Madras High Court
K.Periyakkal vs K.Kaliannan on 4 February, 2021
S.A.No.701 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.02.2021
CORAM :
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.No.701 of 2017
1.K.Periyakkal
2.G.K.Muthusamy
3.Mani @ Kaliammal
4.K.Perumal
5.Chinnamani
6.Mani ... Appellants
Versus
K.Kaliannan ... Respondent
Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the Judgment and Decree dated 28.07.2010 made in
A.S.No.62 of 2007 passed by the Subordinate Judge, Namakkal, Namakkal
District reversing the Judgment and Decree dated 24.11.2006 made in
O.S.No.1556 of 2004 passed by the Additional District Munsif, Namakkal,
Namakkal District.
For Appellants : Mr.V.Saravanan
for M/s. S.Senthil Nathan
For Respondent : Mr.M.Subramaniyan
****
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S.A.No.701 of 2017
JUDGMENT
This Second Appeal is filed to set aside the Judgment and Decree
dated 28.07.2010 made in A.S.No.62 of 2007 passed by the Subordinate Judge,
Namakkal, Namakkal District reversing the Judgment and Decree dated
24.11.2006 made in O.S.No.1556 of 2004 passed by the Additional District
Munsif, Namakkal, Namakkal District.
2.The learned counsel appearing for the appellants submitted that
appellants have been using the water channel as path way. The plaintiff has
filed the suit to restrain the defendants from using the water channel as path
way. The trial court after considering both oral and documentary evidences,
passed the judgment and decree stating that the plaintiff has not proved the
case. Against which the plaintiff preferred an appeal in A.S.No.62 of 2017
before the Subordinate Judge, Namakkal. The first appellate court held that it
is only a water channel, the defendants and the plaintiff can not claim any
exclusive right over the said water channel.
3.The learned counsel appearing for the appellants submitted that
they have been using the water channel, for many years, as path way. However,
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S.A.No.701 of 2017
the court below has wrongly dismissed the suit and stated that the water
channel is only to transport the water and not for using as a path way. As long
as in the water way the parties have not been claiming any right over the
property and using the water way as path way running between S.No.147/3 and
150/3, there is no justification on the part of the courts below to prevent the
parties from using the water way as pathway. Hence the present appeal.
4.The learned counsel for the appellants have suggested the following
substantial question of law and to admit this Second Appeal:
“1.Whether the plaintiffs are entitled to the
discretionary relief of injunction when the plaintiff did not
come to the court with clean hands by suppressing the
material fact of the existence of the Government canal in the
suit property?
2.Whether the plaintiffs are entitled to the
discretionary relief of injunction when the plaintiff did not
come to the court with clean hands by suppressing earlier
suit between the plaintiff and 3rd defendant in O.S.No.107 of
2003 with regard to the existence of the Government canal in
the suit property?
3.Whether the findings of the 1st appellate curt are
perverse in appreciating Ex.B1 and pleadings in the written
statement?”
5.Heard the learned counsel for the appellants and perused the
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S.A.No.701 of 2017
Judgment of the trial court as well as the first appellate court. The trial Court
dismissed the suit as the plaintiff has not proved his case. The trial Court held
that there was no averment with regard to that the water way is belong to either
of the parties to the suit and the S.No. related to the water channel is in the
Government land. Hence, the trial Court dismissed the suit. Therefore, the
plaintiff filed an appeal before first appellate Court. The courts below, after
analyzing both oral and documentary evidences, held that the water channel can
be used only to transport the water and it can not be used to carry the cattle and
for any other public usage, as pathway.
6.At this juncture, it would be appropriate to extract the relevant
portion of the paragraph No.11 of the Judgment of the trial Court as follows:
“jw;nghJ gp epyj;jpy; bry;yf;Toa
fpis tha;f;fhy; muRf;Fg; ghj;jpag;gl;ljh>
my;yJ thjpf;Fg; ghj;jpag;gl;ljh> vd;gJ
kl;Lnk ,k;nky; KiwaPl;oy; jPh;khdpf;fg;gl
ntz;Lk;/ thjp jug;g[ rhl;rpapd;go gp epyj;jpd;
