Madras High Court
K.Sankaran vs The President on 3 February, 2022
S.A(MD)No.20 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.02.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.20 of 2022
and C.M.P(MD)No.219 of 2022
K.Sankaran,
(The Priest and Proprietory of the Sangaiya Temple),
S/o.Late Karuppa Thevar.
... Appellant/Appellant/Plaintiff
Vs.
1.The President,
Alagamayaganpatty Village,
Village Panchayat Office, Periyakulam Taluk,
Theni District.
2.The Block Development Officer,
Periyakulam Panchayat Union,
Periyakulam Vadugapatti Main Road,
Periyakulam Taluk, Theni District.
3.The Assistant Engineer,
TNEB Periyakulam East Distribution,
Periyakulam Vaigaidam Road, Periyakulam Taluk,
Theni District.
4.The Superintending Engineer,
TNEB, Periyakulam Vaigaidam Road,
Periyakulam Taluk,
Theni District. ... Respondents/Respondents/Defendants
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 20.03.2020 passed
1/16
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S.A(MD)No.20 of 2022
in A.S.No.5 of 2019, on the file of the Subordinate Court, Periyakulam,
confirming the judgment and decree dated 18.09.2018 passed in
O.S.No.225 of 2013, on the file of the District Munsif Court,
Periyakulam.
For Appellant : Mr.K.Appadurai
For RR 1 & 2 : Mr.G.Suriyananth
Additional Government Pleader
For RR 3 & 4 : Mr.B.Ramanathan
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.225 of
2013, by the District Munsif Court, Periyakulam and in A.S.No.5 of
2019, by the Subordinate Court, Periyakulam, are being challenged in
the present Second Appeal.
2. The appellant/plaintiff has instituted a suit in O.S.No.225 of
2013, on the file of the trial Court for the relief of mandatory injunction
directing the first defendant to remove the bore-well and room situated
in the vacant site on the western side of the suit property; directing the
defendants 3 and 4 to disconnect the electricity connection given to the
said bore-well; directing the first defendant to remove the newly dug
bore-well abetting east-west wall of the Temple; from restraining the
defendants 3 and 4 from giving electricity connection for newly dug
bore-well; from restraining the first defendant from using in any way
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S.A(MD)No.20 of 2022
the newly dug bore-well and from restraining the defendants from
interfering with the possession and enjoyment of the plaintiff, wherein,
the present respondents have been shown as defendants.
3. The case of the plaintiff is that the suit property is Sangaiya
Temple and the said Temple has vacant land around the Temple and it
is classified as 'Vaikaal Poramboke'. The plaintiff's ancestors, in the
year 1958, had constructed the said Temple from their own earning
and also constructed a compound wall and treating the same as a
family deity and performing pooja works in the said Temple. The
plaintiff has been issued 'B' memo by the revenue authorities since
from 1995. The plaintiff has purchased Survey Nos.732/2, 732/1A and
732/1C from one S.N.Govindaraj by virtue of a registered sale deed,
dated 24.09.2008 and he has enjoyed the property along with the
property measuring an extent of 5 ares attached to the suit property,
which was left out by the said S.N.Govindaraj. The plaintiff is in
possession and enjoyment of the suit property other than the Temple
property and has dug a bore-well at the north-east corner of the
Temple and obtained an electricity connection. In the meanwhile, the
first defendant had dug a new bore-well before 1-1/2 years on the
western side of the suit property and the same was objected to by the
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S.A(MD)No.20 of 2022
plaintiff. The first defendant assured him that he would remove the
bore-well at an early point of time, but still the first defendant has not
removed the same. Further, on 11.12.2013, the first defendant dug
another bore-well abetting the east-west of the Temple wall, though it
was also objected to by the plaintiff. The first defendant had attempted
to get electricity connection from the defendants 3 and 4. If the
bore-wells are going to be run, there are possibility of scarcity of water
and may not be able to maintain 'Annathanam'. Hence, the plaintiff has
filed the suit for the above stated relief.
