Madras High Court

A.Velliangiri vs A.Senthilvel on 17 November, 2021

                                                                              Second Appeal No.857 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   Dated : 17.11.2021


                                                         CORAM


                                   THE HON’BLE MRS.JUSTICE S.KANNAMMAL


                                            Second Appeal No.857 of 2019
                                                             and
                                                C.M.P.No.17600 of 2019


                     A.Velliangiri                                  ... Appellant / 1st Plaintiff
                                                             Vs.
                     1.A.Senthilvel


                     2.The Superintendent Engineer
                         Tamilnadu Electricity Board
                         Power House, Erode.


                     3.The Assistant Electric Engineer
                        Tamilnadu Electricity Board
                        Thindal, Erode Taluk and District.     … Respondents / Defendants


                     PRAYER: This Second Appeal is filed under Section 100 of the Code of
                     Civil Procedure, to set aside the Judgment and Decree dated 27.03.2019
                     made in A.S.No.1 of 2018 on the file of the Sub Court, Perunthurai partly
                     reversing the Judgment and Decree dated 28.02.2017 made in O.S.No.218 of

                     1/16

https://www.mhc.tn.gov.in/judis
                                                                                Second Appeal No.857 of 2019

                     2011 on the file of the District Munsif Cum Judicial Magistrate Court,
                     Perunthurai.


                                        For Appellant     :     Mr.S.Sounthar
                                        For R1            :     Mr.S.Kaithamalai Kumaran
                                        For R2 & R3       :     Mr.V.Viswanathan


                                                          JUDGMENT

This Second Appeal has been filed by the plaintiff, against the

Judgment and Decree dated 27.03.2019 made in A.S.No.1 of 2018 on the file

of the Sub Court, Perunthurai partly reversing the Judgment and Decree dated

28.02.2017 made in O.S.No.218 of 2011 on the file of the District Munsif

Cum Judicial Magistrate Court, Perunthurai.

2.The brief facts leading to the filing of this Second Appeal are as

follows:

a. The appellant herein is the plaintiff and the respondents are the

defendants in the suit. For the sake of convenience the parties in this Second

Appeal will be referred to as per their array before the Trial Court. The suit

was filed for a decree for granting permanent Injunction restraining the

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defendants either erecting electric pole in the suit property or drawing electric

line over the suit property.

3.The suit was filed on the pleadings, inter alia, that the plaintiff and

the 3rd defendant are brothers and sons of Arunachala Gounder. The suit

property and other property are the ancestral property of the plaintiff, the 3rd

defendant and their father Arunachala Gounder divided their family properties

under the Registered Partition Deed dated 13.03.1992. The “A” Schedule

property was allotted to the father viz., Arunachala Gounder and “B”

Schedule property was allotted to the 3rd defendant and “C” Schedule

property was allotted to the plaintiff. At that time of Partition, a 30 feet width

common cart track was formed between the lands of the plaintiff and the 3rd

defendant in R.S.No.1004/3 and the extent of 30 feet width common cart

track is 36 cents and it is also mentioned in the Partition Deed dated

13.03.1992. Thereafter, the 3rd defendant has constructed a house in his

property and applied service connection for newly build up house to the

defendants 1 & 2 and they were also make an arrangement during the month

of September 2010 and they were inspected the suit property and have

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discussed that they were going to draw electric wire by erecting electric pole

in the suit property. Immediately, the plaintiff has sent an objection letter to

the 2nd defendant on 08.09.2010 stating that not to erect electric pole in the

suit property and draw electric wire across the suit property and therefore the

defendants have dropped to effect service connection to the 3rd defendant

temporarily. The plaintiff has planted coconut trees in his field on the either

side of the common cart track of the suit property and the coconut trees are

well grown and fruit yielding and if the 1st and 2nd defendants were proposed

to draw electric wire by erecting electric pole in the suit property, then the

coconut trees of the plaintiff will be removed, because it may touch the

electric line and it may cause loss to the human life. Once the electric line is

drawn, the subordinate of the 1st and 2nd defendants will cut the coconut trees

without any information by saying that the same is touching the electric line

and if the electric wire is drawn over the suit property, the plaintiff will be put

to much loss and hardship. Further the 1st and 2nd defendants are not entitled

to erect electric pole in the common property without consent of the co-owner

under law. If the electric pole is erected, the plaintiff cannot use the suit

property at his maximum benefit and it will cause hindrance to the plaintiff in

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enjoying the suit property and his right of enjoyment of the suit property will

be deprived of. Hence the suit.