tHpahf fpis tha;f;fhy; bry;fpwJ vd;gJ
xg;g[f;bfhs;sg;gl;Ls;sJ/ Mdhy; me;j tha;f;fhy;
mikag;bgw;Ws;s epyg; gFjpahdJ muRf;Fr;
brhe;jjkhdjhf ,Ue;jnghjpYk; mJ
mike;Js;s epyg;gFjp thjpf;Fg; ghj;jpag;gl;lJ
vd;gjhy; mjpy; gpujpthjpfnsh mth;fsJ
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S.A.No.701 of 2017
Ml;fnsh brd;W tu ve;jtpj chpika[k; ,y;iy
vd;W fl;rp vLf;fg;gl;Ls;sJ/ Mdhy;
gpujpthjpfs; jug;gpy; muRf;Fr; brhe;jkhd
tha;f;fhy; bry;tjhy; mjpy; jh';fs; brd;W
tUtjwf;fhd chpik ,Ug;gjhf fl;rp
vLj;Js;sdh;/ jhth gp epyj;jpy; bry;yf;Toa
tha;f;fhypy; thjpf;nfh. gpujpthjpf;nfh ve;jtpj
ghrd chpika[k; ,Ue;jjhf gpujpthjpfs; jug;gpy;
Twg;gltpy;iy/ vdpDk; thjp jug;g[y; gp
epyj;jpd; tHpahf bry;yf;Toa fpis tha;f;fhy;
thjp. Gpujpthjpfspd; epy';fis tpl gs;sj;jy;
mikag; bgw;wpUg;gjhy; mjpypUe;J jdf;Fg;
ghrd chpik vJt[k; ,y;iy vd;W
bjhptpj;Js;shh;/ ,e;j epiyapy; gp epyj;jpd;
tHpahf fpis tha;f;fhy; bry;fpwJ vd;gjw;fhf
kl;Lnk gpujpthjpfSf;F khw;Wg; ghijahf ,rl;
xa; vf;!; kw;Wk; nfhtpe;jk;ghisak; gd;rhaj;J
nuhL mikag; bgw;wpUf;Fk;nghJ gp epyj;jpd;
tHpahfr; bry;tjw;F ve;jtpj chpika[k; ,y;iy
vd;W ,e;ePjpkdw;k; fUJfpwJ/ Vbddpy; gp
epyj;jpy; bry;yf;Toa tha;f;fhy; muRf;Fg;
ghj;jpag;gl;ljhf cs;sJ/ gpujpthjpfSf;Fk; gp
epyj;jpd; tHpahfr; bry;yhky; khw;Wg; ghij
mikag; bgw;Ws;sJ/ mjd; K:yk; j';fsJ
epyj;jpw;Fk;. Tpl;ow;Fk; brd;W tu ,aYk;/ thjp
jhth tha;f;fhy; jdf;F vt;thW ghj;jpag;gl;lJ
vd;gij rhl;rpafs; kw;Wk; rhd;whtz';fs; K:yk;
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S.A.No.701 of 2017
bka;g;gpf;ftpy;iy vd;W gpujpthjpfspd; fw;wwpe;j
tHf;fwpdh; jdJ thJiuapd; nghJ
Rl;of;fhl;oa[s;shh;/ Mdhy; thjp jdJ epyj;jpd;
tHpahf bry;yf;Toa tha;f;fhypy; jdf;F
ve;jtpj chpika[k; ,Ug;gjhff; nfhutpy;iy
mjw;F khwhf tha;f;fhiy xl;o tha;f;fhy;
fiuapd; tHpahf gpujpthjpfs; brd;W tuf;TlhJ
vd;W jhd; nfl;Lf; bfhz;Ls;shh; nkYk;
thjpna jhth tha;f;fhyhdJ muRf;Fg;
ghj;jpag;gl;lJ vd;gij xg;g[f; bfhz;Ls;shh;/
gpujpthfjpfSf;F jhth gp epyj;jpd; tHpahf
ve;jtpj eil ghij chpika[k; ,Ug;gjhf
rhl;rpfnsh. Rhd;whtz';fnsh Kd;dplg;gltpy;iy/
mjd; tHpahf bry;yf;Toa fpis tha;f;fhypYk;
gpujpthjpfSf;F ghrd chpik vJt[k;
,Ue;jjhff; Twg;gltpy;iy mt;thW
,Uf;Fk;nghJ nkw;go tha;f;fhy; thjpf;Fg;
ghj;jpag;gl;l epyj;jpy; bry;fpwJ vd;gjd;
fhuzkhf kl;Lnk gp epyj;jpd; tHpahf o
epyj;jpw;Fk;. O epyj;jpy; ,Ue;J o bcwr;
tPl;Lf;Fk; brd;W tUtjw;fhd chpikapUg;gjhff;
Twg;gLtJ Vw;Wf; bfhs;sf;Toajy;y/ vf;!; xa;
,rl; ghijiaj; bjhlh;e;J nfhtpe;jk;ghisak;
gd;rhaj;J nuhl;od; tHpahf o epyj;jpw;Fk; o
bcwr; tPl;Lf;Fk; brd;W tUtJ Rw;Wg; ghijah
,Uf;Fk; vd;gjhy; kl;Lnk thjpf;F jdpg;gl;l
Kiwapy; ghj;jpag;gl;l gp epyj;jpd; tHpahf
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S.A.No.701 of 2017
ghij ghj;jpak; ,Ug;gjhf TWtij ePjpkd;wk;
Vw;Wf; bfhs;s ,[email protected]
7.A perusal of the above judgment of the Trial Court would show that
the appellants/defendants have not made claim for water from the water
channel. The trial court held that the level of the water in the channel would
always be below the level of defendants land. Therefore, the defendants cannot
transport water from the water course to their land. Accordingly, the suit was
dismissed. Against the said dismissal, the plaintiff/respondent filed the appeal
before the First Appellate Court in A.S.No.62 of 2007. It was admitted by both
the parties that the water way is not belong to any of the parties to the suit and
it is a Government land. After taking note of this aspect the First Appellate
Court held that the water course is meant to transport the water and not for
using the same as pathway for movement of cattle and vehicle etc. as claimed
by them.
8.Therefore, this Court is of the opinion that Judgment of the courts
below is reasoned one and nothing for this court to interfere with.
9.In fine, this court is unable to trace any substantial question of law
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S.A.No.701 of 2017
that arises for consideration as suggested by the appellant in the appeal. Thus,
this Court finds no merit in the appeal. Hence, the second appeal deserves to be
dismissed.
10.In the result, the Second Appeal is dismissed. No cost.
04.02.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
ah
To
1.The Subordinate Judge,
Namakkal,
Namakkal District.
2.The Additional District Munsif,
Namakkal,
Namakkal District.
KRISHNAN RAMASAMY, J.,
ah
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S.A.No.701 of 2017
S.A.No.701 of 2017
04.02.2021
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