4. The first defendant has filed a written statement denying all
the averments made in the plaint and submitted that these bore-wells
are dug by the first defendant only to distribute drinking water for the
Village people. There are not only suit Temple, but also another Temple
belonging to the Village as well as the Pandaram Community, apart
from the Alagarsamy Temple worshipped by one Pitchai Servai. There
is a pathway leading to the crematorium and a hand pipe was also put
up before 40 years ago. There is an 'Oorani' in the suit property. The
plaintiff's case is that it is his own lands are all denied as false and the
suit property is classified as poramboke land. Survey Nos.732/1,
732/1A and 732/1C are purchased by the plaintiff, has to be proved by
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S.A(MD)No.20 of 2022
him. The said S.N.Govindarajan left the suit property for him are also
false and further submitted that the plaintiff has not dug a bore-well in
the north-east corner for his usage and further submitted that before
45 years and two years earlier, bore-wells were dug by the Panchayat
and the water has been distributed to the Village people, which is
having a population of 1300 and also for people of Endapuli Panchayat,
this bore-well water is distributed as drinking water and the plaintiff's
submission that the persons, namely, the devotees who are coming to
the plaintiff's Temple, are disturbed by the erection of bore-well are not
accepted and denied as false. Further submitted that the plaintiff has
got a coconut grove in the nearby area and he has taken water from
the bore-well for his own purpose and with a selfish motive, he has
sought for the prayer to remove the bore-well. Further, the said
bore-well was not dug within the Temple premises and these bore-wells
are only dug in the poramboke land and the festivals are being
conducted only once in a year and he cannot claim that the property as
his personal property and that the bore-well has been dug 40 years
back. The Revenue Department and Hindu Religious and Charitable
Endowments Department are necessary parties to the suit, as the said
suit property stands in the vaikaal poramboke. The plaintiff has not
made them as a party to the suit and prayed for dismissal of the suit
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for non-joinder of necessary parties.
5. Before the trial Court, on the side of the plaintiff, the plaintiff
examined himself as P.W.1 and and Exs.A1 to A12 were marked. On
the side of the defendants, neither any witness was examined nor any
document was marked.
6. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both the
oral and documentary evidence, has dismissed the suit.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S.No.5 of
2019 on the file of the first Appellate Court. The first appellate Court,
after hearing both sides and upon reappraising the evidence available
on record, has dismissed the appeal and confirmed the Judgment and
decree passed by the trial Court.
8. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the plaintiff, as appellant.
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9. The learned counsel appearing for the appellant/plaintiff would
submit that the Courts below have totally misconceived to find the right
accrued and title of the appellant rather than the real nature of the
dispute as well as the nature of possession and enjoyment of the
appellant in Survey No.738, which is a 'vaikaal poramboke'. The Courts
below have failed to consider the bonafide case of the appellant that
the suit properties include Survey No.738 'vaikaal poramboke' is in his
possession and enjoyment, as evident from 'B' memo notice and
penalty charges being paid and there is no dispute of title over the
same. The Courts below failed to see that when the possession of the
appellant under 'B' memo notice, though it is an encroachment it is a
permissive occupation in the nature of using it for serving
'Annathanam' on festive occasions in the Temple and for other Temple
activities and not used for any other purpose. The Courts below ought
to have seen that when the appellant has been in permissive
occupation, paying penalty under 'B' Memo notice and possession of
Survey No.738 is evidently proved, dugging deep bore-wells on the
north-east and south-eastern side and putting up construction of
buildings for motor etc., which is in the possession of the appellant is
liable for removal. Hence, the relief as claimed for mandatory
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injunction is in order, justified and refusal to grant is totally
misconceived and perverse in nature.
10. The learned counsel appearing for the appellant/plaintiff
further submitted that the Courts below ought to have considered the
real grievance of the appellant in view of the fact that the first
respondent had dug huge bore-wells near to the compound wall of the
Temple, due to which huge ground water is sucked through heavy
motor using electrical power, resulting in drying up of ground water
within a minute. As the bore-well of the appellant is for a limited
bonafide use and purpose has been dug to a shorter depth, hence it is
dried. The Courts below ought to have seen that in the 'Vaikaal
poramboke' no concrete construction is permissible, such construction
was illegal, unlawful and unauthorized without due approval, besides
electrical motor and electricity service connection in the water source
area is also illegal and violating the law of the land posing life threat to
the innocent nearby during the rainy season and the flowing of water.