4.While 1st and 2nd defendant, the official of Tamil Nadu Electricity

Board was set ex-parte, the 3rd defendant resisted the suit inter alia

contending that the averments made in the plaint are false and denied. The

plaintiff has filed the suit for permanent injunction who did not describe the

suit property with identity. Apart from that, the plaintiff has suppressed very

many material facts. The plaintiff has already obtained an electric service

connection to the common well and his bore well in his name by erecting

electric pole in the suit property. In the Partition Deed dated 13.03.1992,

there is a recital to the fact that the parties are entitled to get electric service

connection in their own name through the suit property. The 3rd defendant has

already applied for electric service connection on 28.08.2004 and he has

waited for about 7 years, and even lapse of 7 years, the 3rd defendant is

enable to get electric service connection on account of seniority and on

account of the institution of the present suit, the plaintiff is preventing the 3rd

defendant to enjoy the fruits of the Partition Deed.

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Based on the above pleadings of either parties, the Court below had

framed the following issues for trial:-

1) Whether the plaintiff is entitled for permanent injunction as he prayed for

or not?

2) To what other relief the plaintiff is entitled for?

5.During trial, on the side of the plaintiff, the plaintiff examined himself

as P.W.1 and proved 3 documents as Exs.A1 to A3 and on the side of the

defendants, the 3rd defendant examined himself as D.W.1 and proved only

one document as Ex.B1.

6.The District Munsif cum Judicial Magistrate, Perundurai after having

considered the oral and documentary evidence adduced by either parties had

concluded that the plaintiff is entitled to the decree of permanent injunction

only with respect to the drawing of electric line over the suit property without

causing damage to the coconut trees. The other right of the 3rd defendant

from obtaining electric service connection without causing damage to the

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coconut trees of the plaintiff cannot in any way be restrained. Aggrieved by

the same, the 3rd defendant preferred an appeal which was partly allowed and

reversing the Judgment and Decree of the Trial Court passed by the

Subordinate Judge, Perundurai. Challenging the same, the appellant is before

this Court with the present Second Appeal.

7.This Second Appeal is admitted on the following substantial

questions of law:

1) Whether the Lower Appellate Court erred in

entertaining the First Appeal filed by the 1st respondent

as the Judgment and Decree passed by the Trial Court is

based on consensus made by the counsel for both the

appellant and the 1st respondent?

2) Whether the Lower Appellate Court committed

an error of law in partly allowing the First Appeal based

on oral statement of counsel for the respondents 2 and 3

who failed to file their pleading and lead evidence?

3) Whether acceptance of statement made by the

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counsel for the respondents 2 and 3 without pleading or

evidence on record without affording opportunity to cross

examine the person making factual statement vitiates

Judgment of the Lower Appellate Court?

4) Whether the Lower Appellate Court is vitiated

by non consideration of material evidence on record as

recital in the partition deed between the parties do not

permit erection of electric pole and drawing of electric

power line over the suit property?

8.The appellant and 1st respondent, who is the 2nd defendant are

brothers. It is an admitted fact that their properties were partitioned among

the brothers and their father. It is also an admitted fact that the property on

the southern side was allotted to the appellant and father and the northern

portion was allotted to the 1st respondent herein. It is also an admitted fact

that 30 feet width common cart track was formed between the lands of the

parties for the access as well as enjoyment of their respective shares.

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9.It is also an admitted fact that the appellant herein who was the

plaintiff in the suit has planted row of coconut trees within his properties on

either side of the cart track. Admittedly, the 1st respondent has constructed a

house in his property and had applied service connection to the respondents 2

and 3 herein who are the Superintendent Engineer and the Assistant Electrical

Engineer, Tamil Nadu Electricity Board, Thindal and they were also making

arrangement to effect service connection to the 1st respondent. The appellant

herein sent an objection to the 2nd respondent stating that not to erect electric

pole in the suit property and draw electric wire across the suit property.

