Madras High Court
K.Palanisamy @ Palaniyappan ... vs Tamilnadu Electricity Board on 27 January, 2021
S.A.No.1285 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
[JUDGMENT RESERVED ON : 05.03.2021]
[JUDGMENT PRONOUNCED ON : 25.06.2021]
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.1285 of 2007
and
M.P.No.1 of 2007
1. K.Palanisamy @ Palaniyappan (Died)
2. P.Kowsalya
3. P.Prabakaran
4. P.Gnanaselvi
[Appellants 2 to 4 brought on record as L.Rs. of
the deceased first appellant viz., K.Palanisamy
vide order of Court dated 27.01.2021 made in
C.M.P.Nos.14847 & 14846 of 2019 in
S.A.No.1285 of 2007]
... Appellants/Plaintiffs
.. Vs ..
1. Tamilnadu Electricity Board,
Represented by its
Superintending Engineer,
Periyar Electricity Distribution Circle, Erode - 9.
2. The Junior Engineer,
Tamilnadu Electricity Board,
Operation and Maintenance,
Mullamparappu, Erode Taluk.
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3. Karuppanagounder ... Respondents/Defendants
Prayer:- Appeal is filed under Section 100 of the Civil Procedure Code
against the judgment and decree dated 12.02.2007, passed by the learned
I Additional Sub Judge, Erode, in A.S.No.70 of 2006, confirming the
judgment and decree dated 14.12.2005 passed by the learned Principal
District Munsif, Erode, in O.S.No.1351 of 2004.
For Appellants : Mr.V.S.Kesavan
For RR-1 & 2 : No Appearance
For R-3 : Died
-----
JUDGMENT
The legal representatives of the original plaintiff are the appellants
herein.
2. For the sake of convenience, the parties are referred to as per
their ranking before the trial Court.
3. The original plaintiff namely, K.Palanisamy @ Palaniyappan,
has filed a suit in O.S.No.1351 of 2004 before the Principal District
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Munsif Court, Erode, for the relief of permanent injunction against the
defendants 1 and 2 and their men and officials from disconnecting or
shifting the suit service connection and permanent injunction restraining
the third defendant from dismantling the suit electric motor pump set,
electric service connection and other things in the schedule of the
property.
4. After trial, the said suit in O.S.No.1351 of 2004 was dismissed
by the learned Principal District Munsif, Erode, on 14.12.2005. As
against the order of dismissal, the plaintiff has preferred an appeal in
A.S.No.70 of 2006 before the learned I Additional Sub Judge, Erode.
The learned I Additional Sub Judge, Erode, by judgment dated
12.02.2007, dismissed the said appeal in A.S.No.70 of 2006 by
confirming the judgment and decree passed by the trial Court. As against
which, the plaintiff has preferred the above second appeal before this
Court. Pending the second appeal, the original plaintiff namely,
K.Palanisamy @ Palaniyappan died and his legal heirs were brought on
record as appellants 2 to 4 in this second appeal.
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5. The third defendant is the father of the original plaintiff. The
defendants 1 and 2 are the officials of the Tamil Nadu Electricity Board.
6. The sum and substance of the plaint averments are as follows:-
[i] The plaintiff, third defendant, the plaintiff's younger brother
Paramasivam and one Thangamuthu gounder partitioned their family
properties under a registered Partition Deed dated 15.07.1977, where
under the plaintiff was allotted schedule 'B' in the said Partition Deed.
The registration copy of the said Partition Deed was marked as Ex.A.1.
An extent of 1.50 acres in old S.F.No.277/1 [R.S.No.24/2] was allotted to
the plaintiff with a well therein, along with other properties. The said
land originally an Inam land in the name of Lord Varadharaja Perumal.
But the land was in possession and enjoyment of the plaintiff and his
predecessor's in title time immemorial. Except the plaintiff, no one has
got any right, title or possession over the said property. The RSR extract
for the suit property is produced herewith. The plaintiff has produced the
kist receipt for the suit land in Patta No.1020.
