Ramaiyan (Died),S/O.Pappu Vs Santhakumari

[Note: Second respondent died as a bachelor with no legal representative on his behalf. His mother, already on record as Appellant No.3 viz., Nallammal, was permitted to represent him as his legal representative vide Order of this Court

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dated April 3, 2017 made in M.P.No.1 of 2015 in SA.No.SR70314 of 2015].

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PRAYER : Second Appeal filed under Section 100 of Code of Civil Procedure, 1908, praying to set aside the Judgment and Decree dated December 11, 2014 passed in A.S.No.38 of 2011 on the file of the Subordinate Court, Mannargudi, confirming the Judgment and Decree dated January 28, 2011 passed in O.S.No.68 of 2006 on the file of the District Munsif Court, Mannargudi.

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For Appellants : Mr.L. Prabakar For Respondent-1 : Ms.A. Nilaphar for M/s.R.Meenal For Respondent-2 : Died

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J U D G M E N T

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This Second Appeal is directed against the Judgment and

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Decree dated December 11, 2014 passed in A.S.No.38 of 2011 by the 'Subordinate Court, Mannargudi' [‘First Appellate Court' for brevity] confirming the Judgment and Decree dated January 28, 2011 passed in O.S.No. 68 of 2006 by the 'District Munsif Court, Mannargudi' ['Trial Court' for brevity].

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2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

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Case of the Plaintiff:

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3. The plaintiff has filed the Suit seeking the relief of declaration that the plaintiff has got customary easementary right to draw water for her land through the Suit Property, consequential permanent injunction restraining the defendants from constructing any compound wall or any other masonry structure in the Suit Property or in any way interfering with the plaintiff’s enjoyment of the Suit Property as field bothie ( Kanni ) for irrigating her lands, and for costs.

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3.1. The plaintiff purchased the properties situated in Survey Nos.829/3, 830 and 836, which are included in the Ayacut of Mannargudi channel, by way of registered Sale Deed dated October 25, 1990 from one Venkatachalam. The lands owned by the defendants are also included in the Ayacut in Mannargudi channel.

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3.2. The Suit Property is situated in Survey No. 829/1A (Old S.No.829/1). It is a field bothie ( Kanni ) measuring 30 feet in length and 5 feet in width, totally an extent of 150 sq. ft., running through the patta lands of the defendants. It is described as ABCD in the rough sketch filed

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along with plaint. The Suit Kanni is an irrigation source for the plaintiff’s patta lands in T.S.Nos.829/3, 830 and 836 and defendants’ patta lands in

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T.S.Nos.829/2, 829/1B. The Suit Kanni branches off from a branch of the Main Canal and is in use for several decades. It is customary in the village for lands being irrigated through field bothies running in patta lands.

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3.3. Before selling the land to defendants 2 & 3, the first defendant attempted to obliterate the Suit Kanni . In this regard, the Tahsildar passed an Order ascertaining the plaintiff’s right over the Suit Property. The first defendant sold the southern portion of T.S.Nos.828 to third defendant and his land in Survey No.829/1 to second defendant. The first defendant passed away on February 5, 2008 and the defendants 4 to 9 are his legal heirs.

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3.4. On June 21, 2006, the defendants 2 and 3 attempted to obliterate the Suit Kanni by raising a compound wall over the Suit Property by taking advantage of the fact that their plot is situated on either side (North and South) of Suit Property. Their main motive is to force the plaintiff to sell her lands to them. Hence the Suit for declaration of customary easementary right, permanent injunction and other reliefs.

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Case of the Defendants:

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4. The sum and substance of the written statement filed by the defendants is that there is no such field bothie ( Kanni ) in the defendants’ lands i.e., T.S.No. 828 and 829/1, even as per the revenue records. Further, when the same was sold away to the defendants 2&3, the plaintiff cannot restrain them from constructing compound wall at their place. Further, the Order passed by the Mannargudi Tahsildar is not a legally maintainable one. He cannot pass any Order arbitrarily without enquiry, he has no authority to order to form a new channel. The Order is not binding on the defendants. There is no such field bothie / Suit Kanni available on the defendants’ land, be it before or after the Suit. Therefore, the Suit has to be dismissed.

