Madras High Court
P.K. Jayaraman ...Defendant/ vs P.K.Venugopal ...Plaintiff/ on 5 July, 2021
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.339 of 2009
and
M.P.Nos.1 and 2 of 2009
P.K. Jayaraman ...Defendant/Appellant/Appellant
Vs.
P.K.Venugopal ...Plaintiff/Respondent/Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree in A.S.No.41 of 2007
dated 30.06.2008 passed by the learned Subordinate Judge,
Gudiyattam, Vellore District, confirming the Judgment and Decree in
O.S.No.927 of 1995 dated 22.02.2007 passed by the learned District
Munsif, Gudiyattam, Vellore District.
For Appellant : Mr.P. Murugan
For Respondent : Mr.D.Rajagopal
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https://www.mhc.tn.gov.in/judis/
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
JUDGMENT
The defendant is the appellant before this Court. The Second
Appeal arises against the concurrent Judgment and Decree in the suit
O.S.No.927 of 1991 filed by the respondent herein on the file of the
learned District Munsif, Gudiyattam, for a declaration that the Service
Connection No.209 is situated in Survey No.203/3 and for a permanent
injunction restraining the defendant from preventing the plaintiff from
using his share of the Service Connection and for a mandatory
injunction directing the defendant to restore pipeline damaged by them.
The suit was decreed and confirmed by the learned Sub Judge,
Gudiyattam in A.S.No.41 of 2007.
2.The brief facts of the Plaint are as follows:
The plaintiff and the defendant are siblings. They had partitioned
their family properties along with the parents under a Partition Deed
dated 19.07.1980 and have been enjoying their respective shares of the
https://www.mhc.tn.gov.in/judis/
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
properties. The suit Service Connection number which was originally
Service Connection No.9 was in Kottamitta Division was shifted to
Dhanakondapalli Division and allotted Service Connection No. 209.
Both the appellant and the respondents had an equal share in the
Service Connection which was situated in the well in Survey No.203/3.
It is the case of the respondent that he was taking water through an
underground pipeline to his properties measuring an extent of 1 1/2
acres.
3.The appellant had originally disputed the plaintiff's right to the
other properties for which the plaintiff had filed a suit O.S.No.983 of
1994 for a declaration of his title. It was only pending that suit that the
respondent has come to know that the suit Service Connection which
was situate in Survey No.203/3 was wrongly mentioned as Survey
No.202/2. The defendant's Service Connection bearing Service
Connection No.110 was the connection which is situate in Survey
No.202/2 and even this had been wrongly mentioned as Survey
https://www.mhc.tn.gov.in/judis/
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
No.202/1. This suit property is not the subject matter of O.S.No.933 of
1994. The respondent had tried to explain the mistake to the appellant
who refused to permit the respondent to use the suit well and Service
Connection and added to that damaged the pipeline. Hence, the suit.
4.The appellant/defendant had filed a Written Statement inter
alia denying the case of the respondent/plaintiff. It is his case that the
plaintiff had no right to the suit property and the earlier suit instituted
by the respondent had been dismissed which fact has been suppressed.
The defendant would further contend that the allegation of the
respondent/plaintiff that the Survey Numbers were wrongly given is a
invented to the support the false claim of the respondent.
5.The defendant would submit that to the North of the suit well,
there was an Odai in the existence and the lands of the respondent is
situate to the North of this Odai. The respondent was irrigating his
lands from the well situate in Survey No.196 and not the suit Service
https://www.mhc.tn.gov.in/judis/
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
Connection. That apart, the respondent has dug a bore well to irrigate
his lands. Therefore, they prayed for dismissal of the suit.
6.An Additional Written Statement came to be filed by the
defendant in which he would submit that the Survey No.203/3
exclusively belongs to him and the same was allotted to him in the
Partition as the “C” schedule property. The defendant admitted that the
Service Connection No.209 was originally bearing Service Connection
No.9. He would contend that the respondent was allotted only Survey
No.202/2 and the well situate therein as well as the Service Connection
in the said well. His Service Connection has been wrongly mentioned
as Service Connection No.9 and taking advantage of the anomaly, the
plaintiff has filed the present suit.
7.The learned District Munsif, had framed the following issues,
namely,
“(a)Whether the plaintiff is entitled to the
declaratory relief as prayed for?
https://www.mhc.tn.gov.in/judis/
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
(b)Whether the plaintiff is entitled for permanent
injunction as prayed for?
(c)Whether the plaintiff is entitled for mandatory
injunction as prayed for?
(d)Whether the cause of action pleaded is true?
and
(e)To what other relief?”
