Govindaraj vs Sivaraj Thevar
2021 Latest Caselaw 19668 Mad

                                                                                  S.A.No.408 of 2000



                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 24.09.2021

                                                        CORAM

                              THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                                  S.A.No.408 of 2000


                      Govindaraj                                                      ...Appellant
                                                           Vs.


                      1. Sivaraj Thevar
                      2. Ganesan                                                  ... Respondents


                      Prayer : Second Appeal filed under Section 100 of CPC, 1908 against the
                      decree and judgment dated 07.10.1999 passed in A.S. No.5 of 1999, on
                      the file of the Principal District Court, Nagapattinam, upholding the
                      decree and judgment dated 22.10.1998 passed in O.S. No.6 of 1997, on
                      the file of the District Munsif Court, Thiruthuraipoondi.


                                 For Appellant            : Mr. T. Girish
                                                            for Mr.Srinath Sridevan
                                 R1                       : Died
                                 R2                       : Name printed. No apperance.




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                                                                                   S.A.No.408 of 2000



                                                       JUDGMENT

The unsuccessful plaintiff before both the courts below has filed

the present second appeal.

2. For the sake of convenience, the parties are referred to as

per their ranking in the trial court and at appropriate places, their ranking

in the present appeal would also be indicated.

3. The plaintiff filed a suit in O.S.No.6 of 1997 before the

District Munsif, Thiruthuraipoondi, seeking for a declaration that he has

easementary right over the channel described as 'B' schedule property in

the plaint schedule and for a consequential relief of mandatory injunction

directing the defendants to restore the channel in its original form at their

own costs or in the alternative pass a decree of permanent injunction

restraining the defendants from in any manner interfering with the

plaintiff's right to draw water from the channel by laying a pipeline as per

the agreement dated 15.08.1996 and for costs.

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4. The case of the plaintiff in nutshell is as follows:

The 'A' schedule property measuring 0.44 cents in Survey

Number 97/1 of Veppancherry Village, Thirthuraipoondi Taluk, absolutely

belongs to the plaintiff and the 'B' schedule property which is a water

channel measuring 100' X 2' X 1' situate in Survey Number 97/2

Veppancherry Village, Thirthuraipoondi Taluk, and the property on the

western side of the said channel belong to the defendants. Both the

properties were originally owned by common ancestors of plaintiff and the

defendants.. The plaintiff who is cultivating his land ('A' schedule

property) has no other source of supply of water for irrigating his land and

he has been drawing water only from 'B' schedule water channel. While so,

the first defendant constructed a house on the eastern side of the 'B'

schedule property and the second defendant destroyed the channel on

06.08.1996 & 07.08.1996 and filled the same with sand. All his

complaints before the police and the revenue officials went in vain.

However, in the presence of some mediators in the village, the plaintiff and

the defendants entered into an agreement on 15.08.1996 (Ex.A1) wherein

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the defendants agreed to allow the plaintiff to draw water from the channel

by laying a pipeline through the land of the defendants. Subsequently, the

defendants prevented the plaintiff from drawing water from the suit

channel. Hence, the suit was filed by the plaintiff for the reliefs as stated

above.

5. The suit was resisted by the defendants on the following

grounds:

(1) No agreement was entered into between the plaintiff

and the defendants on 15.08.1996 as alleged by the

plaintiff and whatever was obtained was under

coercion in the police station.

(2) 45 cents out of 91 cents in 'B' schedule property was

gifted to the second defendant by the first defendant

even during the year 1992 who in turn constructed his

house in the year 1993.

(3) Thirthuraipoondi - Pudukottai Road lies on the

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western side of the 'B' schedule property and on further

west there is a drainage channel which is called as

'pandi vaikkal' and the said channel is much lower in

level compared to the properties of the plaintiff and the

defendants. The plaintiff's contention that the water

from the said drainage channel flow into 'B' schedule

water channel and that the plaintiff was irrigating his

land from the same is therefore, an imaginary one.

(4) No documentary evidence was adduced by the plaintiff

to show the existence of the channel.

(5) There is a common water channel on the eastern side

of the plaintiff's and the defendants' lands and both of

them were cultivating their respective properties by

drawing water from the said channel.

(6) The defendants never destroyed the 'B' schedule

channel as alleged by the plaintiff.

Therefore, they prayed for dismissal of the suit.

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6. The trial court, after framing necessary issues and after full

contest, dismissed the suit filed by the plaintiff holding that

(1) The plaintiff has not established the existence of 'B'

schedule channel.

(2) The plaintiff has not established his easementary right

over the said channel.

7. Aggrieved over the same, the plaintiff filed an appeal in A.S.

No.5 of 1999 before the Principal District Judge, Nagapattinam. The

learned Principal District Judge, Nagapattinam, after analysing the

evidence on record, upheld the findings of the trial court and dismissed the

suit filed by the plaintiff.