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[ii] Prior to the aforesaid partition, the third defendant had applied
with defendants 1 and 2 for agricultural electric service connection for
the well in S.F.No.277/1. On the priority basis, for the service
connection in 71/2, H.P., electric motor was sanctioned and the service
connection was effected in S.C.No.237 after the said partition on
26.10.1977. Though the service connection was sanctioned in the name
of the father of the third defendant (The application was made by the
father before partition), the plaintiff only met out all the expenses for
obtaining it and for installation of motor etc., Hence, for the aforesaid
reasons, the third defendant has no right in the said service connection,
since he has not contributed any amount either for obtaining the service
connection or for installation of 71/2 H.P., electric motor. The service
connection No.237 of Mullamparappu distribution is the subject matter
of the suit and it is hereinafter referred to as the suit service connection.
[iii] The plaintiff averred in the plaint that ever since then, he was
using the suit service connection and electricity motor pump set for
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irrigating his land in R.S.No.24/2. The suit service connection is for
agricultural purpose exempted from payment of consumption charges.
7. The contesting defendant viz., third respondent herein, father of
the plaintiff has disputed that the subject matter of the well was allotted
to the plaintiff in the alleged Partition Deed dated 15.07.1977. However,
the existence of the well prior to the Partition Deed is an admitted fact
and the third defendant had applied for service connection much prior to
the Partition Deed is also admitted by the plaintiff and it was disputed by
the third defendant that the suit well was not allotted to the plaintiff and
since the plaintiff doing foul play and doing criminal activity committing
theft of electricity energy, the third defendant being a registered
consumer had issued a legal notice to the first and second defendants to
disconnect the free electricity supply given in the suit well service
connection.
8. The official defendant No.2 has filed written statement wherein
he has stated that based upon the V.A.O. certificate, temporary change of
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name was effected from the third defendant's father to the plaintiff's son
and thereafter, the third defendant/father of the plaintiff has given a letter
dated 15.05.2004 to disconnect the suit service connection alleging that
his son, the plaintiff is misusing the free electricity suit service
connection. Pending trial, an Advocate Commissioner was appointed.
9. Before the trial Court, on behalf of the plaintiff, the plaintiff
examined himself as P.W.1 and two witnesses were examined as P.Ws.2
and 3 and documents Exs.A.1 to A.8 were marked. On behalf of the
defendants, the second defendant examined himself as D.W.1 and third
defendant examined himself as D.W.2 and documents Exs.B.1 to B.9
were marked. Advocate Commissioner's report was marked as Ex.C.1
and Advocate Commissioner's sketch was marked as Ex.C.2.
10. After trial, the suit was dismissed and as the appeal was also
dismissed, the plaintiff has filed the above second appeal before this
Court. In this second appeal, notice was ordered on 04.12.2007. After
hearing the parties, the following substantial questions of law are framed:
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(1). Whether the courts below were correct in
discussing the title of the service connection possessed
by the plaintiff when it is not the subject matter of the
suit?
(2). Whether the plaintiff proved the possession of
service connection and entitled for permanent injunction?
11. After hearing both the parties and on perusal of the oral and
documentary evidence produced on either side, it is clear that the suit
well was situated in Survey No.277/1. It is the specific case of the third
defendant that under the Partition Deed-Ex.A.1, dated 15.07.1977, 1 acre
50 cent was given to the plaintiff. However, neither the well nor the
pump set was allotted to him and it is the admitted case of both the
parties that the suit service connection was effected on 26.10.1977.
