Madras High Court
T.M.Subbiah vs Athi V.Sathiah
Author: R.Pongiappan
Bench: R.Pongiappan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
20.06.2019 20.08.2019
CORAM
THE HONOURABLE MR. JUSTICE R.PONGIAPPAN
S.A Nos.16 and 17 of 2001
S.A No.16 of 2001
1.T.M.Subbiah
2.T.VR.Sathiah ... Appellants / Respondents 1 and 2 /
Plaintiffs
(For themselves and as representatives
of Riots of Vellipatti Village)
Vs.
1.Athi V.Sathiah
2.Athi S.Kannan
3.P.S.Sathan
4.Athi A.Chelliah
5.Athi S.Chelliah
6.Athi S.Chokalingam ... Respondents/Appellants/
Defendants 1 to 6
(For themselves and as representatives of
Pillangudi and Kannuthope villagers)
7.The Block Development Officer,
Sakkottai, Sivaganga District.
8.The Administrative Engineer,
Public Works Department,
Karaikudi.
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2
9.The District Collector,
Sivaganga District,
Sivaganga. ... Respondents/ Respondents 3 to 5/
Defendants 7 to 9
PRAYER: Appeal filed under Section 100 of Civil Procedure Code, against
the Judgment and Decree dated 30.06.1999 in A.S.No.7 of 1999 on the file
of the learned Subordinate Judge, Devakottai reversing the judgment and
decree dated 08.12.1998 in O.S.No.25 of 1998 on the file of the learned
District Munsif, Devakottai.
For Appellants : Mr.A.L.Ganthimathi
For R-1 to R-6 : Mrs.M.Parameswari
for Mr.V.Maninarayanan
For R-7 to R-9 : No appearance
S.A No.17 of 2001
1.K.R.Subramanian
2.R.S.Periyakaruppan ... Appellants/Respondents 1 and 2/
plaintiffs
(For themselves and the riots of Pirambuk kanvoi,
living in Sivalangudi and Peruthangudi)
Vs.
1.A.K.Vellaikannu
2.A.U.Sathan
3.A.T.Sellakannu
4.S.Karuppiah ... Respondents/ Appellants/
Defendants 1 to 4
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5.The Block Development Officer,
Sakkottai, Sivaganga District.
6.The Administrative Engineer,
Public Works Department,
Karaikudi.
7.The District Collector,
Sivaganga District,
Sivaganga. ...Respondents/ Respondents 3 to 5/
Defendants 7 to 9
PRAYER: Appeal filed under Section 100 of Civil Procedure Code, against
the judgment and decree dated 30.06.1999 in A.S.No.10 of 1999 on the file
of the learned Subordinate Judge, Devakottai reversing the judgment and
decree dated 08.12.1998 in O.S.No.15 of 1997 on the file of the learned
District Munsif, Devakottai.
For Appellants : Mr.A.L.Ganthimathi
For R-1 to R-4 : Mrs.M.Parameswari
for Mr.V.Maninarayanan
For R-5 to R-7 : No appearance
COMMON JUDGMENT
These appeals are directed against the common Judgment and Decree dated 30.06.1999 passed in A.S.Nos.7 and 10 of 1999 on the file of the learned Subordinate Judge, Devakottai.
http://www.judis.nic.in 4 S.A No.16 of 2000
2.Previously the appellants herein filed a suit as against the respondents, in O.S.No.15 of 1998 on the file of learned District Munsif, Devakottai, seeking the relief of permanent injunction restraining the defendants/ respondents from interfering with the flow of water went through south-north and east-west channel and went up to Pirambuvayal tank. Further for restraining the defendants not to put up the barrage in the channel leads to Pirambuvayal tank. By judgment and decree dated 08.12.1998, the learned District Munsif, Devakottai, granted the decree of permanent injunction restraining the defendants from interfering with the flow of water ran up to Pirambuvayal tank. Aggrieved over the same, the defendants 1 to 6 preferred an appeal before the learned Subordinate Judge, Devakottai in A.S.No.10 of 1999. The learned Subordinate Judge, Devakottai, by judgment and decree dated 30.06.1999, had allowed the appeal and set aside the decree passed by the learned District Munsif, Devakottai. Feeling aggrieved over the same, the plaintiffs in the suit are before this Court with the present second appeal.
