Allowed

Krishnan v. Shanmugasundaram

Madras HC1 Apr 2019SA/511/2006

Case brief

AI extract

What is this about?

In a second appeal regarding easementary rights to water channels, the High Court set aside the first appellate court's decree favoring the plaintiff. The court held the lower appellate judgment was vitiated for lack of reasoning and failed to appreciate evidence disproving the channel's existence and usage.

What did the court decide?

The judgment and decree dated 20.04.2005 passed in A.S.No.16 of 2004 are set aside and the judgment and decree dated 18.06.2003 passed in O.S.No.2 of 2000 are restored.

Krishnan Vs Shanmugasundaram — Contract and Commercial Disputes | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 12.03.2019 PRONOUNCED ON: 01 .04.2019 CORAM: THE HON'BLE MR.JUSTICE T.RAVINDRAN S.A.No.511 of 2006 and C.M.P.No.6362 of 2006

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1.Krishnan

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2.Manonmani

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... Appellants/Respondents/Defendants

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Vs.

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Shanmugasundaram

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... Respondent/Appellant/Plaintiff

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Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 20.04.2005 in A.S.No.16 of 2004 by Fast Track Court No.IV, Erode at Bhavani reversing the judgment and decree dated 18.06.2003 in O.S.No.2 of 2000 on the file of the Principal District Munsif, Bhavani.

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For Appellants : M/s.P.Srividya for M/s.S.Viswanathan

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For Respondent: M/s.K.Ponmani for M/s. Zeenath Begum

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Challenge in this second appeal is made to the judgment and decree dated 20.04.2005 passed in A.S.No.16 of 2004 on the file of the Additional District Judge, Fast Track Court No.IV, Erode at Bhavani reversing the judgment and decree dated 18.06.2003 passed in O.S.No.2 of 2000 on the file of the Principal District Munsif Court, Bhavani.

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The second appeal has been admitted on the following substantial questions of law.

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1.Whether the judgment of the lower Appellate Court is vitiated in not framing the proper points for consideration as required by Order 41 Rule 31 C.P.C?

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2.Whether the learned District Judge erred in decreeing the suit when the plaintiff has not established his claim based on easement of necessity or prescription.

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3.Whether the learned District Judge erred in reversing the judgment of the trial court in a summary manner without adversing to the various factors relied on by the trial court.

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Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.

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For the sake of convenience, the parties are referred to as per the rankings in the trial court.

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The suit has been laid by the plaintiff against the defendants for the relief of declaration that he is entitled to take water to irrigate his lands lying in Goundhapadi village in R.S.Nos.757/4A, 757/4B and 757/5 by drawing water through koppu channel from lower Bhavani project by way of easmentary right by prescription and easmentary right by way of necessity and prayed for the relief of permanent injunction to restrain the defendants from interfering with the abovesaid right of the plaintiff.

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Briefly stated, according to the plaintiff, the lands lying in R.S.No.757/4A, 757/4B and 757/5 and the other lands belonged to his grandfather Kumarasamy Gounder ancestrally and in the partition effected between Kumarasamy Gounder and the plaintiff's father Vivekanandhan, the properties were divided and R.S.No.757/4A, 4B, 5,10 and 11 were allotted to the share of Kumarasamy Gounder and Kumarasamy Gounder had bequeathed the said properties to the plaintiff by way of a Will dated 20.10.1990 and after his demise on 02.06.1992, the abovesaid Will has come to the force and in connection with the Will, the litigation is pending between the plaintiff and his grandmother and aunt and the same is now at the stage of second appeal in the High Court. The defendants had purchased certain lands lying on the north-western corner of R.S.No.754/4A, 4B,5,10 and 11 in R.S.No.746/1,2,4,5 and 757/2,3,6 and 7 on 28.09.1998, with wrong description of the properties and furthermore according to the plaintiff, R.S.Nos.747/3 and 757/1 had been acquired by the Government for lower Bhavani Channel Project and accordingly it is stated that the suit koppu challenel passes through the land belonging to the defendants and the same is depicted in the plaint plan and the lands of the plaintiff and the defendants