Admittedly, after the Partition, it was given in the name of the third
defendant. An admission has been elucidated in the cross-examination of
P.W.1 [plaintiff] that the service connection was given only in the name
of his father viz., the third defendant and based upon the service
connection, the plaintiff has unauthorizedly put two bore wells and also
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using the water by committing theft of energy and also stated that
without obtaining prior permission from the Electricity Board, he was
using the electricity for non agricultural purpose. Though the plaintiff
claims that he was in possession for more than 30 years, the service
connection is admittedly stands in the name of the third defendant and it
has been shifted to the plaintiff's name on a temporary basis for 90 days
only assumes significance. Despite notice given by the third defendant
on 15.05.2004, the defendants 1 and 2 official defendants have not taken
any steps to disconnect the service connection as could be seen from the
cross-examination of P.W.1.
12. Furthermore, without obtaining change over switch and
permission therefor, the plaintiff is misusing the service connection given
in the name of the third defendant. As per the report of the Advocate
Commissioner, who was examined as P.W.3, mutation of name change is
only temporary for 180 days. Even after expiry of the said date, the
plaintiff neither obtained necessary permission nor obtained permanent
service connection assumes significance. From the cross-examination of
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the third defendant (D.W.2), it is seen that based upon the Advocate
Commissioner's report, without obtaining necessary change over switch
permission from TNEB, the plaintiff was using it for deep bore well
which is not intention of the electricity board, since it is an agricultural
service connection and hence, the Lower Appellate Court, taking note of
the evidence of D.W.1, has categorically given a finding that the
defendants 1 and 2 though having the knowledge of violation of Rules,
other than the assigned purpose, the plaintiff, without getting the
permission for change over switch, he was misusing the service
connection for deep bore well and such a finding is well merited and well
considered.
13. From Ex.B.4, this Court finds that the name transfer was
effected from the name of the third defendant to the plaintiff's name on
temporary basis only for 180 days only. When such being so, the
plaintiff cannot seek permanent injunction against the original consumer
in whose favour the service connection was given effect to and hence, I
find that seeking injunction restraining the electricity board from
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disconnecting the service connection which is admittedly given in the
name of the third defendant and the plaintiff was using it only for 180
days, on a temporary arrangement and after expiry of the said period, he
cannot seek the indulgence of this Court for permanent injunction against
the original consumer in whose favour the service connection was
effected. An apprehension of the third defendant that the plaintiff is
using the service connection for illegal purposes, the third defendant,
being the original consumer, he has to face legal consequences thereto
meted by the plaintiff also assumes significance. No doubt, in Ex.A.1-
Partition Deed, the suit well was not allotted to the plaintiff and the
service connection being standing in the name of the third defendant, the
plaintiff is not entitled for any injunction as sought for. Both the Courts
below have concurrently and rightly held that the plaintiff is not entitled
for relief of permanent injunction. Both substantial questions of law do
not arise for consideration. The judgment and decree passed by both the
Courts below do not suffer from any irregularity or illegality warranting
interference at this appellate stage. Accordingly, the Second Appeal is
devoid of merits and the same is liable to be dismissed.
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14. In the result,
[i] The Second Appeal is dismissed and the
judgment and decree dated 12.02.2007, passed by the
learned I Additional Sub Judge, Erode, in A.S.No.70 of
2006, confirming the judgment and decree dated
14.12.2005 passed by the learned Principal District
Munsif, Erode, in O.S.No.1351 of 2004, is confirmed.
[ii] However, there shall be no order as to costs.
[iii] The connected miscellaneous petition is
closed.
25.06.2021
Index : Yes/No
Internet : Yes/No
Jrl
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To
1. The I Additional Sub Judge,
Erode.
2. The Principal District Munsif,
Erode.
3. The Superintending Engineer,
Tamilnadu Electricity Board,
Periyar Electricity Distribution Circle,
Erode - 9.
4. The Junior Engineer,
Tamilnadu Electricity Board,
Operation and Maintenance,
Mullamparappu,
Erode Taluk.
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RMT.TEEKAA RAMAN, J.
JRL
Judgment in
S.A.No.1285 of 2007
25.06.2021
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