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Trial Court:

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5. On the basis of the above pleadings, the Trial Court has framed the issues. During trial, on the side of the plaintiff, P.W.1 to P.W.4 were examined and Ex-A.1 to Ex-A.5 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined. Exs-C.1 & C.2, Report and Plan of the Advocate Commissioner, were marked as court documents.

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6. After completion of trial, the Trial Court came to the conclusion that the plaintiff is having easementary right over the Suit

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Kanni by relying upon Ex-A.1 – Sale Deed and Ex-A.2 – Thasildhar’s Order. Accordingly, it decreed the suit.

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First Appellate Court:

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7. Feeling aggrieved, the defendants preferred an appeal in A.S.No.38 of 2011 before the First Appellate Court. The First Appellate

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Court after hearing both sides, relying on Ex-A.1 and Ex-A.2, concurred with the Judgment and Decree of the Trial Court and accordingly, dismissed the appeal.

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Second Appeal

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8. Feeling aggrieved with the concurrent findings rendered by the Trial Court as well as the First Appellate Court, the defendants have preferred this Second Appeal, which was admitted on December 12, 2023 on the following substantial question of law:

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“ Whether the findings of the First Appellate Court based on Ex.A2, Tahsildar order is binding on the appellant when he was not a party to the order?”

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Arguments:

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9. Mr.L.Prabakar, learned Counsel for the appellants / defendants would argue that plaintiff’s Survey Nos. 829/3 and 830 are not included in the Ayacut of 'Cauvery Mettur Project' ('CMP') Mannargudi Main Channel. There has never been a field Bothie in old Survey Nos.829/1 / new Survey No.829/1A as alleged by the plaintiff. The plaintiff has not established its existence. The Tahsildhar has no power or authority to order to form/dig a Kanni in the defendants’ land under ExA.2. Ex-A.2 – Proceedings was passed without conducting due enquiry and without adhering to the principles of natural justice. Moreover, neither the Tahsildhar nor the Revenue Divisional Officer is arrayed as a party to the Suit, and the Tahsildhar who issued Ex-A.2 – Proceedings was also not examined. Advocate Commissioner inspected the Suit Property and filed Ex-C.1 - Report categorically stating that no Vaikal or Kanni exists in the Suit Survey number / defendants’ land. Both the Courts without properly appreciating the evidence available on record decreed the Suit. Their findings are perverse and show non-application of mind. Accordingly, he prayed to allow the Second Appeal, set aside the Judgment and Decree of

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First Appellate Court and the Trial Court, and dismiss the Original Suit.

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10. Per contra, Ms.A.Nilaphar for M/s.R.Meenal, learned

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Counsel for the first respondent / plaintiff would argue that Survey Nos.828, 829/1 and 829/2 are situate abutting the branch channel proceeding from CMP's left side bank through Survey No.827/1B and 2B. A field bothie / Kanni branches off from the said branch channel and runs on the northern end of Survey No.829/1 to reach the plaintiff’s lands. The said Kanni has been sub divided into Survey No.829/1A. North of the said Kanni is the defendants’ Survey No.828.

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10.1. She would further argue that taking advantage over the

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fact that their lands are situated on either side of the Suit Kanni, the 1^st defendant attempted to obstruct and obliterate the Suit Kanni and hence, the plaintiff filed a petition before the competent authorities and obtained Ex-A.2 – Proceedings after due enquiry and field inspection, in his favour. Hence, the defendants 2 and 3, who are claiming through 1^st defendant, are not entitled to raise any compound wall or in any manner obliterate / hinder the Suit Kanni depriving the easementary right of the plaintiff.