S.A.No.17 of 2001
3.Before the trial Court the appellants in this appeal filed a suit as against the defendants in O.S.No.15 of 1998 on the file of the learned http://www.judis.nic.in 5 District Munsif, Devakottai, seeking the relief of permanent injunction restraining the defendants from interfering with the flow of waste water came from Vellipatti, Kokaniyendal and Vemaniyendal in reaching Pirambuvayal tank. Further from restraining the defendants not to put up the barrage in the channel leads to Pirambuvayal tank. The learned District Munsif, Devakottai, by judgment and decree dated 08.12.1988, had allowed the suit in favour of the plaintiffs and passed the decree as prayed for.
4.Against the said findings, the defendants 1 to 6 preferred an appeal before the learned Subordinate Judge, Devakottai, in A.S.No.7 of 1999 praying to set aside the decree granted by the learned District Munsif. The learned Subordinate Judge, by judgment and decree, dated 30.06.1999, allowed the appeal and set aside the decree passed by the learned District Munsif, Devakottai. Feeling aggrieved over the same, the appellants who are the plaintiffs in the suit are before this Court with the present second appeal.
5.For the sake of convenience, the parties are referred to as, as described before the trial Court.
6.The averments made in the plaint in O.S.No.15 of 1998, in brief are as follows:-
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(i) The suit has been filed by the plaintiffs for themselves and on behalf of the people, who are residing in Vellipatti and Kannuthope. There was a small tank situated in west of the Vellipatti in north south directions.
On the eastern side of the said tank, an agricultural land measuring an extent of 60 acres belongs to the plaintiffs and others, are situated. The over flow water went to the Vemaniyendal tank through point 'D' as mentioned in the rough plan. Similarly in the Vemaniyendal tank there was a point mentioned as 'C' in the rough sketch, is available for draining the over flow water. Since the Vempaniyendal tank is having joint Ayyakattu, the waste water will come to Vellipatti to the point 'D'. Similarly the waste water has reached the Vellipatti small tank through point 'G' of the rough sketch. In the same way to the Vempaniyendal south lake through point 'C' and through point 'K' the waste water will reach the Vellipatti channel . In between the Vempaniyenthal south tank and Vellipatti north-south road there was no bund. From time immemorial, the waste water drained from the land of Vellipatti reached the Pirambuvayal small tank through Pirambu channel.
(ii) In the Prembu channel, the defendants are not having any rights and title. Since there was a cross pond was put up 'P' point, there is no flow of water to the Pirambuvayal tank. To remove the cross pond, the people residing in the plaintiffs' village submitted a complaint before the Revenue Divisional Officer. When at the time of inspecting the field, the village http://www.judis.nic.in 7 people belong to the defendants came and assaulted the people who are assembled in that area. On 16.12.1993, the defendants and their village people had unlawfully assembled and put up a cross pond in the size of 50 feet x 2 feet in Pirambu channel. The said portion was shown as 'P' point in the rough sketch. Due to that, the water stagnated in 'G' point. Ultimately, the water stagnated in the field belongs to the plaintiffs. There was stagnation of water in agricultural product value about two lakhs become putrefied. Now, the defendants are attempted to close the east- west Pirambu channel. Hence, the suit.
7.The averments made in the written statement filed by the fifth defendant in O.S.No.15 of 1998 and adopted by the defendants 1, 4 and 6 in brief, are as follows:-
The suit is bad for non-joinder of necessary party. On the complaint given by the defendants, the Revenue Divisional Officer conducted an enquiry and instructed the plaintiff not to disturb the water ways. The details found in the rough sketch annexed with the plaint, is not correct. As per the village accounts, the waste and excess water from the Vellipatti tank reached the Vemaniyendal tank. After overflowing the same, the surplus water reached the Periyakottai tank through Vemalipalli Ayyanar temple tank. The plaintiffs without getting any permission from the Government, in order to block the water source, put up a channel. The defendants have not http://www.judis.nic.in 8 constructed any barrage. There is no necessity for them to put up the barrage. The plaint mentioned 'J' Pirambu channel is not in existence. Only based on the complaint given by the defendants, the revenue official removed the encroachments. In support of Sevalankudi and Perunthankudi village, the plaintiffs broke the bund of defendants. The revenue officials after inspecting the field, directed the plaintiffs to restore the damages. The actual situation found in the occurrence place, is entirely different from the particulars available in the documents. It is not correct to say that the plaintiffs put up the cross pond. Further, the defendants have not encroached the agricultural land to an extent of 10 acres. According to the defendants, the suit filed by the plaintiffs, is liable for dismissal.
