Dismissed

Ponnusami Chettiar v. Palanisami Gounder

Madras HC25 Apr 2014SA/1422/1999

Case brief

AI extract

What is this about?

In a second appeal regarding irrigation water rights, the High Court of Madras examined whether the respondent possessed the right to drain water through a defined channel across the appellant's land. The court held that the right was established by long-term usage and a prior judicial decree against the appellant's father, rendering the current suit for permanent injunction maintainable and dismi

What did the court decide?

The second appeal was dismissed, and the decrees and judgments of the courts below confirming the permanent injunction were upheld.

Ponnusami Chettiar Vs Palanisami Gounder — Writ and Judicial Review | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 25.04.2014

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CORAM

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THE HONOURABLE MR.JUSTICE R.KARUPPIAH

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S.A.No.1422 of 1999

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Ponnusami Chettiar .. Appellant/Defendant

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Vs.
Palanisami Gounder .. Respondent/Plaintiff

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Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code against the decree and judgment dated 18.01.1999 made on the file of Subordinate Court at Bhavani, Erode District in A.S.No.36 of 1998 wherein confirmed the decree and judgment dated 18.06.1997 made in O.S.No.338 of 1994 on the file of the Additional District Munsif Court, Bhavani.

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For the Appellant : Mr.R.Swaminathan For the Respondent : Mr.P.Valliappan JUDGMENT

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The appellant who is the defendant in the suit preferred this Second Appeal against the decree and judgment dated 18.01.1999 made on the file of the Subordinate Court at Bhavani, Erode District in A.S.No.36 of 1998 wherein confirmed the decree and judgment dated 18.06.1997 made in O.S.No.338 of 1994 on the file of the Additional District Munsif Court, Bhavani.

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For the sake of convenience the plaintiff in the original suit is referred as respondent and the defendant in the original suit is referred as appellant hereafter.

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The respondent / plaintiff filed a suit for permanent injunction and briefly the case of the respondent is that the respondent has got lands in G.S.No.390/A of Govinda Village to an extent of 2.11 acres with one well along with right of Lower Bhavani Project Channel irrigating rights leading from sluice Nos.23 and 26

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as per partition Deed, dated 03.12.1963. Already there was a dispute with regard to Lower Bhavani Project Channel course in between the respondent and the appellant's father, viz., Apachi Gounder. The respondent filed a suit in O.S.No.1366 of 1967 on the file of the District Munsif Court, Erode. In the above said suit, Commissioner was appointed and he filed his report and plan in which specifically noted the present suit Lower Bhavani Project Channel course. The appellant is having lands in G.S.No.390B. With malafide intention, the appellant attempted to obstruct the suit Lower Bhavani Project Channel course on 08.05.1994. Therefore the suit is filed for seeking the relief of permanent injunction restraining the appellant to put up any obstruction or storing any stone or any other materials over the Lower Bhavani Project Channel course.

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The appellant / defendant filed a written statement in which it is stated that no such Lower Bhavani Project Channel course available as shown as " X " " Y " in the respondent's rough plan. The respondent has provided facility to drain the water in his own land. Further the respondent has no necessity to take the water through the above said Lower Bhavani Project Channel and therefore, the respondent has no right in the above said Lower Bhavani Project Channel. Further, the suit for permanent injunction without declaration is not at all maintainable. It is further stated in the written statement that the relief granted in O.S.No.1366 of 1967 is different from the relief sought for in this suit and therefore, the respondent is not entitled to relief sought for in the plaint.

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Before the Trial Court, on the side of the respondent / plaintiff one witness was examined as P.W.1 and marked seven documents as Exs.P1 to P7. On the side of the appellant /defendant examined one witness as DW.1 and no document was marked. The Commissioner report and plan marked as Ex.C1 and C2. The trial court has discussed above oral and document evidence and finally decreed the suit as prayed for in the plaint. Challenging the aforesaid finding of the trial court, the appellant / defendant preferred first appeal in A.S.No.36 of 1998. The First Appellate Court has dismissed the first appeal and confirmed the decree and judgment passed by the Trial Court. Aggrieved by the aforesaid concurrent findings of both the courts below, the appellant who is the defendant in the suit preferred this second appeal.

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This second appeal has been admitted on the following substantial questions of law for consideration:-

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Whether the upper land owner is entitled to flow and drain water, which does not naturally arise on his land or fall, but comes artificially, through a defined channel across the lower land?

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Whether the suit for injunction restraining obstruction to drain water through a defined channel be maintainable without specific pleading and proof of any customary or easement right thereto?

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Is no the right to drain water through a defined course be acquired only by prescription, and without pleading and proof thereof the same cannot be the basis of any right and consequential injunction?

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Can the Court below be justified in presuming that the suit channel marked as XY as a channel intended to take L.B.P. Water across the road, without any proof thereof and on the strength of Ex.A4 and A5?

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Will the permission to take water granted under Exs.A4 and A5, include a right to drain water through a definite channel XY shown in the plaint sketch?