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are Ayacut lands of lower Bhavani Channel Project and a portion of the Government koppu channel in R.S.No.757/1 is running south of R.S.No.757/4A, 4B and 5 and the abovesaid lands are at a higher level than the abovesaid acquired channel and hence water could not be drawn effectively from lower Bhavani Channel and therefore the plaintiff and his ancestors had been drawing water only through the suit koppu channel for the past 45 years which is running on the northern side of the defendants' property in R.S.No.757/2 and 757/3 east-west about 150ft in length, 3 ft in width and the suit koppu channel has been in existence from 1955 onwards and the plaintiff has no other source of drawing the water except the suit koppu channel and accordingly had eastmentary right by way of prescription and by way of necessity in respect of the same and the defendants had, developing enmity on account of the refusal of the plaintiff to sell the lands to them, attempted to obliterate the suit AB koppu channel and hence according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.

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The defendants resisted the plaintiff's suit contending that the claim of the plaintiff that he had derived the properties belonging to his grandfather by way of a Will dated 20.10.1990 is not admitted and the plaintiff has to establish the said fact and infact the plaintiff's suit is bad for non-joinder of the other heirs of Kumarasamy Gounder and the description of the properties and the claim of the plaintiff that the defendants had purchased the properties on 29.09.1998 by giving wrong description of the properties is false and on the other hand the plaint plan is wrong. The suit AB koppu channel is only a myth and an imaginary one and the plaintiff is not entitled to any vaikkal except the acquired channel of the Government and the case projected by the plaintiff is that his lands are higher in level and he has been irrigating his lands through the alleged suit AB koppu channel for the past 45 years is false and thereby prescribed title by way of prescription and the eastment of necessity is also false and the further case of the plaintiff that the defendant had attempted to obliterate the AB koppu channel is false and on the date of the suit, no water is flowing in the alleged suit AB koppu channel and on the other hand, the crops had been raised by the plaintiff in his lands and therefore, the plaintiff is not irrigating his lands through the suit AB koppu channel by drawing the water from lower Bhavani Project and having independent source of irrigation and if there is any obstruction in the water flows for the ayacut lands, the only remedy available to the plaintiff is to approach the Revenue Officials with reference to the same and the plaintiff has not come with the clean hands and not entitled to seek and obtain the reliefs as prayed for and hence the suit is liable to the dismissed.

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8.In support of the plaintiff's case, P.Ws.1 to 4 were examined. Exs.A1 to A20 were marked. On the side of the defendants, D.Ws.1 and 2 were examined. Exs.B1 to B4 were marked. Exs.C1 and C2 were also marked.

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9.On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial court was pleased to dismiss the plaintiff's suit. On appeal by the plaintiff, the first appellate court, on a consideration of the materials placed on record and the submissions made, was pleased to setaside the judgment and decree of the trial court and by way of allowing the appeal preferred by the plaintiff, decreed the suit in favour of the plaintiff as prayed for. Impugning the same, the defendants have come forward with the present second appeal.

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According to the plaintiff, his grandfather Kumarasamy Gounder and his father Vivekanandhan had effected partition in respect of the properties belonging to them on 15.07.1978 and the copy of the abovesaid partition deed has been marked as Ex.A1. Furthermore, according to the plaintiff, his grandfather Kumarasamy Gounder had bequeathed the properties belonging to him as allotted to him under Ex.A1 partition deed namely RS.757/4A, 4B,5,10 and 11 by way of a Wlll dated 20.10.1990 and accordingly it is putforth by the plaintiff that on the demise of his grandfather, the abovesaid Will has come into force and he had acquired the title to the said properties. The case has been projected by the plaintiff that he is entitled to irrigate the abovesaid lands by drawing water from the lower Bhavani Project through the acquired Ayacut channel as well as the suit AB koppu channel, which according to the plaintiff is running in the lands of the defendants on the northern side in R.S.No.757/2, 757/3 and it is further putforth by the plaintiff that the abovesaid AB koppu channel has been in existence from 1955 onwards and accordingly he and his predecessors had been drawing water through the suit koppu channel and thereby acquired easmentary right by way of prescription and necessity with reference to the same and the defendants had acquired their lands by giving wrong description and developing enmity with the plaintiff, attempted to interfere with his right to irrigate his lands by drawing water through the suit AB koppu channel and hence according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.