8.The averments made in the written statement filed by the ninth defendant in O.S.No.15 of 1998, in brief are as follows:-
The prayer sought by the plaintiffs is an assumption. The description of the property found in the plaint, is not correct. The surplus water from Vellipatti tank reached the Vemaniyendal tank through S.F.Nos. 7/11, 6/5, 14/8, 13 and 91/1. The surplus water drained from Vellipatti Village reached the Vemaniyendal south tank through S.F.No.17/1. The ninth defendant is unnecessary party in the suit.
9.The averments made in the plaint in O.S.No.15 of 1997, in brief, are as follows:-
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(i) The plaintiffs are the Ayyakattuthar pertaining to the Pirambuvayal tank. The defendants are the owners of 37 Acres of agricultural land. Since the aggrieved persons are huge in numbers, the suit has been filed in representative capacity. The plaintiffs are having 60 acres of agricultural land in Pirambuvayal tank. For the said land, the extra water of Vemaniyendal and the water available in the Prembu channel, are the source. In and around the Vemaniyendal tank, there was a vacant land.
The source of the Pirambuvayal tank is the surplus water and waste water coming from the land situated on the western side of the Pirambuvayal tank. Further, the surplus water coming from the Vellipatti tank had reached the Pirambuvayal tank through north-south channel.
(ii) The surplus water from Vellipatti tank reached the Pirambu channel in S.F.No.35/1 and thereafter crossing the road of Vellipatti. Through S.F.Nos.35/15, 35/16, 113 and 160, the surplus water crosses and reached the Pirambuvayal tank. In the pirambuvayal tank, the defendants have no right and enjoyment. For receiving the surplus water, the plaintiffs are having the riparian rights. On 20.12.1965, the defendants were attempted to put up the pond in a channel, which was the source to the Vemaniyendal tank. Further on 16.12.1993 the village people of defendants unlawfully assembled and put up the pond in the Pirambuvayal tank. On 28.12.1993, the defendants are attempted to put up the cross pond in S.F.Nos.35/1, 35/15, 35/16, 113 and 160 and the same was prevented by the http://www.judis.nic.in 10 plaintiffs. If the defendants are put up the cross pond, there may be a chance for drying upto 72 Acres of agricultural lands. Hence, the suit.
10.The averments made in the written statement filed by the ninth defendant in O.S.No.15 of 1997, in brief, are as follows:-
It is not correct to state that the surplus water of the Vemaniyendal tank is the only source of Pirambu channel and the surplus water of Vellipatti Village, Vemaniyendal Village, Kokaniyendal are the source to the Pirambuvayal tank. In fact, the alleged Pirambuvayal tank is not in existence. The surplus water came from Vellipatti tank reaches Vemaniyendal north tank through S.F.Nos.7/11, 6/5,14/8, 18 and 91/1. There is no water source directly to the Pirambuvayal tank. The surplus water came from Vellipatti, Vemaniyendal and Kokaniyendal tanks are the only source to the Pirambuvayal tank. In the said Pirambuvayal tank, the defendants are not having any right, is not correct. In order to prevent in putting up the cross pond, the complaint was lodged before the Sub Collector, Devakottai. There is no cause of auction. The plaintiffs have not prayed any relief against the ninth defendant.
11.Since both the suits, for example O.S.No.15 of 1997 and O.S.No.15 of 1998, are having the similar facts and also both suits are filed in respect to the same issue, the learned District Munsif tried the both cases jointly. http://www.judis.nic.in 11
12.Before the trial Court on the side of the plaintiffs, three witnesses have been examined as P.W.1 to P.W.3 and marked nine documents as Ex.A.1 to Ex.A.9. On the side of the defendants, two witnesses have been examined as D.W.1 and D.W.2 and six documents were marked as Ex.B.1 to Ex.B.6. Apart from that, the report and plan filed by the Advocate Commissioner, was marked as Ex.C.1 and Ex.C.2.
