This second appeal challenged a first appellate decree granting an easementary right for water channel usage. The High Court found evidence proved the channel ran across the appellant's land to the defendant's, dismissing the appeal and confirming the lower decree.
The second appeal was dismissed, confirming the lower appellate judgment and decree dated 25.04.2012.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A. No. 818 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 13.11.2024 :: Pronounced on : 19.12.2024
CORAM
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
S.A. No. 818 of 2012
Anaikounder ...Appellant
Vs.
PRAYER: Second Appeal is filed under section 100 of the Code of Civil Procedure, 1908, to set aside the judgment and decree dated 25.04.2012 made in A.S. No. 71 of 2011 on the file of the II Additional Subordinate Court, Villupuram, reversing the judgment and decree dated 15.12.2010 made in O.S. No. 158 of 2008 on the file of the I Additional District Munsif Court, Thirukoilur.
For Appellant : Mrs.V.Srimathi For Respondents : Mrs.T.R.Gayathiri for M/s.Sarvabhauman Associates
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JUDGMENT
The appellant is the plaintiff who has filed a suit for the relief of the declaration and permanent injunction in respect of the suit property and got a decree before the trial Court but got it modified/reversed before the first appellate Court.
2. The short facts of the plaint runs as under :-
The suit property was originally belonged to one Vimala and the plaintiff had purchased the same from Vimala by virtue of a sale deed dated 02.06.1974. Pursuant to the said sale deed the plaintiff had taken possession of the suit property and had been in enjoyment of the same. The mutation of revenue records has been done in favour of the plaintiff and he is paying kist.
The first defendant has got his property in Survey No. 228/5. One Chandrababu has got his land on the northern side of the property. The suit property and the property on the Eastern side has been irrigated through the lake water. The channel runs from the lake originates from the western side and runs towards East and then to the south and stops with the lands of Chandrababu Naidu and the plaintiff. There is no channel in the lands of the
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plaintiff and the revenue records would also show the same.
2.1. The first defendant was working in the District Collectorate of Villupuram and taking advantage of his possession and along with his brothers, viz., defendants 2, 3 and 4, son of the defendants sister has tresspassed illegally upon the lands of the plaintiff and damaged the crops and created a channel. The plaintiff has given a police complaint and sent a legal notice but the defendant did not stop the illegal activity. Hence, he has filed a suit for relief of declaration and also permanent injunction.
It is true to state that the suit property belongs to the plaintiff and that he has been in enjoyment of the same. It is also true that the channel arising from the lake ends with the plaintiff's land. But it is false to state that there is no channel in the defendants' land and that the defendants have illegally tresspassed on the plaintiff's land and damaged the plaintiff's crops. From the point where the channel runs on the northern side the channel continues west to East and irrigates the lands belonging to the defendants and the land in between the plaintiffs and the defendants land and the lands of one
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Arumugam lying between the plaintiffs and the defendants and the said channel has been in use for more than 100 years and the defendants are being in enjoyment of the same without any objection from any quarters. In fact the defendants had got easementary right to take water to the lands through the channel. In an enquiry made on the police complaint made by the defendants, the plaintiffs accepted to restore the channel. Without restoring the channel,
he filed a suit with false averments and got an order of injunction on 05.01.2008. On a petition given by the defendant the Deputy Tahsildar has inspected the spot and advised the plaintiff(s) to restore the channel and he also obeyed the said order and restored the said channel. Thereafter, he once again destroyed and raised paddy crops by suppressing the fact that the suit has been filed and got a decree in his favour. The defendants would file a counter-claim by paying the court-fees.
“ (1) jhth epyj;jpy; cs;s fpis tha;f;fhy; tHpahf gpujpthjpapd; epyj;jpw;F 100 tUlj;jpw;Fk; nkw;gl;l
fhykhfVhp jz;zPh; tUtjhft[k; gpujpthjpf;F jhth
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(
S.A. No. 818 of 2012
epyj;jpy; tHpahf tha;f;fhy; bry;y trjpa[hpik
cWj;Jf; fl;lis ghpfhuk; bgw thjpf;F chpika[s;sjh ?