8.The respondent had examined himself as P.W.1 and one
Subbammal as P.W.2 and marked Ex.A.1 to Ex.A.4. The
appellant/defendant on his side had not only examined himself but had
examined 4 witnesses and marked Ex.B.1 to Ex.B.23. The learned
District Munsif, relying upon the documents filed on the side of the
respondent and taking into consideration the oral evidence adduced on
both sides had decreed the suit in respect of declaration and permanent
inunction and dismissed the suit in respect to mandatory injunction.
The respondent had not challenged the portion of the Decree that
https://www.mhc.tn.gov.in/judis/
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
against him, however, the appellant/defendant has filed A.S.No.41 of
2007 on the file of the learned Sub Judge, Gudiyattam. The learned
Appellate Court relying on the recitals in Ex.A.1 came to the
conclusion that the Electricity Service Connection bearing No.9 (now
Service Connection No.209) was stated to be installed in Survey
No.202/2 of Modikuppam Village. However, Survey No.9 is in Survey
No.203/3 as per the cross examination of D.W.1. The learned Judge
therefore concluded that the Service Connection Number had been
wrongly mentioned in Ex.A.1 – Partition Deed i.e., instead of Survey
No.203/3, the same has been described as Survey No.202/2, however,
even according to D.W.1, Service Connection No.9 (New Service
Connection No.209) is situate only in Survey No.203/3. Therefore, the
right which has been conferred upon the respondent has his right to
Service Connection No.209 situate at Survey No.203/3. The Appellate
Court dismissed the Appeal and confirmed the Judgment and Decree of
the trial Court.
https://www.mhc.tn.gov.in/judis/
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
9.The Second Appeal has been admitted on the following
Substantial Questions of Law:
1.Whether the Courts below had rightly rejected the
oral and documentary evidence produced by the appellant
herein?
2.Whether the Courts below had right in rejecting the
Revenue Records in respect of the suit property stands in
the name of the appellant?"
10.Mr.P. Murugan, learned counsel for the appellant would
submit that the respondent/plaintiff has clearly admitted that it is the
appellant who is in possession and enjoyment of Survey No.203/3 and
P.W.1 has admitted that the appellant is in possession and enjoyment of
the property allotted to him as per Ex.A.1 – Partition Deed. Once the
respondent has admitted the appellant's possession of the said Survey
No.203/3, the Courts below have totally erred in decreeing the suit. He
would therefore seek to have the same be dismissed.
https://www.mhc.tn.gov.in/judis/
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
11.Heard the learned counsels appearing on either side and
perused the records.
12.The case of the plaintiff is that he has been allotted a right to
Survey No.9 (now Service Connection No.209) under the Partition
Deed and the Partition Deed has expressly provided this right to the
plaintiff to draw water through the well in which the Service
Connection has been installed. It is an admitted fact that the Service
Connection No.209 is situate in the well in Survey No.203/3. The
defendant has also admitted the same. Therefore, the reference to
Survey No.202/2 in Ex.A.1-Partition Deed is purely a mistake.
13.Considering the fact that the respondent/plaintiff had been
using the said Service Connection since the partition it can be safely
presumed that the defendant was also fully aware that the plaintiff had
been allotted the right to Service Connection No.9 (now Service
https://www.mhc.tn.gov.in/judis/
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
Connection No.209) situate in the well in Survey No.203/3. D.W.1 in
his cross examination has stated as follows:
“kpd; ,izg;g[ vz;/9 (209) S.No./203/3-y; jhd; cs;sJ/”
14.Having accepted the right of the plaintiff to Service
Connection No.209 and the said right having been exercised by the
plaintiff since the date of partition in the year 1980, the
appellant/defendant cannot now take advantage of the mistake in the
description of the Survey Number of the property. The Courts below
have rightly appreciated the evidence on record. The plaintiff has
claimed only a declaration that he is entitled to the use of the Service
Connection No.209 and that the same is situated in Survey No.203/3
and for an injunction that the appellant/defendant should not obstruct
the respondent from drawing his share of the water. The appellants
have misinterpreted the claim of the plaintiff as a claim over the land
situate in Survey No.203/3. It is also not the case of the appellant in
his grounds that the Courts below have not appreciated the evidence
https://www.mhc.tn.gov.in/judis/
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
filed on his side. Therefore, the Substantial Questions of Law are
answered against the appellant.
The Second Appeal stands dismissed, however, there shall be no
order as to costs. Consequently, connected Miscellaneous Petitions are
closed.
05.07.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Subordinate Judge,
Gudiyattam,
Vellore District.
2.The District Munsif,
Gudiyattam,
Vellore District.
https://www.mhc.tn.gov.in/judis/
S.A.No.339 of 2009 &
M.P.Nos.1 and 2 of 2009
P.T. ASHA, J,
mps
S.A.No.339 of 2009
and
M.P.Nos.1 and 2 of 2009
05.07.2021
https://www.mhc.tn.gov.in/judis/