10.According to the appellant, if the 2nd and 3rd respondents proposed

to draw electric wire by erecting electric pole in the suit property then the

coconut trees of the appellant will be removed, because it may touch the

electric line and it may cause loss to the human life and if the electric poles

are erected the appellant cannot use the suit property at his maximum benefit

and it would cause hindrance to the plaintiff in enjoying the suit property and

hence suit for permanent injunction was filed.

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11.The 1st respondent filed a detailed written statement. It reveals that

the appellant had already obtained an electric service connection to the

common well and his bore well in his name by erecting electric pole in the

suit property. Admittedly, as per the recitals in the partition deed, the parties

are entitled to get electric service connection in their own name through the

suit property.

12.The 2nd and 3rd respondents were set ex-parte. The trial Court after

considering the submissions of counsels for parties during their arguments

granted permanent injunction only with respect to the drawing of electric line

over the suit property without carrying damage to the coconut trees by

permitting the 1st respondent from obtaining electric service connection

without causing damage to the coconut trees of the appellant.

13.Against the judgment and decree, the 1st respondent preferred the

appeal. In the appeal, the 1st appellate Court after considering the arguments

put forth by parties and 2nd and 3rd respondent, allowed the appeal in part that

the appellant can draw electric wire in the 30 feet cart track from already

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existing electric pole and service connection can be given through insulated

cable wire in the suit property or through underground cable. Aggrieved by

the judgment and decree of the 1st appellate Court, this present Second

Appeal has been preferred. The only contention of the learned counsel for

appellant is that when the trial Court has passed judgment based on the

consensus given no appeal can lie and the 1st appellate Court ought to have

dismissed the appeal.

14.The learned counsel for the appellant would submit that the trial

Judge recorded in its judgment that at the time of arguments both the counsel

agreed that they have no objection if electric connection is given by

underground cable through the suit property without damaging the coconut

trees and even assuming the said rendering by the trial Court is wrong the

remedy for 1st respondent is to move the very same Court by way of review

when the matter is afresh in the mind of the Court and he cannot challenge it

by way of appeal and sought for setting aside the judgment and decree passed

by the 1st appellate Court. The learned counsel for the appellant also would

contend that since the cost for giving electric connection by underground

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cable is heavy and in order to avoid the expenses the 1st appeal was preferred

and the 1st appellate Court ought to have dismissed the appeal.

15.Per Contra, the learned counsel for the 1st respondent would submit

that as informed by R2 and R3 that since it is not possible to give electric

connection by underground cable the 1st respondent was forced to file appeal

and considering the facts and circumstances, the 1st appellate Court rightly

allowed the appeal in part and hence no interference is called for in this

appeal. As submitted by the learned counsel for the 1st respondent, the

appellant got service connection for his use and comfortable enjoyment and

the 1st respondent shall not be curtailed where he has equal right in the

common cart track that too when he was given the opportunity as per

seniority list after a very long years.

16.Even on perusal of the trial Court judgment, it is no where stated

that the 1st respondent should get service connection only by way of

underground cable and learned counsel for parties also not agreed that service

connection should be by way of underground cable only. In para 15 of the

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judgment, it is clearly mentioned as follows:

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jug;gpy; thjpl;l fw;wwpe;j tHf;Fiu”h; jd; thjj;jpy;. mry;

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mjpfhhpfs; fl;Lg;gl jahuhf ,Ug;gjhft[k;. ,e;j

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thjp bghJg; ghij tHpahf kpd; fk;gpfs; bfhz;L brd;W

kpd; ,izg;g[ tH';ff;TlhJ vd Ml;nrgid

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moapy; nfgps; K:yk; kpd; ,izg;g[ tH';fyhk; vd;W

TwpapUg;gjhft[k;. Mdhy;. ghJfhf;fg;gl;l nfgps;

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