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10.2. She would further argue that the Advocate

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Commissioner has noted that there is no Kanni in the Suit Property as

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alleged by the plaintiff. At the same time, he has noted that there are signs of existence of a Vaikal proceeding from the Suit Property next to the compound wall. Oral evidence available on record would establish that there is 6 feet gap between the properties of defendants 2 and 3 i.e., Survey No.828 and 829/1B. The Advocate Commissioner failed to comprehend the existence of the Suit Kanni . The Trial Court as well as the First Appellate Court rightly appreciated the evidence and decreed the Suit. There is no need to interfere with the same. Accordingly, he would pray to dismiss the Second Appeal, and confirm the Judgment and Decree of First Appellate Court and the Trial Court.

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Discussion:

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11. This Court has heard on either side and perused the materials available on record in light of the Substantial Question of Law.

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12. Case of the plaintiff is that the defendants are attempting

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to obstruct the Suit Kanni with a view to deprive the plaintiff of her easementary right over the same. Case of the defendants is that no such Suit Kanni exists in field.

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13. The Suit Kanni is allegedly situated in Suit Survey No.829/1A (Survey No.891/1 before sub-division) in between Survey

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No.829/1B and Survey No.828. It is marked as ABCD in the plaint plan. Lands in Survey Nos.829/1B and 828 were initially owned by the first

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defendant who later sold the former to second defendant and the latter to third defendant. Plaintiff purchased lands in Survey Nos.829/3, 830 and an extent of 77 ¾ Cents in Survey No.836 vide Ex-A.1-Sale Deed.

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14. In Ex-A.1, the Suit Property has been described as originally punjai land which later became nanjai after CMP. Ex-A.5 – Adangal shows that the plaintiff is cultivating his lands in Survey Nos.829/3, 830 and 836. Ex-A.2 - Proceedings of the Tahsildhar states that while the plaintiff’s Survey No.829/3 and Survey No.830 are not Ayacut land of CMP, Survey No.836 alone is Ayacut land of CMP Manargudi Main Channel’s left side bank sluice and that revenue records also show the same. Further stated that, in CMP Manargudi Main Channel’s left side bank, from a point at Survey No.850/2, a branch channel runs in Survey Nos. 827/1B and 827/2B. The Tahsildar, Mannargudi vide his Proceedings (Ex-A.2) ordered to form / dig a Kanni branching off to form the said branch Channel running on the northern end of Survey No.829/1, passing through Survey Nos.829/3 and 830 to reach plaintiff’s Survey No.836. Thus, the Tahsildhar ordered in favour of the plaintiff to set up an

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irrigational channel to draw water from CMP Manargudi Main Channel’s

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left side bank Sluice and the Proceedings reads thus:

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– ' kd;dhh;Fo tl;lhl;rpah; mtu;fspd; eltof;iffs; Kd;dpiy jpU.v!;. fpU#;zd; e.f.15097/91/M1 ehs;: 27.07.92

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bghUs ; : ghrdk; - kd;dhh;Fo tl;lk; kw;Wk; efuk; - g[y vz;fs; 829/3/ 830 kw;Wk; 836f;F ghrd trjp nfhup jpUkjp. – rhe;jFkhup vd;gtu; kD Miz

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ghu;it : 1) jpUkjp rhe;jFkhup kd;dhu;Fo kD ehs; ,y;iy

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tUtha; nfhl;l mYtyu;/ kd;dhh;Fo

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– e.f.71473/91/M3 ehs;:25.10.91

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kw;Wk; bjhlu;g[ila nfhg;g[fs;

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Miz

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kd;dhh;Fo efuk; 137 eluh$g; gps;is bjUtpy; trpj;JtUk; (nyl;) nfhtpe;juh$; kidtp jpUkjp. rhe;jFkhup vd;gtu; jdf;F brhe;jkhdJk; jdJ je;ij jpU.bt';flh$y Kd;djpupau; vd;gtuhy; fle;j 25.08.90y; fpuak; bra;J bfhLf;fg;gl;l/ kd;dhu;Fo efuk; g[y vz;fs;: 829/3/ 830/ 836 Mfpa !;jy';fSf;F ghrdtrjp bra;J juf; nfhupajpd; ngupy;/ !;jy tprhuiz kw;Wk; !;jy ghu;ita[k; bra;ag;gl;lJ.