13.Having considered all the materials placed before him, the learned District Munsif, Devakottai, had allowed the both suits and granted the decree in favour of the plaintiffs in both cases. In the appeals, the findings arrived at by the learned District Munsif are reversed. Ultimately, the decree granted by the trial Court was set aside. Feeling aggrieved over the same, the appellants/plaintiffs are before this Court with the present second appeals.
14.Since both the appeals are arising out of a Common Judgment, for disposing both the appeals, at the time of admission, this Court has formulated the following common Substantial Questions of Law, for consideration:-
“1. Whether the judgment and decree of the learned Subordinate Judge is not erroneous inasmuch as the learned Subordinate Judge has failed to consider the admission of the http://www.judis.nic.in 12 defendants 1 to 6 and 9 in the respective written statements filed by them?
2. Whether the lower appellate Court was right in holding the plaint documents as inadmissible when no objection was raised at the time of marking of the said documents and the defendants 7 to 9 who are parties to the said documents have not objected to the same and there was no doubt as to the true, genuineness and veracity of the said documents?
Substantial question of law No.1
15.The learned counsel appearing for the appellants would submit that before the trial Court, the District Collector, who is arrayed as one of the defendant, admitted the case of the plaintiffs and filed his written statement. Only after considering the admission made by the District authority, the trial Court granted the decree in favour of the plaintiffs. But the first appellate Court without seeing the said aspect, reversed the findings arrived at by the learned District Munsif, Devakottai, is nothing but erroneous in law. Accordingly, he prayed to restore the judgment rendered by the trial Court.
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16.Upon considering the arguments advanced by the learned counsel appearing for the appellants it is true that the divergent pleadings set out by either parties and the evidence given by the witnesses before the trial Court, will establish the fact that the Vellipatti tank is situated in S.F.No.2. Further the north Vemaniyendal tank is situated in S.F.No.91/1. Similarly, Kokaniyendal and Pirambuvayal tanks are situated in S.F.No.114 and 162 respectively. It is also the admitted case of either parties that the water collected from the forest situated in and around the Vellipatti tank is a source for reaching the Vellipatti tank. Similarly, the water collected from the lands situated on the western side of the Vemaniyendal tank and the surplus water came from Vellipatti tank, are the source to the Vemaniyendal tank. In respect to Kokaniyendal tank, the water collected from the lands situated on the western side of the said tank and the surplus water from Manakudi tank, are the source. Further, it is to be noted that for Pirambuvayal tank the source of water are the surplus water of Vellipatti tank, Vemaniyendal tank and Kokaniyendal tank. In fact, all the said tanks are not having any specific source for collecting water, except the rain water. In fact, in Sivagangai District, there was no river and mountain. Since all the tanks are situated one by one, it is natural that the surplus water found in the particular tank will reach the next tank only due to the gravitational force.
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17.It is also admitted on either side that the lands situated in and around the said tanks are getting water from the said source. Now on going through the written statement filed by the District Collector, in which, he has stated as follows:-
bts;spgl;o Maf;fl;L epyq;fspypUe;J toa[k; ePh; tlf;F bjw;F ntk;gdpnae;jy; fz;kha;fspd; cghp ePh; bjw;F fz;khapd; nky;g[wk; btspnaw;wg;gl;L fpHnkyhfr; bry;Yk; tha;f;fhy; tHpna gpuk;g[tay; fz;kha;f;F brd;wilfpwJ vd;gnj cz;ikahFk;.
18.So the said pleading set out by the District Collector is clear in support of the case of the plaintiffs. Thereby, according to the Government all the four tanks are filled with water one by one depending upon the availability of surplus water. In this occasion, it is relevant to see the report filed by the Advocate Commissioner, which is also in support of the averment made in the written statement filed by the Collector. Accordingly, the Collector admitted the case of the plaintiffs.
19.At this juncture, it is relevant to see the judgment of Union of India Vs. Ibrahim Uddin and Another, reported in 2012 (8) SCC 148, in which our Hon'ble Apex Court has held as follows:-
In view of the above, the law on the admissions can be summarised to the effect that admission made by a party thought not conclusive, is a decisive factor in a case unless the other party successfully withdraws the same or proves it to be erroneous. http://www.judis.nic.in 15
20.Applying the said principle, with the case in our hand, in order to dispute the facts submitted by the District Collector, no contra evidence adduced on the side of the defendants. However, as per Ex.A.3, the Tashildar, Karaikudi, recommended for blocking the bund in Vemaniyendal tank. The said recommendation is nothing, but the opinion of the Tahsildar and the same is not affected the right of the party, who claims the right.
