Dismissed

K.Ramakrishnan v. Govindasamy Gounder(Decs)

Madras HC25 Oct 2016SA/629/2015

Case brief

AI extract

What is this about?

In this second appeal regarding ayacut rights, the Madras High Court dismissed the appeal. The appellant, a joint owner, contested the trial court's finding that land at Survey No.24/15 belonged to the defendants' ayacut. The court upheld the lower findings that the sale deed conferred irrigation rights from the appellant's well, rejecting the claim that it was merely a secondary option.

What did the court decide?

Second Appeal No.629 of 2015 dismissed; no costs to any party; connected miscellaneous petition dismissed.

K.Ramakrishnan Vs Govindasamy Gounder(Decs) — Property and Title | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 25.10.2016

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CORAM

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THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU

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Second Appeal No.629 of 2015 and

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M.P.No.1 of 2015

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K.Ramakrishnan ... Appellant vs. 1.Govindasamy Gounder (deceased) 2.Thasaradan 3.Narayanan 4.Venkadesan 5.Ranganayagi ammal ...Respondents

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Prayer: Second Appeal filed under Section 100 of C.P.C. against the judgment and decree passed by the learned Subordinate Judge, Gingee dated 25.07.2011 in A.S.No.5 of 2011 confirming the judgment and decree passed by the learned Additional District Munsif, Gingee in O.S.No.300 of 2001 dated 20.10.2010.

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The appellant is the plaintiff in a suit for declaration and permanent injunction. The appellant sought for declaration to declare that the suit schedule 'B' lands are ayacut lands of schedule 'A' Well situated at Survey No.24/4 and that schedule 'C' lands are not ayacut lands of schedule 'A' Well. The defendants contested the suit.

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2.The trial court decreed the suit by holding that 'B' schedule lands are ayacut lands of schedule 'A' Well and also by holding that two items in schedule 'C' are not ayacut lands while third item of 'C' schedule viz., land at Survey No.34/15 is ayacut land of schedule 'A' Well. In other words, the trial court while accepting the claim of the plaintiff in respect of

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Survey No.24/11C and 20 in 'C' schedule, rejected his claim in respect of land at Survey No.24/15.

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3.The defendants did not prefer any appeal against the decree of the trial court. However, the plaintiff filed the first appeal challenging the dismissal of the suit in so far as his claim in respect of survey No.24/15 shown in 'C' schedule. The Appellate Court, concurring with the findings rendered by the trial court, dismissed the appeal. Thus, aggrieved against the concurrent findings rendered by the courts below only in respect of the land at Survey No.24/15, the present second appeal is filed before this court.

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4.This Court admitted the second appeal by raising the following substantial questions of law:

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“Whether the courts below had erred in not considering the admissions made by the defendant witnesses 1 and 2 that there was a channel from the well in Survey No.24/4 to the land bearing No.24/15 which would clearly go to show that the second item of the suit 'C' Schedule i.e. Survey No.24/15 is siutate within the ayacut of the well in Survey No.24/4?”

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5.Today, the matter is taken up for final disposal. M/s.Dakshayini Reddy, learned counsel appearing for the appellant submitted that the defendants cannot have ayacut rights in respect of lands at Survey No.24/15, since, according to Ex.A7, sale deed which is a parent document of the defendants in respect of the above said land, the particular land gets the irrigation right from the subject matter suit Well situated at Survey No.24/4 only as a second option, whereas under the said sale deed it is stated that another well situated at Survey No.24/17 is the source of irrigation for such land. Therefore, she contended that the defendants cannot seek for ayacut right in respect of Survey No.24/15. In support of her submission, the learned counsel also relied on the decision of the learned Single Judge of this Court reported in 1970 (1) MLJ 376, Sivarama Pillai and Others vs Marichami Pillai.

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6.Per contra, the learned counsel appearing for the respondents supported the concurrent findings rendered by the courts below and sought for rejection of the appeal.

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7.Heard both sides and perused the materials placed before this court.

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8.The appellant as the plaintiff is seeking for a declaration of ayacut rights in respect of some lands shown as schedule 'B' and denial of such right in respect of some lands shown as schedule 'C'. It is also not in dispute that the

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plaintiff is the joint owner with the defendants in respect of the lands shown in 'B' schedule, whereas the defendants are the exclusive owners of 'C' schedule properties. Even in respect of 'C' schedule properties containing three items, the trial court accepted the contentions of the plaintiff and decreed the suit denying the ayacut right in respect of the land situated at Survey No.24/11C and 20 of schedule 'C'. Such decree granted by the trial court has not been challenged by the defendants and therefore, the judgment and decree granted by the trial court in so far as those lands are concerned, have become final and conclusive. Therefore, the only dispute between the parties before this court is in respect of land situated at Survey No.24/15.

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9.The contention of the plaintiff is that when the defendants claimed right of irrigation to the land situated at S.No.24/15, the very parent document of the defendants, marked as Ex.A7, indicates that there are two sources of irrigation out of which the subject matter of well comes only as a second option. I have perused Ex.A7. I am unable to accept the contention of the appellant on this aspect. The very recitals of the said document clearly indicates that the land conveyed at Survey No.24/15 is shown to have the irrigation right from the subject matter well at Survey No.24/4 as well as another well situated at Survey No.24/17. Needless to say whether it is a second option or first option, when the very document is conferring the irrigation right for the land at Survey No.24/15 even from the subject matter well situated at Survey No.24/4, I do not think that the plaintiff can drive the defendants to get the irrigation only from the other well and not from the subject matter well. Therefore, I am of the view that these factual aspects gone into by the courts below in detail to reject the claim of the plaintiff in respect of the disputed survey No.24/15, on appreciation of the evidence let in by the parties, does not require any interference by this court.

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10.Learned counsel for the appellant relied on the decision of this court reported in 1970 (1) MLJ 376 (cited supra) to contend that the lands which formed the subject matter of the document cannot be dissociated from the well. In fact, the facts and circumstances of that case are totally different and distinguishable. Even otherwise, as has been held in the said case, the lands cannot be dissociated from the well, when such right has been conferred in the document under Ex.A7 itself, as has been discussed supra. Therefore, I find that the above decision is not helping the appellant in any manner and on the other hand, it only helps the respondents. Accordingly, the substantial question of law is answered against

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the appellant. Thus, the second appeal fails and the same is dismissed. No costs. The connected miscellaneous petition is also dismissed.

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Sd/-
Assistant Registrar(CS VI)
//True Copy//
Sub Assistant Registrar
vri
To
1.The Subordinate Judge,
Gingee.
2.The Additional District Munsif,
Gingee.
+1cc to M/S.G.Sankaran, Advocate Sr.61656
+1cc to M/S.K.Krishnan, Advocate sr.60762
Second Appeal No.629 of 2015
srg 30/12/2016

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K.Ramakrishnan v. Govindasamy Gounder(Decs)

Case brief

What is this about?

What did the court decide?

K.Ramakrishnan v. Govindasamy Gounder(Decs)

Case brief

What is this about?

What did the court decide?

What the court decided

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