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11.Per contra, the defendants had disputed the existence of the suit AB Koppu channel and according to them the plaintiff or his ancestors had not drawn water to irrigate their lands through the alleged suit koppu channel and according to them, the plaintiff is entitled to draw water only through the acquired channel of the Lower Bhavani Project and other than the said acquired channel, the plaintiff is not entitled to claim

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any channel right in the lands belonging to the defendants and no water has been running in the alleged suit koppu channel and despite the same, the plaintiff is found to have been irrigating his lands, which would go to show that the plaintiff is having independent source of irrigation and further according to the defendants, if at all, the suit koppu channel had been in existence and there had been any obstruction with reference to the same, the only remedy available to the plaintiff is to approach the Revenue Officials with reference to the same and not entitled to lay the civil suit and hence prayed for the dismissal of the plaintiff's suit.

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The plaintiff claims title to his lands by way of a Will dated 20.10.1990 said to have been executed by his grandfather Kumarasamy Gounder and as regards the genuineness of the Will, it is seen that the Civil suit is pending and at present, the same is at the stage of the second appeal in the High Court. The abovesaid suit is between the plaintiff and his grandmother and aunt. But insofar as the present case is concerned, we are only to decide whether the suit AB koppu channel is in existence and whether the plaintiff is entitled to draw water through the said koppu channel to irrigate his lands.

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According to the plaintiff, the suit AB koppu channel also forms part of lower Bhavani Project and hence the same cannot be allowed to be obliterated by the defendants and inasmuch as the plaintiff and his ancestors had been drawing the water of the lower Bhavani Project through the suit AB Koppu channel for more than 45 years, they had accordingly acquired easmentary right over the same by way of prescription and also by way of necessity and inasmuch as the defendants without any authority attempted to obliterate the said channel, it is stated that the plaintiff has been necessitated to institute the suit. Inasmuch as the existence of AB koppu channel is disputed by the defendants, at the foremost, the plaintiff has to establish that suit AB koppu channel is in existence on ground, as putforth by him. As abovenoted, the partition deed dated 15.07.1978 effected between Kumarasamy Gounder and the plaintiff's father Vivekanandhan has been marked as Ex.A1. No reference has been made about the alleged AB koppu channel in the abovesaid partition deed and the same has been admitted by P.W.1 examined on behalf of the plaintiff. In fact, P.W.1 had admitted that in none of the documents projected by the plaintiff, there is any reference about the suit AB koppu channel. Furthermore, the FMB with reference to the survey No.757 has been marked as Ex.B4 and therein also there is no reference about the existence of the suit AB koppu channel and the same has been admitted by the plaintiff. The suit AB koppu channel is running on the northern side of the defendants' land in R.S.No.757/2, 3 east-west and if as alleged by the plaintiff, the same had been in existence from

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1955 onwards and had been in the usage of the plaintiff and his ancestors as claimed in the plaint, definitely the existence of the abovesaid channel would have been reflected in the field map marked as Ex.B4. On the other hand, inasmuch as, no such koppu channel has been in existence in the lands belonging to the defendants as put forth by the plaintiff, the same has not been reflected in the field map projected in the matter.

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According to the plaintiff, the suit AB koppu channel is passing in the lands of the defendants in R.S.No.757/2 and 757/3 and thereafter proceeding to his lands and adjacent to the lands belonging to the defendants, as abovestated, R.S.No.757/4A is lying on the eastern side and the plaintiff does not claim any ownership over the lands in R.S.No.757/4A, however during the course of cross examination, the plaintiff has admitted that the lands in R.S.No.757/4A belongs to Boomidhana Movement and when the plaintiff has not putforth the case that the AB koppu channel is also passing through R.S.No.757/4A and thereafter joins his lands, as rightly determined by the trial court, there is no scope for the plaintiff to draw water through the alleged AB koppu channel without the said channel shown or establishing to be passing through R.S.No.757/4A also. That apart, the plaintiff has also not endeavored to examine the owner of R.S.No.757/4A to evidence that the suit koppu channel also passes through the said lands and thereafter joins the plaintiff's land and thereby the plaintiff is drawing water through Bhavani Project Scheme. Therefore, the existence of AB koppu channel on ground has also not been clearly brought out by the plaintiff either in the plaint or in the plan and the abovesaid feature has also been correctly taken into consideration by the trial court for not accepting the plaintiff's case.

