Madras High Court
C.Kumarasamy vs S.Chellamuthu on 27 April, 2021
Author: M.Sundar
Bench: M.Sundar
S.A.No.406 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 27.04.2021
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.No.406 of 2021
C.Kumarasamy
S/o.Late Chellappa Gounder .. Appellant
Vs.
S.Chellamuthu
S/o.Late Songappa Gounder .. Respondent
Second Appeal under Section 100 of CPC to set aside the judgement
and decree dated 25.09.2019 made in A.S.No.29 of 2018 on the file of the
learned Sub Court, Kangayam confirming the judgment and decree dated
11.08.2018 made in O.S.No.94 of 2012 on the file of the learned District
Munsif Court, Kangayam.
For Appellant : Mr.N.Manokaran
For Respondent : Mr.E.Duraivaiyapuri
for Mr.D.Balachandran
----
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S.A.No.406 of 2021
JUDGMENT
The lis which has traveled to this Court by way of captioned Second Appeal is heading towards joining decade old litigation league as it commenced on 02.04.2012 when lone respondent in the captioned Second Appeal presented a plaint in the 'District Munsif's Court, Kangayam, Tirupur District' [hereinafter 'trial Court' for the sake of convenience and clarity] against the sole appellant in the captioned Second Appeal. This plaint was taken on file by trial Court as O.S.No.94 of 2012. Plaintiff and defendant owned adjacent properties which include adjacent agricultural properties and plaint pertains to rights of plaintiff to take water through a channel portrayed/marked as 'ABCDE' and 'XY' in the sketch besides rights over cart track pictorially described/marked as 'RS' to reach Government lands. After full contest, trial Court decreed the suit on 11.08.2018, defendant carried the matter in appeal by way of a regular First Appeal under Section 96 of 'The Code of Civil Procedure, 1908' ['CPC' for brevity] vide A.S.No.29 of 2018 on the file of the 'Subordinate Judge's Court, Kangayam' [hereinafter 'First Appellate Court' for the sake of convenience and clarity] and the First Appellate Court also after full contest dismissed the appeal suit vide judgment and decree dated 25.09.2019. As against these two concurrent 2/18 https://www.mhc.tn.gov.in/judis/ S.A.No.406 of 2021 judgments/decrees, the defendant has come to this Court vide captioned Second Appeal which is obviously under Section 100 CPC.
2. Owing to a legal drill under Section 100 CPC turning on substantial question of law arising/involved in the case, short facts shorn of elaboration or in other words, short facts sans unnecessary particulars will suffice.
3. Mr.N.Manokaran, learned counsel for lone appellant and Mr.E.Duraivaiyapuri learned counsel representing Mr.D.Balachandran, counsel who has lodged caveat on behalf of lone respondent are before this Virtual Court.
4. For appreciating short facts which this Court will be setting out infra, it would be useful to scan and reproduce the sketch attached to plaint which is as follows:
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5. The aforementioned sketch seen in the light of prayers in the plaint which have been set out supra brings out the lis with clarity as channels 'ABCDE', 'XY' and four wells have been clearly described in the sketch besides showing plaintiff's properties and defendant's properties. Short facts are that plaintiff's grand-father and defendant's grand-father have entered into a ghfrhrdg; gj;jpuk; dated 16.10.1957 (Ex.A1); that Ex.A1 mentions about ABC part of channel; that absence of any mention about DE part of channel in Ex.A1, rights of plaintiff cannot be sustained is the burden of the song qua defendant's pleadings; that as already alluded to supra, the trial Court after full contest decreed the suit inter-alia but primarily on the ground that plaintiff is irrigating lands through common water channel from his exclusive well only during his turn and not during the turn of the other co-owners or that of the defendant and defendant has not pointed out any damage or injury that would be caused owing to plaintiff's use of common water channel. The same view has been taken by the First Appellate Court also. The trial Court has also relied on a judgement of Hon'ble Supreme Court in Ayyaswami Gounder and others Vs. Munnuswamy Gounder and 5/18 https://www.mhc.tn.gov.in/judis/ S.A.No.406 of 2021 others reported in CDJ 1984 SC 137, wherein the importance of irrigation qua agricultural lands have been stressed.
6. Mr.N.Manokaran, learned counsel for appellant notwithstanding very many grounds raised in the memorandum of grounds of appeal contended that Ex.A1 is accepted by both sides and Ex.A1 mentions about channel portion ABC and does not mention about channel DE portion and therefore, channel ABCDE cannot be used by plaintiff for taking water from his separate well W3. It is also contended that there is no prayer for declaration and therefore, bare injunction prayer is not maintainable.