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kDjhuh; jpUkjp. rhe;jFkhup vd;gtu; ghrdtrjp bra;J juf; nfhupa g[y vz;fs; 829/3/ kw;Wk; 830Mfpa !;jy';fs; Ma[f;fl;L epy';fspy; nruhjit. g[y vz;.836 kl;Lk; Maf;fl;L ,dkhf nru;f;fg;gl;L/ kd;dhu;Fo bkapd; tha;f;fhy; ,lJ fiukjF ghrdg;bgWk;

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epykhf/ fpuhk fzf;F kw;Wk; bghJ

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gzpj;Jiwapduhy; guhkupf;fg;gl;L tUk; fzf;Ffspy; bjupa te;Js;sJ.

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kd;dhu;Fo bkapd; tha;f;fhy; g[y vz; 850/2 ypUe;J fpis ghrd tha;f;fhy; g[y vz;fs.;827/1gp kw;Wk; 827/2gp2 tHpahf bry;fpd;wJ. nkw;go tha;f;fhypy; g[y vz;.827/1gp apypUe;J ghg;g[ kfd; uhika;ad; vd;gtUf;F brhe;jkhdJk;/ mDgtj;jpYs;s g[y vz; 829/1 !;jyj;jpd; tlf;F gFjpapy; rpwpa ghrd fz;zp mikj;J mjd; \yk; kDjhuh; epy';fshd g[y vz;fs;: 829/3 kw;Wk; 830d; tHpahf kDjhuh; Maf;fl;L !;jykhd g[y vz;.836f;F ghrdtrjp mikj;Jf; bfhs;s ,jd; \yk; cj;jputplg;gLfpd;wJ.

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bgWeu;

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jpUkjp. rhe;jFkhup f/bg.nyl; nfhtpe;juh$; 137 eluh$g;gps;is bjU/ kd;dhu;Fo

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Sd/- v!;. fpU#;zd; tl;lhl;rpau; kd;dhu;Fo

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bgWeu;

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jpUkjp. rhe;jFkhup/ f/bg.(nyl); nfhtpe;juh$; 137 eluh$g;gps;is bjU/ kd;dhu;Fo.

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efy; :

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Ma;thsu; rl;lk;/ xG';F/ kd;dhu;Fo/ ,e;J fz;zp mikf;Fk;nghJ njitg;god; rl;lk;/ xG';F/ fhj;jpl njitahd ghJfhg;g[ ju md;g[ld; nfl;Lf; bfhs;sg;gLfpwJ.

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efy; :

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efu mstu;/ kd;dhu;Fo ,tu; kd;dhu;Fo efuk; g[y vz;fs;: 827/1gp kw;Wk; 827/2gp Mf;ukz';fs; mfw;wpl efusit bra;J ju ntz;oaJ. efy; : tUtha;f; nfhl;l mYtyu;/ kd;dhu;Fo jftYf;fhf gzpe;jDg;gg;gLfpwJ. efy; :

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fpuhk epu;thf mYtyh;/ kd;dhu;Fo ,tu; nkw;go !;jyj;jpd; ghrd fz;zp mike;jpl kDjhuUf;F njitahd Vw;ghLfs; bra;J ju ntz;oaJ. '

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15. Conjoint reading of Ex-A.1 – Sale Deed, Ex-A.2 – Proceedings of the Tahsildhar and Ex-A.5 - Adangal along with plaint rough plan and Ex-C.1 - Advocate Commissioner’s Report would show that the Suit Property has now been subdivided into Survey No.829/1A whose soil belongs to first defendant and that Survey No.836 having irrigational right to draw water from the CMP main Channel through the Suit Property. It has to be noted here that if really no Suit Kanni as alleged by the plaintiff exists, then there is no need to sub-divide a stretch of 150 sq. ft. land. The defendant has not given any convincing explanation for the same.