21.The first appellate Court only based on the said recommendation letter, has held that the existence of Pirambuvayal is not proved by the plaintiffs and hence, there is no necessity for granting the relief of permanent injunction. In fact, the said findings arrived at by the first appellate Court is against the admission made by the Government authority. Even though there was a untoward incident was happened prior to filing of the suit. Only because of the said reason, we are not in a position to deny the right having by the parties. If the said relief is not granted in favour of the plaintiffs, it amounts that this Court fails to enforce the rights having by the plaintiffs. In fact, in the judgment rendered by the first appellate Court it was identified that there was no existence of Pirambuvayal tank. The said reason is nothing, but against the case of the Government authority. Even after admitting the existence of Pirambuvayal tank in the written statement filed by the Government authority, concluding the suit as there is no existence of Pirambuvayal tank is nothing but erroneous in law. http://www.judis.nic.in 16 Accordingly, the substantial question of law No.1 is answered affirmatively in favour of the plaintiffs.
Substantial question of law No.2:-
22.While at the time of disposing the appeals filed by the defendants 1 to 6, the learned Subordinate Judge, Devakottai came to the conclusion that the documents marked on the side of the plaintiffs as Ex.A.4 to Ex.A.8 are not admissible in evidences. In paragraph No.19 of the first appellate Court judgment, the said issue was decided and concluded that since those documents are not having any signature and seal of the officer concerned, there is no necessity to peruse the said documents. In fact, before the trial Court, the order passed by the Deputy Tashildar dated 27.12.1965 was marked as Ex.A.4. The copy of the complaint sent by the plaintiffs to the Sub Inspector, Sakkottai, dated 15.16.1967 was marked as Ex.A.5. The copy of the letter sent by the Karaikudi Tashdilar to the Sub Inspector of Police, Sakkottai, was marked as Ex.A.6. The letter sent by the P.D.O to the Deputy Tashdilar dated 22.08.1967 and the letter sent by the Sub-Inspector of Police, Sakkottai to the Tahsildar, Sakkottai, were marked as Ex.A.7 and Ex.A.8 respectively.
23.It is true that in those documents the seal of the officer concerned and signature of the author, are not available. However at the time of http://www.judis.nic.in 17 marking those documents, the defendants did not raise any objections. More than that, those documents are all related to the Government Office. Further the authors of the documents are the party to the suit now before this Court. If really those documents are fabricated one, necessarily either the defendants or the Government authorities are raised objections at the time of marking the documents as exhibits. But in this case, on the side of the defendants, nothing was averred as those documents are fabricated one. Only, in the presence of the defendants and Government officials, those documents were marked as exhibits.
24.The said circumstances, will clearly reveal that the defendants are admitted the said documents are genuine and original. Non-raising of the objections by the defendants is nothing, but admission. As already stated, in earlier paragraph our Hon'ble Apex Court has also concluded the evidenciary value of admission. But, the first appellate Court without seeing the said aspect, directly rejected the said documents, only for the reason that the signature is not available and also concluded the appeals in favour of the defendants.
25.The first appellate Court only on considering those documents, came to the conclusion particularly about the existence of the pirambuvayal tank and other tank. So, I am of the opinion that Ex.A.4 to Ex.A.8 are true and genuine documents. So, the reasons stated by the first appellate Court http://www.judis.nic.in 18 R.PONGIAPPAN, J.
cp for rejecting those documents, cannot be accepted. Ultimately, I am of the opinion allowing the appeal filed by the defendants 1 to 6 for the reason stated above, is nothing, but erroneous.
26.In the result, these Second Appeals are allowed and the Judgment and Decree dated 30.06.1999 passed in A.S.Nos.10 and 7 of 1999 by the learned Subordinate Judge, Devakottai, is set aside and the Judgment and Decree dated 08.12.1998 passed in O.S.Nos.15 of 1997 and 15 of 1998 by the learned District Munsif, Devakottai, is restored. No costs.
20.08.2019
Index : Yes / No
Internet : Yes / No
cp
To
1.The Subordinate Judge,
Devakottai,
2.The District Munsif,
Devakottai.
3.The Record Clerk
Vernacular Section
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A Nos.16 & 17 of 2001
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