7. In the considered view of this Court, this matter stands on a different footing as it pertains to irrigation for agricultural lands from four wells where three are common wells and one is a private well. Irrigation for agricultural lands is lifeline for agrarian activities, this has been articulated and stressed by Hon'ble Supreme Court in Ayyaswami Gounder case and citation has been also given supra.
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8. In the considered view of this Court, one paragraph each from judgments of trial Court and First Appellate Court will suffice to clinch the points for determination in this Second Appeal. Before this Court extracts those two paragraphs from judgments of the Courts below, it is necessary to set out points for determination in instant second appeal and the same are as follows:
(a) Absent DE marked portion of channel, can plaintiff be entitled to draw water from W3 well and also be given rights with regard to XY when Ex.A1 talks only about ABC portion?
(b) Whether any substantial question of law arises in the case on hand?
9. Most relevant paragraph in judgment of trial Court is paragraph No.10 and the same reads as follows:
'10/ nkw;go r';fjpfs; midj;ija[k; ghprPyid
bra;ifapy; "ABCDE" vd jhth cj;njr tiuglj;jpy;
Fwpg;gplg;gl;Ls;s tha;f;fhy; tHpahf 223 ghfj;jpy; cs;s W1
kw;Wk; W2 fpzWfs; tHpahf jz;zPh; vLj;Jr; bry;Yk;
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S.A.No.406 of 2021
chpik thjpf;F cs;sJ bjspthf bjhpa tUfpwJ/ jw;nghJ gpujpthjp jug;gpy; bra;ag;gl;Ls;s kw;Wk; xU Ml;nrgid vd;dbtd;why; thjp g[jpajhf jd;Dila ghfj;jpy; mikj;Js;s W3 jdpf;fpzw;wpypUe;J vLf;fg;gLk; jz;zPiu bghJ tha;f;fhy; tHpahf thjp vLj;Jr; bry;y KoahJ vd;gnj MFk;/ thjp jug;g[ tHf;fpy; thjp jd;Dila Kiw ehspy; jhd; jdpf;fpzw;W jz;zPiu bfhz;L brd;W mDgtpg;gjhf Fwpg;gplg;gl;Ls;sJ/ ,t;thW thjpapd; Kiw ehspy; thjp fpzw;Wj; jz;zPiu bghJ tha;f;ghypy; thjp bfhz;L bry;tjhy; gpujpthjp jug;gpw;F ghjpg;g[ VnjDk; cs;sjh vd;gij gpujpthjp jug;gpy; bjhptpf;ftpy;iy/ nkYk; th/rh/M/1 Mtzj;jpy; mt;thW jdpahf ghf!;jh;fs; fpzWfs; btl;of;bfhs;sf;TlhJ vd;nwh bghJ tha;f;fhypy;
mth;fs; jz;zPiu bfhz;L bry;yf;TlhJ vd;w
c&uj;Jf;fs; ,y;iy vd;gJ Fwpg;gplj;jf;fJ/ thjp jug;g[
tHf;fwp"h; jd;Dila thjj;jpw;F mjuthf
CDJ 1984 SC 137
Ayyaswami gounder and Others Vs. Mannuswamy Gounder and others "There is yet another reason why we would be reluctant to encourage the defendants to stop the plaintiffs from irrigating their fields from their own exclusive well through the common channel. In 8/18 https://www.mhc.tn.gov.in/judis/ S.A.No.406 of 2021 these days of scarcity when every effort is being made at all levels to increase the agricultural production to the country's teeming millions it would not be desirable to allow the defendants to create any hurdle in the irrigation of the plaintiff's plots through the common channel from their exclusive well. Thus neither the law nor expediency warrants a conclusion as desired by the defendants.
For the foregoing discussion the appeal must succeed. It is accordingly allowed and the judgment and decree of the High Court is set aside."