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It is mainly putforth by the plaintiff that the defendants who had acquired their properties in R.S.No.757/2 and 3 by way of a sale deed dated 28.09.1998 and that they have deliberately or wantonly given the wrong description of the properties with a view to deprive the plaintiff from taking water through the said AB koppu channel lying in the said lands. If really the said AB koppu channel is lying on the northern extreme of the lands comprised in R.S.No.757/2 and 3, the same would have been shown or reflected as the northern boundary of the abovesaid properties in the sale deed of the defendants marked as Ex.A2. On the other hand, on a perusal of Ex.A2, it is seen that the lands comprised therein are shown to be lying to the south of the lands of Sellianna gounder and others. In such view of the matter, the case of the plaintiff that the defendants had wrongly described the properties in their sale deed, as such, cannot be accepted. In what manner the defendants had wrongly described the properties in their sale

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deed, there is no acceptable explanation offered by the plaintiff. According to the plaintiff, R.S.No.747/3 and 757/1 had been acquired for the course of channel, earmarked for the lower Bhavani Project Scheme. However the plaintiff has not come forward with the clear materials to substantiate the abovesaid factors, and in addition to that when the plaintiff's documents do not indicate that the said AB suit koppu channel is in existence and only through the same, the plaintiff and his predecessors in interest had been drawing water from the Bhavani Project Scheme, the plaintiff cannot be allowed to contend that the defendants had wrongly described their properties in their sale deed Ex.A2 and thereby attempting to interfere with the plaintiff's entitlement to draw water through the suit AB koppu channel, as such, particularly the plaintiff having failed to explain as to, in what aspects, the defendants had given the description of the properties in the sale deed erroneously. Knowing fully well that the plaintiff has no material to show the existence of the suit AB koppu channel and furthermore as abovenoted, when the field map of survey No.757 does not shown the existence of suit AB koppu channel as admitted by the plaintiff during the course of his evidence, it is seen that for sustaining his case, the plaintiff only relies upon the Commissioner's report and plan marked as Exs.C1 and C2. No doubt, in Exs.C1 and C2, there is a reference about the suit AB koppu channel in the defendants' lands and on that footing, it is putforth by the plaintiff's counsel that the first appellate court is justified in granting the reliefs sought for by the plaintiff. However, as rightly determined by the trial court, on a perusal of the Commissioner's report and plan in entirety, it is found that at the time of the inspection of the properties by the concerned Advocate Commissioner, no water was flowing through the alleged AB koppu channel and P.W.1 examined on behalf of the plaintiff has also admitted during the course of his evidence that water would flow through the said channel only once in a year and furthermore, has also admitted that at the time of the inspection of the properties by the Advocate Commissioner, various crops had been raised in the plaintiff's lands such as sugar cane, paddy and coconut trees etc., and furthermore, it has also been admitted by P.W.1 that through the well and four bore pumps, the plaintiff's lands are being irrigated. On the other hand, as could be seen from the Commissioner's report and plan, the lands belonging to the defendants, are lying fallow without any crops and if really the suit AB koppu channel has been in existence and water had been flowing through the same under the Bhavani Project Scheme, crops would have also been raised in the defendants' lands at the time of the inspection of the properties by the Advocate Commissioner. On the other hand, despite the position that no water is found to be flowing in the alleged AB koppu channel at the time of inspection of the Advocate Commissioner, various

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crops had been raised in the plaintiff's land by well irrigation and bore pumps and in such view of the matter, the case of the plaintiff that other than the suit AB koppu channel, he has no other source of irrigation for cultivating his lands, as such, cannot be believed and accepted in any manner.