8. Now, the second appeal is filed by the plaintiff and my

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learned predecessor framed the following substantial questions of law.

(1) Whether Ex.A1 which recognises the right of the

plaintiff to irrigation through the kanni (channel), can

be disregarded by the courts when the same is not

proved to be vitiated by fraud, coercion on undue

influence?

(2) Whether the failure to consider the V.A.O's evidence

which categorically speaks of the kanni is not

erroneous?

(3) Whether the courts ought not to have declared the

easement of absolute necessity when its existence is

clearly shown in the commissioner's report?

(4) Whether the courts below ought not to have granted

the alternate relief of injunction on the basis of Ex.A1?

9. The plaintiff claims easementary right by way of necessity

over the 'B' schedule water channel measuring 100' x 2' x 1'. Admittedly,

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the 'B' schedule property belongs to the defendants. The plaintiff's

contention is that he has been drawing water for irrigating his lands

through the 'B' schedule channel and that the defendants destroyed the said

channel on 06.08.1996 and 07.08.1996. His further contention is that on

15.08.1996, an agreement was entered into between the plaintiff and the

defendants wherein the defendants agreed to allow the plaintiff to draw

water from the suit channel by laying a pipeline from the channel to his

land through the defendants' lands. Though the defendants denied of

having entered into such an agreement, it was also contended by them that

Ex.A1 was signed by them in the police station as the police threatened

them to sign on that. However, since the suit is filed by the plaintiff

seeking for a declaration that he is entitled to draw water from the 'B'

schedule channel as he has right over the same by way of easement of

necessity, the plaintiff has to establish his case by adducing acceptable

evidence. It is to be pointed out that the plaintiff wants to lay a pipeline in

the land of the defendants to draw water from the 'B' schedule channel.

Both the courts below had concurrently held that the plaintiff had not

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adduced any evidence to show the existence of the suit channel. An

Advocate Commissioner was appointed by the trial court, who filed his

report and plan (Ex.C1 and Ex.C2). In the report, he has stated that there

were traces of 40 feet long water channel in the land of the defendants.

But the plaintiff has described the 'B' schedule property as 100' x 2' x 1'.

Though the plaintiff had contended that the properties of the plaintiff and

the defendants were originally owned by common ancestors, no evidence

was adduced by him to establish the same. It is also pertinent to mention

that both the courts below had rightly and concurrently held that Ex.A2 to

Ex.A6 adduced on the side of the plaintiff is least useful to the plaintiff to

prove the existence of the suit channel. It is also held that the approved

plan dated 28.03.1992 for construction of a house by the defendants does

not show the existence of a water channel in the land of the defendants. In

fact, the trial court has observed that when a house is constructed over an

agricultural land, there should be a mention about the existence of a water

channel, if any, in the approved plan and that since there is no mention

about the same in Ex.B1, it has to be held that the plaintiff did not prove

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that the suit channel existed as claimed by him.

10. An easement of necessity is an easement without which the

property cannot be used at all and not one merely necessary to the

reasonable enjoyment of the property. It is in evidence that there is a

water channel on the eastern side of the plaintiff's and the defendants'

properties and that both the plaintiff and the defendants were drawing

water from the said channel for irrigating their respective lands. In the

instant case, as observed earlier, the plaintiff has not proved the existence

of water channel in the land of the defendants and that he has easementary

right by way of necessity over the same. When the second defendant

constructed his house in the year 1993, the plaintiff did not raise any

objection immediately. On the other hand, he had filed the suit only in the

year 1997. Now the plaintiff wants to lay a pipeline in the land of the

defendants from the alleged water channel (B schedule property) upto his

land as per Ex.A1. Both the courts below had analysed the evidence on

record in a threadbare manner and contended that the prayer sought for by

the plaintiff cannot be granted and this Court does not see any reason to

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interfere with the same. In fact, cogent reasons have been assigned by

both the courts below for dismissing the suit filed by the plaintiff. Hence I

do not want to repeat the justification given by both the courts below in the

present second appeal. Suffice to say that all the observations made by

both the courts below are based on a well laid principles of law and

therefore, the second appeal deserves to be dismissed.

11. In the result,

i. the appeal is dismissed. No costs.

ii. the decree and judgment dated 07.10.1999 passed by

the learned Principal District Judge, Nagapattinam, in

A.S. No.5 of 1999, upholding the decree and judgment

dated 22.10.1998 passed by the learned District

Munsif, Thiruthuraipoondi, in O.S. No.6 of 1997, are

upheld.

24.09.2021 Index: Yes/No

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Internet: Yes/No Speaking/Non-Speaking order bga

http://www.judis.nic.in S.A.No.408 of 2000

R. HEMALATHA, J.

bga

To

1. The Principal District Judge, Nagapattinam

2. The District Munsif, Thiruthuraipoondi,,

3. The Section Officer, VR Section, High Court, Madras

S.A.No .408 of 2000

24.09.2021

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