(3) jug;gpdh;fSf;F fpilf;ff;Toa ,ju ghpfhuk; vd;d ?”
to A7 were marked and on the side of the defendants, four witnesses were examined as DW1 to DW4 and Exs.B1 is marked. The Commissioner's report and Rough Sketch has been marked as Exs.C1 and C2 respectively.
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7.
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re-appreciate the evidence and arrived at a wrong conclusion that there was a channel running through the plaintiff's land. In fact, the First Appellate Judge has also observed that on the basis of the FMB sketch, channel stops with the plaintiffs land. However, he had chosen to rely on the cross-examination of the PW1, which is contrary to the written-documents.
7.1. Having rendered such a finding, the First Appellate Court has granted the relief of easementary right by taking into account of plaintiff's oral evidence. Even in the written-statement of the defendants, they did not specify what type of channel is running through the plaintiff's land. In the written-statement of the defendants, they had pleaded that the lake water has been running to his land through branch channel and got easementary right by having been in enjoyment of the channel for more than 100 years; but the records do not prove the same. Hence, this Second Appeal should be allowed.
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have examined the witnesses. Even PW1 has also admitted the same. The report of the Commissioner shows that there was a water channel running in the suit property. The Trial Court has not properly appreciated the above evidence. But the First Appellate Court has considered the proof of easementary right over the channel and had rightly dismissed the suit.
the decree when the defendants have not sought for any easementary right in and over the property?
2. When the defendants have not established the existence of any channel but admitted the channel ends with the property of the plaintiff, is the lower appellate court right in recognizing an easementary right with the defendants?
3. In the absence of admission to the plaintiff's title and proof
of enjoyment of right or water way for over a statutory period, could there be an easementary right?”
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to one Arumugam. According to the evidence of the plaintiff, who was examined as PW1, both the lands of the plaintiff and the defendants are being irrigated through the lake water and they do not have bore well in their respective lands.
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14.
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16.
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like FMB sketch to show that the tributary of the channel runs towards East on the northern side of the plaintiff's land and then proceeds towards the defendants' land, the features as noticed by the Commissioner would only show that the channel water runs through the plaintiff's land and continues across the Arumugam's land to the defendants' land in Survey No. 228/5.
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Chandrababu is shown as Survey No. 228/4B. He has stated in his evidence that the channel branches out from the plaintiff's land and runs through the plaintiff's land and Arumugam's land and irrigates the defendants' land and that the said channel was obliterated by the plaintiff and in view of that the lands of Arumugam and the defendants were lying dry. Though it has been suggested that DW3, Chandrababu, is hostile to the plaintiff, no material has been placed to show the same. Hence, the evidence of PW3 assumes relevance about the fact that the channel has been running through the plaintiff's land and Arumugam's land and then reached the defendants' land.
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water was running on the plaintiff's land towards the defendants property. Though it is observed that the defendants have got easementary right, no relief has been granted to the defendants as the defendants did not file any counter-claim. But the fact that the channel was running on the plaintiff's land and that has been obliterated has been established through evidence.
would only show that there was a channel running across the plaintiff's land and it branched out towards East on the Northern side of the plaintiff's land and reached the defendants' land across the lands of Arumugam. Hence, the substantial question of law No.2 is also answered against the appellant.
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26.
19.12.2024
Index : Yes/No Speaking order : Yes/No NCC : Yes/No Maya
To
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R.N.MANJULA, J.
Maya
S.A. No. 818 of 2012
19.12.2024
3 issues framed by the court
Whether the lower appellate court was justified in modifying the decree when defendants did not seek easementary rights?
Whether the lower appellate court was right in recognizing an easementary right when defendants did not establish the channel?
Can a statutory easementary right be established without admission to title or proof of enjoyment for a statutory period?
1 provisions across 1 enactments
Anaikounder
Annadurai
Manoharan
Ramamoorthy
Selvam
R.N. Manjula
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