nkw;go jPh;g;gpy; khz;g[kpF cr;r ePjpkd;wkhdJ ehl;od; tptrha cw;gj;jp mjpfhpf;f ntz;Lk; vd;Wk; xU jug;gpdh; ,t;thW kw;bwhU jug;gpdh; jz;zPh; bfhz;L bry;tjw;F jilfs; Vw;gLj;JtJ rhpay;y vd;Wk;. Fwpg;gplL ;
jdpf;fpzw;wpypUe;J bghJ tha;f;fhy; tHpahf jz;zPh; vLj;Jr; bry;tJ rhpna vd;W jPh;g;gspj;Js;sJ/ vdnt "ABCDE" vd;w tha;f;fhy; epiyapy; g{!;Jjpapy; cs;sJ vd;gJk; mtw;wpy; 223 be/fhiyapy; cs;s midj;J fpzWfspypUe;Jk; bghJ tha;f;fhypy; 222gp y; cs;s jd; ghfj;jpw;F jz;zPh; vLj;Jr; bry;y thjpf;F chpika[z;L vd;gJk; bjspthfpwJ/ th/rh/M/1 Mtzj;jpy; bghJ c&uhtpy;/ "//////////222gp fhiyapy; 223 be/fhiy Vhpapy; tUk; 9/18 https://www.mhc.tn.gov.in/judis/ S.A.No.406 of 2021 jlj;jpypUe;J "A,G,F" ghf';fSf;F kj;jpapy; bjd;tlyhf ghf!;jh;fs; khK:y;go j';fs; j';fs; ghf';fSf;F ngha;tu ntz;oaJ/ ic& fhiyapy; "G" ghfj;jpy; bjd;nfhlhf 4 KH mfyj;jpy; 223 be/fhiy Vhpj;jlj;jpypUe;J fpHnkyhf fpHg[wj;J fpzh; tiu "AGF" ghf!;ju;fSf;F "G"
brl;a{y;jhh; jlk; tpl;L tpl ntz;oaJ///////////" vd;W Fwpg;gplg;gl;Ls;sJ/ ePjpkd;w Mizahpd; mwpf;ifapYk; tiuglj;jpYk;
mt;thW W4 fpzw;Wf;F bry;tjw;F 6 mo mfy "XY"
vd;W brhy;yg;gLk; Vhpj;jlk; cs;sJ bjspthf
Fwpg;gplg;gl;Ls;sJ/ gpujpthjpa[k; jd; FWf;F tprhuizapy;
"/////////// W4 fpzw;Wf;F bry;tjw;F "PQ" VhpapypUe;J 4 KH
mfyj;jpy; xU Vhpj;jlk; bry;fpwbjd;why; ic& jlk; 4 KH mfyj;jpy; bry;ytpyi ; y mjw;F Fiwthd tp!;jPuzj;jpy;
bry;fpwJ//////////" vd;W Twpa[s;shh;/ ic& midj;J r';fjpfisa[k; ghprPyid bra;jjpy;
"PQ" Vhp jlj;jpypUe;J W4 fpzw;Wf;F bry;Yk; "XY" vd;W jhth cj;njr tiuglj;jpy; brhy;yg;gl;lthW fpHnky; 6 mo mfy jlk; bry;fpwJ vd;gJk; nkw;go jlj;jpy; jhth 2k; mapll; brhj;jpypUe;J thjp ic& "XY" jlj;jpd; tHpahf W4 fpzw;wpw;F bry;tjw;F chpika[s;sJ vd;gJk;10/18
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10. Most relevant paragraph in judgment of First Appellate Court is Paragraph No.16 and the same reads as follows:
'16.As the defendant again and again claims that his objection is that the plaintiff cannot irrigate his lands through a well dug by him exclusively, the plaintiff relies on 1985 1 MLJ 36 (SC) Ayyasami Gounder & Others Vs. Munnuswamy Gounder & others, of our Hon'ble High Court AIR 1973 MAD 42 Subbiya Goundan Vs. Ramasamy Goundan and others as well 1997 (1) LW 435 : CDJ 1996 MHC 1075 K.V.Venugopala Reddiar Vs. Alliammal and others in these judgments it is referred and discussed, it is held, the common property is to be put to use without causing any injury or detriment to the other co-owners and it is not for one co-owner to dictate in what manner the other co-owner should enjoy the common property so long as the user of the common property by one co-owner does not materially interfere with the use of the property by the objecting co-owner or is shown to affect their rights or in any way weaken, or damage or injure the common property. Therefore, in the 1985 Apex Court judgment referred supra as well the 1973 Madras High Court judgment, the water was used to irrigate the lands of one co-owner from his exclusive well, during his turn in using the common channel. Therefore, when these facts as discussed in the earlier three judgments are applied to the facts on hand, the plaintiff is irrigating his lands through the common water channel 11/18 https://www.mhc.tn.gov.in/judis/ S.A.No.406 of 2021 from his exclusive well only during his turn and not in the turn of the other co-owners or that of the defendant. Further the defendant has not come out with reasons specifically pointing out what is the damage or injury to him or how the plaintiff's user of the common water channel as well the pathway and the itteri would materially interfere with his use of the property. The plaintiff genuinely has been irrigating his lands from his exclusive well through the common water channel only during his turn and has never thought of taking water on all days thereby interfering with the usage of the other co-sharers, especially the defendant, thereby reducing their usage of the water channel during their turn. Hence, in any Court the defendant cannot deny the rightful usage of the plaintiff and the trial Court after elaborately considering these facts had arrived at the right decision thereby granting the three permanent injunctions in respect of the three items of the suit property and which needs no interference by way of this appeal. Thus, these points are answered.'