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16. Further, though Ex-A.2 – Proceedings does not make any

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express reference to the Act under which it was passed, it is discernible that it was passed under the ‘Tamil Nadu Irrigation Works (Construction of Field Bothies) Act, 1959 [Act No.25 of 1959]’ ['1959 Act' for short]. One may refer to the Judgment of this Court dated December 14, 1995 made in Thengappa Gounder -vs- The Revenue Divisional Officer , reported in (1996) 1 MLJ 485 , wherein a learned Single Judge has comprehensively dealt with the scope and ambit of the 1959 Act. To be noted, CMP is included in the Schedule under the 1959 Act. As per 1959 Act, Revenue Divisional Officer (RDO) has power to form/dig field bothies for the Ayacut lands. Close reading of Ex-A.2 would show that RDO, who is the competent authority, passed Order vide proceedings in Na.Ka.71473 / 91/A3 dated October 25, 1991 for digging / forming the field bothies in Survey No.829/1. Under Ex-A.2 – Proceedings dated July 27, 1992, the said Order is only being executed. If the defendant feels aggrieved by the Order of the competent authority, namely the RDO, passed under Section 3 of the 1959 Act, he ought to have filed an appeal under Section 4 thereof before the District Collector. The defendants have not preferred an appeal under Section 4 of the 1959 Act against the RDO’s Order even after the filing of this Suit. Similarly, they have not challenged the Order passed under Ex-A.2 also. In these circumstances, their

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contention that Ex-A.2 – Proceedings has been passed behind their back cannot be accepted.

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17. Further, on perusal of Ex-C.1, it is seen that Survey No.829 is on the eastern side of the branch channel. Though Suit Survey No.829/1A is a Patta land, the plaintiff has an easementary right to draw water to her lands through it. The oral evidence available on record established that there is a 6 feet gap between the defendants’ Survey Nos.828 and 829/1B and that there are traces of a Vaikal . AdvocateCommissioner has erroneously noted that there is no Suit Kanni as alleged by the plaintiff.

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18. Further, the defendants have not produced their Sale Deeds or any other documents to prove that there was no Suit Kanni in existence in the field. Further case of the defendants is that the plaintiff enjoys irrigation from a Vaikal situate abutting her Survey No.836 and hence, she is not entitled to any right over Suit Kanni . The said contention does not hold water for the reason that mere presence of another irrigation channel does not extinguish the plaintiff’s easementary right over the Suit Kanni . Further, the defendants, who bear the burden to prove their assertion, have not adduced any evidence to show that the plaintiff has any

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right over the said irrigation channel abutting Survey No.836. Moreover, the defendants did not mention about the same to the Advocate Commissioner and the physical features of the said irrigation channel are not known and hence, the practical possibility of drawing water from the same is not proved by the defendants.

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19. In these circumstances, this Court is of the view that the plaintiff has established the existence of Suit Kanni and her easementary right over the same. Therefore, the defendants cannot obstruct or obliterate the same in any manner. The defendants can of course construct a wall or enjoy their property in a manner not affecting the easementary right to draw water through the Suit Property to irrigate plaintiff's land in Survey No.836.

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20. Substantial Question of Law is answered accordingly in favour of plaintiff and against the defendants.

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Conclusion:

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21. Resultantly, the Second Appeal stands dismissed. The Judgment and Decree of the Trial Court as well as the First Appellate Court are hereby confirmed. Keeping in mind the facts and circumstances

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of the case, there shall be no order as to costs.

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02 / 01 / 2025

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Index : Yes Neutral Citation : Yes Speaking Order MSM/TK