Dismissed

R. Iyaswamy Pandian, v. S.I.P. Rajeswaran

Madras HC15 Dec 2022SA(MD)/779/2022

Case brief

AI extract

What is this about?

The Madurai Bench of the Madras High Court dismissed a second appeal filed under CPC Sec. 100 regarding a dispute over water rights. The court held that since the dominant tenement (Schedule A) possessed its own well, there was no impossibility of enjoyment to support a claim for easement of necessity. The appeal was thus rejected as not meriting interference.

What did the court decide?

Second appeal dismissed; no costs; connected miscellaneous petition closed.

R. Iyaswamy Pandian, Vs S.I.P. Rajeswaran — Property and Title | Madras HC (2022)

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S.A.(MD) No.779 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 15.12.2022

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CORAM

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THE HON'BLE Mr. JUSTICE B.PUGALENDHI

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S.A(MD)No.779 of 2022 and C.M.P(MD)No.11836 of 2022

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R.Iyaswamy Pandian ... Appellant/Appellant/Plaintiff

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Vs.

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1.S.I.P.Rajeswaran

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2.R.P.Kannan ... Respondents/Respondents/Defendants

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Prayer:- Second Appeal is filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 02.11.2018 passed in A.S.No.19 of 2018 on the file of the Principal Subordinate Judge, Nagercoil, confirming the judgment and decree dated 18.01.2018 made in O.S.No.283 of 2014 on the file of the Principal District Munsif Court, Nagercoil.

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For Appellant : Mr.G.Prabhu Rajadurai For Respondents : Mr.G.Mohan Kumar

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_________Page 1 of 8

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https://www.mhc.tn.gov.in/judis

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S.A.(MD) No.779 of 2022

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J U D G M E N T

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This Second Appeal is filed by the plaintiff in O.S.No.283 of 2014 as against the concurrent findings of the courts below.

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2. This appellant has filed the above suit in O.S.No.283 of 2014 for the relief of declaration that the appellant is having a right to draw water from the well, borewell and pumpset situated in 'B' schedule property. He also sought for an injunction restraining the respondents from obstructing this appellant from drawing water from 'B' schedule property to 'A' schedule property and for a declaration to declare that he is having a right of way over 'C' schedule property to reach 'D' schedule property and also for a injunction restraining the respondents from interfering with his right of way.

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3. The suit was dismissed by the Principal District Munsif Court, Nagercoil by its judgment and decree dated 18.01.2018 and the First Appeal preferred by this appellant before the Principal Subordinate Court,

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_________Page 2 of 8

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https://www.mhc.tn.gov.in/judis

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S.A.(MD) No.779 of 2022

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Nagercoil in A.S.No.19 of 2018 was also dismissed by its judgment and decree dated 02.11.2018 and as against the concurrent findings, the present Second Appeal is filed.

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4. In this Second Appeal, the following substantial questions of law have been raised:

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i) Whether the courts below are correct in law in dismissing the plaintiff's suit when it is clearly proved that the properties in schedule A and B were previously lie as single unit and though the well and pumpset in B schedule water drawn to the coconut trees in A schedule and the plaintiff is having right even after the segregation under Section 13 of the Indian Eastment Act?

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ii) Whether the Courts below are correct in law in denying the easement right claimed by the plaintiff being the dominant easement from the servient tenement when such right of plaintiff is protected under Section 13 of the Easement Act?

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iii) Whether the courts below are correct in law in

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_________Page 3 of 8

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https://www.mhc.tn.gov.in/judis

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S.A.(MD) No.779 of 2022

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denying the right of drawing water from the B schedule through the C schedule finding that the 'A' schedule already had a borewell and such right does not exist?

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5 . The learned counsel for the appellant submits that the suit schedule property consist of 3 schedules in Sy.No.83/10 of Agastheeswaram Village, which are described as 'A', 'B' and 'C' schedules. 'A' schedule is measuring 31.247 cents and 'B' schedule is measuring 41.241 cents and 'C' schedule is measuring about length of 244 links and width of 9 links pathway. By way of a settlement deed dated 06.05.2014, 'A' schedule property was given to the share of the appellant and even before the execution of settlement deed dated 06.05.2014, 'A' and 'B' schedule properties were enjoyed jointly. The coconut trees standing in 'A' schedule properties were irrigated through the well in 'B' schedule property. 'C' schedule property is pathway from 'A' schedule property to 'B' schedule property. Though by settlement deed dated 06.05.2014 the land in 'A' schedule property alone was given to him, he is having a easementary right as a dominant tenement to utilize water from 'B' schedule property to

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_________Page 4 of 8

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https://www.mhc.tn.gov.in/judis

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S.A.(MD) No.779 of 2022

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irrigate his coconut trees in 'A' schedule property. He is also having an eastment of necessity.

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6. This Court gave its anxious consideration to the submissions made by the learned counsel appearing on behalf of the appellant and carefully perused the materials placed on record.

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7. This appellant/plaintiff is the son of the first defendant and the brother of the second defendant. By way of a settlement deed dated 06.05.2014(Ext.A.1). 'A' schedule property was given to this appellant/ plaintiff. The appellant claims that there are grown-up coconut tress in 'A' schedule property and those trees were irrigated only through the source of water from the well and pumpset in 'B' schedule property. Since 'A' schedule and 'B' schedule properties were used previously jointly even after the segregation of property by way of settlement, he is entitled for the eastmentary right as a dominant tenant.

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8. The trial court and the First Appellate Court have rejected the

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_________Page 5 of 8

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https://www.mhc.tn.gov.in/judis

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S.A.(MD) No.779 of 2022 plea of eastment of necessity raised by the appellant/plaintiff and therefore, this present Second Appeal is filed on the above substantial questions of law. Easement of necessity can arise only when there is a cessation of common ownership. It arises where both the servient and dominant tenements were in common ownership and by dispossession, there was a disintegration of the tenements. When there is an impossibility of enjoyment, then the eastment of necessity arises.

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9. There is no reference about any standing coconut trees in 'A' schedule property and at the same time 'A' schedule property also consists of a well on south east of the property. 'A' schedule property is also having a well then there is no impossibility of enjoyment by this appellant. Therefore, this Court is not inclined to entertain this Second Appeal. Accordingly, this Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.

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.12.2022

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Index : Yes/No Internet : Yes/No CM

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_________Page 6 of 8

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https://www.mhc.tn.gov.in/judis

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S.A.(MD) No.779 of 2022

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To,

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The Principal Subordinate Judge, Nagercoil,

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The Principal District Munsif Court, Nagercoil.

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Page 7 of 8

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https://www.mhc.tn.gov.in/judis

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S.A.(MD) No.779 of 2022

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B.PUGALENDHI, J.

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S.A(MD)No.779 of 2022 and C.M.P(MD)No.11836 of 2022

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.12.2022

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_________Page 8 of 8

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https://www.mhc.tn.gov.in/judis

R. Iyaswamy Pandian, v. S.I.P. Rajeswaran

Case brief

What is this about?

What did the court decide?

R. Iyaswamy Pandian, v. S.I.P. Rajeswaran

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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