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Whether the owner of the lower land bound

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to prevent inundation of water in the upper tenement when such water flown artificially into the latter's land, without there being an easement to that effect?

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Heard the learned counsel appearing for both sides and perused the materials available on records.

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The learned counsel appearing for the appellant would submit that both the courts below have wrongly held that the respondent has got right to drain water through channel “X”, ''Y''. The learned counsel further submitted that the mere fact that the respondent had been taken Lower Bhavani Project Channel water under Exs.A4 and A5 for irrigating the field, could not by itself establish a right to drain water through the channel marked as X,Y in the plaint plan. Further, the learned counsel submitted that the sketch drawn by the Commissioner in earlier proceedings in O.S.No.1366/1967 would not by itself confer any right to the respondent and further, an alternative drainage course has been provided as shown in Exs.C1 and C2. The learned counsel further pointed out that the respondent has not claimed any customary right or easmentary right to drain water through the courses X,Y. Further, the respondent has not established that he has a prescriptive right to drain water and also submitted that without any prayer for declaration, the respondent would not

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entitled to the relief of injunction alone. Further, the learned counsel submitted that the respondent has not made any complaint about the said obstruction and take proceedings as per Sections 430 and 432 IPC and also not impleaded the Government as a party in the suit. Further, both the courts below have erred by assuming that a level of ground and the channel remain unchanged over the years since 1967. The learned counsel finally submitted that the findings of both the courts below are perverse finding and hence, prayed for to set aside the above said findings of both the courts below.

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Per contra, the learned counsel appearing for the respondent would submit that under Ex.A1 partition deed, dated 03.12.1963, the respondent entitled the lands in G.S.No.390/A of Govinda Village to an extent of 2.11 acres with right of Lower Bhavani Project Channel irrigating rights leading from sluice Nos.23 and 26. The learned counsel further submitted that the Government has given permission for irrigation with Bhavani reservoir water under Exs.A4 and A5 to take water from sluice Nos.23 and 26. Further, the learned counsel submitted that the respondent already filed a suit in O.S.No.1366/1967 against the appellant's father in which, Commissioner was appointed and on the basis of Commissioner's report and plan, the relief of permanent injunction was granted in favour of the respondent herein as against the appellant's father and therefore, the respondent has proved the water course as pleaded in the plaint by reliable documentary evidence and also by adducing oral evidence. Further, the Commissioner was appointed in the present case and filed his reports Exs.C1 and C2 before the trial court and also Commissioner was appointed before the first appellate court and filed his report and plan and marked as Exs.C3 and C4 and all the reports and plans clearly proved that the respondent has a right to drain water from the appellant's land. As pleaded in the plaint, the appellant has no right to put up any obstruction in the above said water course. The learned counsel further submitted that both the courts below have correctly discussed the above said documents and also considered the admission of the appellant at the time of oral evidence and finally decreed the suit as prayed for by the respondent and therefore, no substantial questions of law arises.

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It is not in dispute that G.S.No.390/A of Govinda Village, to an extent of 2.11 acres belongs to the respondent as per Ex.A1 partition deed dated 03.12.1963. It is also not in dispute that G.S.No.390 B belongs to the appellant. Further, it is not disputed that the Government has granted permission to irrigate the respondent lands from sluice Nos.23 and 26 in Lower Bhavani Project Channel under Exs.A4 and A5 dated 30.07.1954. It is also admitted by both sides that the respondent herein already filed a suit in O.S.No.1366/1967 and seeking relief of permanent injunction restraining the present appellant's father, namely Apachi Gounder or their men from brass bunding mamool Lower Bhavani Project Koppu vaikal blowing from sluice No.26 at point X indicated in the rough

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sketch filed with the plaint, thereby causing stagnation of water in the plaint A-schedule lands in the above said suit. The above said suit was decreed as prayed for by the respondent herein on 27.09.1969 and the above said suit register marked as Ex.A7.

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From the above said documents adduced on the side of the respondent clearly proved that both the appellant and the respondent are taking water from sluice Nos.23 and 26 and the above said water drained through the appellant's land and the road. The Advocate Commissioner was appointed before the trial court and also before the appellate court. A perusal of a Commissioner's reports and plans Exs.C1 to C4 clearly revealed that the respondent has drained the water through the appellant's land from 1954 onwards. Further, it is also revealed that since the father of the appellant restrained the water flow from the respondent's lands, the earlier suit in O.S.No.1366 of 1967 was filed by the respondent and obtained decree against the appellant's father and it becomes final. Therefore, the respondent has proved his contention by adducing reliable oral and documentary evidence as rightly discussed by both the courts below.