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16.That apart, the Assistant Engineer of the P.W.D examined as P.W.4 has also admitted that he cannot say as to what are the lands which had been acquired for forming the channel course under the Bhavani Project Scheme and through what lands the said channel course runs. As abovenoted, the FMB sketch projected in the matter does not indicate the existence of the suit AB koppu channel. Furthermore, as per the evidence of P.W.4, if there is any obstruction in the acquired channel course, the only remedy available to the aggrieved person is to approach the Revenue Officials for sending necessary redressal. However, the plaintiff has not approached the Revenue Officials concerned with reference to his alleged case, as regards the alleged obliteration of the suit AB koppu channel on the part of the defendants. No reason has been offered by the plaintiff as to why he had not addressed the Revenue Officials with reference to the present case projected by him. If the Revenue Officials had been approached by the plaintiff for sorting out the issues involved in the matter effectively, the Revenue officials would be the competent authority to determine the existence of the channel course and particularly determine whether the suit AB koppu channel is in existence on ground or not and the plaintiff instead of adopting the said course, has rushed to the Civil Court for necessary redressal. That apart when from the Commissioner's report and plan, the suit AB koppu channel shown in the same is found to be not tallying with the suit AB koppu channel shown in the plaint plan and furthermore, when the acquired channel course of the Bhavani Project Scheme has not been shown by the Advocate Commissioner in his report and plan as available in the field map projected in the matter and when the channel course has been shown in a different manner in the Commissioner's report and plan and in such view of the matter, the Commissioner's report and plan cannot the sole basis for accepting the plaintiff's case and as rightly determined by the trial court, no safe reliance could be placed upon the Commissioner's report and plan to conclude that the suit AB koppu channel is in existence on ground as sought to be made out by the plaintiff. When the plaintiff has failed to correlate the contradictions noted in the channel course as depicted in the field map and as noted in the Advocate Commissioner's report and plan Exs.C1 and C2 and as putforth by him in the plaint plan and when with reference to the same, no proper explanation has been putforth by the plaintiff by placing acceptable and reliable materials, merely on the basis of the Commissioner's report and plan, we cannot conclude that other than the suit AB koppu

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channel, the plaintiff has no source on irrigation to cultivate his lands.

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17.The plaintiff would contend that his lands situated to the north of the acquired channel course of the Bhavani Project Scheme is higher in level and therefore, he is not in a position to irrigate his lands through the acquired channel course and he could irrigate his lands only through the suit AB koppu channel and in that context his case should be accepted, based on the Commissioner's report and plan. However, when the plaintiff has failed to establish the existence of suit AB koppu channel as such and when the plaintiff has failed to establish that he and his predecessors in title has been enjoying the suit AB koppu channel for drawing water under the Bhavani Project Scheme and thereby cultivating their lands for several years and on the other hand, when the plaintiff is found to have cultivated his lands through other source without the aid of the alleged koppu channel as projected by him and when the plaintiff has miserably failed to establish that he and his predecessors in interest had been using the suit koppu channel for more than the statutory period and the same is the only source of irrigation for cultivating his lands, in such view of the matter, when there is no record projected on the part of the plaintiff to establish the existence of the suit AB koppu channel and when the Commissioner's report and plan relied upon by the plaintiff as above discussed cannot be safely accepted for upholding the plaintiff's case and furthermore when the plaintiff has also not endeavored to come forward to explain his case by entering into the witness box, in all, it is found that the plaintiff has failed to establish his entitlement to the alleged suit AB koppu channel by way of eastmentary right, by prescription and by necessity as determined by the trial court and the trial court is found to have analysed the materials projected in the matter, both oral and documentary and adjudicating the same both factualwise as well as legalwise, rightly determined that the plaintiff is not entitled to obtain the reliefs prayed for.