11. The aforementioned two paragraphs make it clear that the plaintiff is drawing water from common well for irrigation purpose only during his turn and there is nothing demonstrable before this Court to dislodge these concurrent findings of fact returned by both the Courts below. As already alluded to supra, irrigation qua agricultural lands stands on a different footing. This has been neatly captured by the Courts below by drawing 12/18 https://www.mhc.tn.gov.in/judis/ S.A.No.406 of 2021 inspiration from Ayyaswami Gounder's case supra. Therefore, the first point for determination stands answered against the appellant and this Court finds no infirmity in the suit being decreed. To be noted, the other argument on the absence of declaration prayer pales into significance along with this answer. This leaves the second and last point for determination i.e., whether any substantial question of law arises in the case on hand. The expression 'substantial question of law' is not defined in CPC, but it has been elucidatively explained in a long line of authorities starting from Rimmalapudi Subba Rao's case [Rimmalapudi Subba Rao Vs. Noony Veeraju and others reported in AIR 1951 Mad 969 (FB)]. To be noted, the Rimmalapudi principle has been subsequently approved by a Constitution Bench of Hon'ble Supreme Court in Sir Chunilal Mehta case being Sir Chunilal V.Mehta Vs. Century Spinning and Manufacturing Co. Ltd. reported in AIR 1962 SC 1314 and this trajectory of law has been neatly captured by Hon'ble Supreme Court in Santosh Hazari case being Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179. In this regard, it will suffice to extract Paragraph No.12 of Santosh Hazari's case which reads as follows:
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https://www.mhc.tn.gov.in/judis/ S.A.No.406 of 2021 '12.The phrase “substantial question of law”, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta [AIR 1928 PC 172 :
55 IA 235] , the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. [AIR 1962 SC 1314 : 1962 Supp (3) SCR 549] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [ILR 1952 Mad 264 : AIR 1951 Mad 969] :14/18
https://www.mhc.tn.gov.in/judis/ S.A.No.406 of 2021 “[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.” and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:
“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”'
12. The aforementioned obtaining position of law has been reiterated 15/18 https://www.mhc.tn.gov.in/judis/ S.A.No.406 of 2021 by Hon'ble Supreme Court recently in Nazir Mohamed case [Nazir Mohamed Vs. J.Kamala, reported in 2020 SCC OnLine SC 676]. The term 'substantial' prefixing 'question of law' has also been explained. Further more, the expression 'involved in the case' has also been explained. Relevant paragraphs are paragraph Nos.32 & 33 of Nazir Mohamed case which read as follows:
'32. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.
33. To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.'
13. If the above parameters/determinants are applied, this Court has no hesitation in coming to the conclusion that this being a matter pertaining to irrigation qua agrarian activity and drawing water from wells during his turn, it does not lead to any substantial question of law, as there is nothing 16/18 https://www.mhc.tn.gov.in/judis/ S.A.No.406 of 2021 demonstrable qua concurrent factual findings returned by the Courts below i.e., nothing demonstrable in the case on hand regarding arising of any debatable question, question that is res integra or question turning on settled principle being disregarded.
14. Therefore, this Court following Kirpa Ram principle being principle laid down by Hon'ble Supreme Court in Kirpa Ram Vs. Surendra Deo Gaur and others reported in 2020 SCC Online SC 935 deems it appropriate to dismiss the captioned Second Appeal at the admission stage, holding that no substantial question/s of law arise/s. To be noted, Kirpa Ram principle is to the effect that a second appeal Court can dismiss the second appeal at admission stage without formulating substantial question of law if none arises in a given case. Considering the nature of the matter and nature of submissions made by learned counsel, there shall be no order as to costs.
27.04.2021 (1/2) Speaking/Non-speaking order Index : Yes / No Internet : Yes / No mk M.SUNDAR. J 17/18 https://www.mhc.tn.gov.in/judis/ S.A.No.406 of 2021 mk To
1. The Sub-Judge Subordinate Court, Kangayam.
2. The District Munsif District Munsif Court Kangayam.
S.A.No.406 of 2021
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