dated 10.12.2014, the deceased defendant has filed A.S.No.25 of 2015. The learned I Appellate Judge framed necessary points for consideration. The learned I Appellate Judge considering the materials on record and judgment of the Trial court, dismissed the appeal.
9.After passing judgment in First Appeal and before filing this Second Appeal, the defendant died. Against the judgment and decree dated 17.07.2017 made in A.S.No.25 of 2015, the legal heirs of the defendant have come out with the present Second Appeal.
10.The respondent filed caveat. By consent of both the learned counsel for the appellants and respondent, the Second Appeal itself is taken up for hearing.
11.The learned counsel for the appellants contended that the respondent did not have any easementary right to take water through mamool channel as claimed by him. The respondent requested the defendant to permit him to take water for one season to cultivate the land. The agreement dated 21.12.2008 which was marked as Ex.B1 was entered into. The defendant formed temporary channel on the eastern side. The respondent took water and cultivated for one season. After that, the temporary channel was obliterated. In view of Ex.B1, the respondent is estopped from claiming easmentary right to take water from the mamool channel.
11(i).The Courts below failed to properly appreciate oral and documentary evidence let in by the defendant. In the sale deed marked as Ex.B5, executed by Selli ammal, the sister of the defendant in favour of the defendant, mamool channel was not mentioned. In Exs.A1 to A5, the mamool channel was mentioned. The Courts below misconstrued the same as suit water channel. In Exs.A1 to A5, no specific right was given to take water through disputed portion of the suit property. The respondent cannot claim right based on the undisclosed easementary right. The respondent has owned only = share in the Survey No.469/4B. He purchased only 15 cents out of 17 cents from K.Chinnappa Naidu. The well is located in the remaining two cents. The defendant has purchased common 1 cent out of 2 cents. There is no channel was and is in existence in Survey No.469/4C. The conclusion of Courts below that the respondent was granted right to take water as per Exs.A1 to A5 is not correct.
11(ii).The learned counsel for the appellants in support of his contentions, relied on the judgment reported in 2013-5- LW 156 (Arumugam Mooper (died) and others Vs. K.Arumugham @ Periyasamy and others):
23.If there is specific proof to the effect that for over 20 years continuously a land has been used as pathway or cart track then in that case, the party concerned would be justified in asserting his right of easement by prescription over that land. But absolutely there is no share or shred, jot or molecular, iota or minuscule extent of evidence in that regard.
12.The respondent filed caveat. The learned counsel for the respondent contended that the respondent has let in both oral and documentary evidence to prove the existence of mamool channel and the fact that he was taking water from the date of his purchase till the defendant obliterated the mamool channel in April 2008. The defendant as well as the witnesses examined on behalf of the defendant admitted the existence of mamool channel and respondent was taking water from the well to his land through the mamool channel. The respondent, the defendant, the defendant's brother signed settlement deed, executed by Chinna Kondama Naidu in favour of his daughter Selli ammal. In the said document, mamool channel has been mentioned. Having signed the settlement deed as witness, the defendant and his legal heirs, the appellants herein are not entitled to dispute the existence of mamool channel. Ex.B1 was executed as a temporary arrangement as the crops cultivated by the respondent urgently required water. The defendant formed temporary channel on the eastern side and promised to restore the mamool channel on the western side. In view of the temporary arrangement, the respondent is not estopped from claiming easementary right. There is no error of law warranting interference by this Court and the Second Appeal is liable to be dismissed.
13.Heard the learned counsel for the appellants as well as the respondent and perused the materials available on record.
14.The respondent filed suit claiming easementary right to take water from the well situated in Survey No.469/4A, belonging to him to his lands in other survey numbers described in the plaint A Schedule property through mamool channel described in C Schedule property. The respondent has claimed such a right on the ground that his predecessor in title as well as he was taking water through the C Schedule property mamool channel from the date of his purchase. On the other hand, the defendant denied the very existence of mamool channel. He contended that the respondent or his predecessor did not have any such right. The respondent requested the defendant to permit him to take water to cultivate his land for one season in order to protect his crops. The defendant agreed for the same and an agreement dated 21.12.2008, marked as Ex.B1 was entered into. As per the said agreement, the defendant formed a temporary channel on the eastern side and after respondent took water for one season, the said temporary channel was obliterated. In view of Ex.B1, the respondent is estopped from claiming easementary right.
15.Before the learned Trial Judge, the respondent marked Exs.A1 to A5, partition deed and sale deeds, wherein the existence of mamool channel was mentioned. The respondent examined himself as P.W.1 and examined his vendor, K.Chinnapa Naidu, who is the brother of the defendant and one K.Marimuthu as P.Ws.2 and 3 and proved the existence of the mamool channel and easementary right to take water through the mamool channel to his land. The witness of respondent has spoken to the obliteration of the mamool channel by defendant in April 2008. The defendant as D.W.1 had admitted the existence of mamool channel and D.Ws.2 and 3, the witnesses examined on behalf of the defendant also admitted the existence of mamool channel and the fact that the respondent and his vendor were taking water through the said mamool channel. Father of the defendant and vendor of the respondent, K.Chinnappa Naidu settled the property allotted to him in favour of his daughter Selli ammal. In the said settlement deed, the existence of the mamool channel was mentioned. The respondent, the defendant and his brother, K.Chinnappa Naidu signed the said settlement deed as witnesses. The defendant as D.W.1 has admitted the existence of mamool channel. D.W.2 has also admitted the existence of mamool channel and the same was used by the respondent. D.W.2 in his cross examination has stated that mamool channel was obliterated by using tractor.
16.The Courts below considering the partition deed, sale deeds, settlement deed and oral evidence, rejected the contention of the defendant. Considering the recitals in Ex.B1, the Courts below have held that it is only a temporary arrangement and the contention of the respondent that defendant agreed to restore the mamool channel is acceptable. The respondent has produced document to show that he purchased from K.Chinnappa Naidu by registered sale deed = share in the well situated in Survey No.469/A together with 5 H.P electric motor and pumpset bearing electricity service connection No.22. This also shows that K.Chinnappa Naidu was having right over the mamool channel and he sold the land together with easementary right to the respondent.
17.Both the Courts below have appreciated the facts in proper perspective and held that the respondent is entitled to the relief as prayed for. In view of the above, the judgments relied on by the learned counsel for the appellants is not applicable to the facts of the present case. There is no error of law in the judgments of the Courts below warranting interference by this Court. No question of law much less than the substantial question of law has arisen in this Second Appeal.
18.In the result, this Second Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
17.07.2018 Index :: Yes Speaking Order :: Yes/No gsa To 1.The Subordinate Judge, Arakkonam. 2.The District Munsif, Sholinghur. V.M.VELUMANI, J. gsa S.A.No.356 of 2018 and C.M.P.No.9949 of 2018 17.07.2018