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18.However the first appellate court on the footing that the defendants had not specifically denied the case projected by the plaintiff in the written statement and that their defence are vaguely made and on the premise that inasmuch as, the plaintiff's lands also fall under the Ayacut of Bhavani Project Scheme and the suit AB koppu channel running through the patta lands is not reflected in the field maps and thereby relying upon the Commissioner's report and plan is found to have accepted the plaintiff's case. Other than the abovesaid discussions, the first appellate court has not gone into the materials projected in the matter by considering the pros and cons of the same, one way or the other and thereby endeavored to

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dispose of the appeal. As rightly contended by the defendants' counsel, in the written statement filed, it is seen that they had disputed the case of the plaintiff particularly disputing the very existence of the suit AB Koppu channel and also challenged the alleged easementary right in the said AB koppu channel said to have been exercised by the plaintiff with reference to the same as putforth in the plaint.

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In such view of the matter, the determination of the first appellate court that the defendants have vaguely denied the case projected by the plaintiff and thereby they have admitted the plaintiff's case, as such, cannot at all be legally sustained. If the suit AB koppu channel has been in existence for several years, the same would have also been reflected in the field map. Therefore the abovesaid factor cannot be easily ignored by the first appellate court by holding that the suit AB koppu channel running in the patta lands is not reflected in the field map. On what basis the first appellate court has come to the abovesaid conclusion, absolutely there is no explanation or reasonings. With reference to the same, the Assistant Engineer examined as P.W.4 has not stated anything. In such view of the matter , it is found that on surmises and conjectures, the first appellate court is found to have adjudicated the issues involved in the matter without any basis, and when the report and plan of the Advocate Commissioner could not be safely relied upon, as above pointed out, and despite the non-flowing of water in the alleged koppu channel, the plaintiff's lands are found to be irrigated and various crops had been raised thereon, accordingly, it is found that the plaintiff has not been depending upon the AB koppu channel for cultivating his lands, as such, and accordingly he is unable to establish the existence of the same on ground by acceptable materials and also establish his right of eastment over the same by way of prescription as well as by way of necessity by placing acceptable and reliable materials. Therefore, as rightly contended by the defendants' counsel the judgment and decree of the first appellate court is found to be not adhering to the principles of law outlined under Order 41 Rule 31 Cpc and the judgment of the first appellate court is found to be rendered in a cryptic manner without giving any reasons as such for upholding the plaintiff's case. The first appellate court is found to have accepted the plaintiff's case without there being any material on the part of the plaintiff to establish his claim of eastmentary right over the alleged Koppu channel as projected. The first appellate court has not considered the reasonings of the trial court and without pointing out as to how the trial court had committed an error in arriving at the conclusion for dismissing the plaintiff's case, on surmises and conjectures, is found to have set aside the well considered judgment and decree of the trial court and on that ground also,

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as rightly putforth, the judgment and decree of the first appellate court gets vitiated. In the light of the abovesaid reasonings, the judgment and decree of the first appellate court does not merit acceptance. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the defendants.

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20.For the reasons aforestated, the judgment and decree dated 20.04.2005 passed in A.S.No.16 of 2004 on the file of the Additional District Judge, Fast Track Court No.IV, Erode at Bhavani are set aside and the judgment and decree dated 18.06.2003 passed in O.S.No.2 of 2000 on the file of the Principal District Munsif Court, Bhavani are restored. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any is closed.

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Sd/-

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Assistant Registrar(CS VI)

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//True Copy//

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Sub Assistant Registrar

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The Additional District Judge, Fast Track Court No.IV,

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Erode at Bhavani.

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2.The Principal District Munsif, Principal District Munsif Court, Bhavani.

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Copy to

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The Section Officer, VR Section, High Court, Chennai.

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+1cc to M/s. Zeenath Begum, Advocate sr.31183 +1cc to Mr.A.Muthukumar, Advocate sr.31385

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S.A.No.511 of 2006 and C.M.P.No.6362 of 2006

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nr 15/10/2019

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Krishnan v. Shanmugasundaram

Case brief

What is this about?

What did the court decide?

Krishnan v. Shanmugasundaram

Case brief

What is this about?

What did the court decide?

What the court decided

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