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The learned counsel appearing for the appellant submitted that the above said permission granted in Exs.A4 and A5 is only to take water from the respondent's lands and not included a right to drain water through a definite channel X,Y as shown in the plaint sketch. This contention cannot be accepted since the above said permission granted under Exs.A4 and A5, the averments made in Ex.A1 partition deed, and the Commissioner's reports and plans clearly proved that the respondent has used to drain water through definite channel shown as X,Y in the plaint sketch as rightly pointed out by the learned counsel for the respondent. Further, the appellant who deposed as DW1 has categorically admitted that the above said channel coming from west to east and crossed the appellant's land and the above said admission of DW1 itself clearly shows that the respondent has right to drain water through the appellant's land as contended by the learned counsel appearing for the respondent.

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The learned counsel appearing for the appellant also contended that the respondent has not claimed any easmentary or customary right or seeking any relief of declaration and therefore, the suit filed by the respondent only for permanent injunction is not maintainable. This contention of the appellant also cannot be accepted since the earlier proceedings itself, the rights of the respondent accepted by the competent trial court and granted the relief of permanent injunction. In the instant case, the respondent has seeking permanent injunction against the appellant not to put up any obstruction or storing any stone or any other materials over the Lower Bhavani Project Channel course. Therefore, the suit filed for permanent injunction alone cannot be rejected on the ground that the respondent not seeking declaration and other reliefs. Therefore, the suit filed by the respondent is maintainable, as rightly pointed out

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by the learned counsel for the respondent.

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The learned counsel appearing for the appellant relied on various decisions reported as follows:-

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AIR 1983 ALLAHABAD 223 (Prabhu Narain Singh v. Ram Niranjan).

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AIR 1967 AP 81 (V 54 C 27) (Chanti China Venkatareddi v. Kurasani Koti Reddy and another).

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47 LW 564 (Melepat Madhathil M.R.Venkitaraya Aiyar and another v. Neelamane Sankaran Embrandiri and another).

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AIR 1972 ORISSA 53 (Chaitan Baral and others v. Rathia Patra and others).

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(1996) 2 MLJ 63 (S.Parthasarathy v. S.Srinivasan).

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On a careful reading of all the above said decisions revealed that the facts of the above said cases are not applicable to the facts of the present case. In the instant case, as already discussed, the Government has permitted the respondent to take water from Lower Bhavani Project Channel and the above said right was also given to the respondent in partition deed dated 03.12.1963 onwards. Therefore, the respondent proved that he irrigating his lands from sluice Nos.23 and 26 from the above said Lower Bhavani Project Channel course. Further, the respondent has already filed a civil suit in O.S.No.1366/1967 and in the above said plaint it is stated as follows :-

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''It is alleged that the plaintiff is the owner of A schedule land and defendants are owners of B schedule lands and all these lands are included in L.B.P ayacut and both parties are taking water, that the sluices Nos.23 and 26; that as water from sluice No.23 is not sufficient defendants are attempting to put up a masonry construction on 30.09.1967 at X Y by cross bunding the water course at point X; that if they are allowed to do so water will stagnate in plaintiffs land and hence the suit.”

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In the above said suit, permanent injunction was granted by restraining from brass bunding mamool Lower Bhavani Project Koppu vaikal blowing from sluice No.26 at point X indicated in the rough sketch filed with the plaint, thereby, causing stagnation of water in the plaint A-schedule lands. A perusal of the above said document revealed that the respondent herein already filed a suit and obtained a decree against the father of the appellant and the above said suit becomes final. Therefore, all the decisions relied on by the appellants are not applicable to the facts of the present case, since the rights have been already recognised by the competent civil court and granted the relief of permanent injunction against the revision

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petitioner's father and also the respondent has proved the above said right for more than 20 years by adducing reliable oral and documentary evidence.

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The learned counsel appearing for the appellant pointed out that in an unreported judgment passed by this Court in S.A.No.845 of 2005 dated 12.09.2012, in which, this Court has held that the injunction granted in the above said suit will not be a bar for the officials to take fresh action, if they choose to do so to lay fresh Lower Bhavani Project Channel adhering to law. The learned counsel further pointed out that in view of the above said finding, the Government has taken necessary steps to lay a fresh Lower Bhavani Project Channel and therefore, no need to grant injunction. In the instant case, as already discussed, the respondent has proved by reliable oral and documentary evidence that the respondent has having right to drain water and therefore, he is entitled to the relief of permanent injunction as prayed for in the plaint and the courts below have correctly discussed all the above said facts and decreed the suit.

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From the above said discussion, it is clear that all the objections raised by the appellant against the findings of the courts below cannot be accepted, since the right of the respondent has been already confirmed by the competent civil court and granted the relief of permanent injunction in the earlier proceedings i.e., O.S.No.1366 of 1967. Therefore, the respondent is entitled to the relief of permanent injunction as rightly granted by both the courts below and no illegality in the above said findings and answered all the substantial questions of law against the appellant and in favour of the respondent. Therefore, the decree and judgments of both the courts below are to be confirmed and the second appeal is liable to be dismissed.

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In the result, the second appeal is dismissed. No order as to costs.

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Sd/Asst.Registrar(CS III) 5.5.2014 /True Copy/ Sub Asst.Registrar

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ssn

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