The Courts below ought to have drawn adverse inference to the
defence case as pleaded by the first defendant that the bore-wells had
been dug for making water supply to the Villagers, especially, when no
oral evidence was let in through the first defendant or documentary
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evidence was marked on behalf of the first defendant. Hence, there is
no case for defence and the entire defence case is proved to be false.
The Courts below failed to see that insofar as the plaintiff is concerned
being in permissive occupation as evident from 'B' memo notice, he
has been using the Survey No.738 only as a vacant site during Temple
festival for doing 'Annathanam' and for other festival activities. In view
of bore-wells, the first defendant is preventing the plaintiff from
enjoying the said Survey No.738, who is an encroacher trespassing
into the possession and enjoyment of the plaintiff's land. The Courts
below ought to have seen that not only 'B' memo notice is issued since
1995 to the appellant for holding possession of Survey No.738, but
from the inception of Temple, which was originally established in the
year 1958, the said Survey No.738 has been used for the Temple
festivals. Thus, the plaintiff has been in continuous possession and
enjoyment of Survey No.738 for over 60 years. Hence, he has right
based on adverse possession and entitled for easement of right over
Survey No.738 and prayed for allowing the Second Appeal.
11. The learned Government Advocate appearing for the
respondents 1 and 2 would submit that the suit property is a water
course poramboke and the first defendant has put up a bore-well
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before time immemorial through which water supply to the Village
people has been undertaken.
12. Heard the learned counsel appearing for the appellant, the
learned Government Advocate appearing for the respondents 1 and 2
and the learned counsel appearing for the respondents 3 and 4 and
also perused the records carefully.
13. It is the case of the plaintiff that the suit property consists of
Temple and watercourse poramboke and that the plaintiff and his
ancestors have constructed the Temple and worshipped since from
1958 and that in and around the western side of the Temple, there is a
vacant site, which used for devotees and for serving 'Annathanam'
during the Temple festival and that the plaintiff has been assessed
penalty and issued with 'B' memo and that the first defendant has dug
a bore-well abutting the bore-well put up by the plaintiff and built a
room which has caused disturbance to the better usage of Temple as
well as the devotees.
14. It is the case of the defendant that the suit property is water
course poramboke land and that the first defendant has put up a bore-
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well and draw water from it for the usage of Village people and that
there are other Temples in and around the suit Temple which belonged
to different communities and also a hand pipe, which was put up 40
years ago.
15. The learned counsel for the plaintiff submitted that the first
defendant has dug a bore-well for distributing the drinking water to the
Village people and that the first defendant should consider the welfare
of the general public and not the individual plaintiff and further
submitted that the trial Court as well as the first Appellate Court have
considered that there was disturbance caused by the defendants for
usage of water, also not proved with substantiate evidence. It is also
stated by the learned Government Advocate appearing for the
respondents 1 and 2 that only once in a year, Village festival is
conducted and that too, only 13 family members are participating and
as such, there cannot be any scarcity of water as claimed by the
plaintiff which has also not been proved by him by letting in
appropriate evidence. Further, the issuance of 'B' memo charge alone
will not be subjected to claim title to the property, as he himself
admitted that the suit property is classified as water course (vaikaal
poramboke). The submission that the Temple is cultural and they
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worshipping from 1958 is also without any valid, proof and materials.
The plaintiff's contention that the first defendant has dug bore-wells
abetting the compound wall put up by the plaintiff and the motor room
constructed are causing disturbance was also not proved.
16. When the plaintiff admitted that the suit property is a water
course vaikaal poramboke and the first defendant has put up the
bore-wells only for drawing water to the Village people at large and
also to nearby Villages in Endapuli Panchayat and the first bore-well is
in possession and enjoyment from 40 years ago by the defendants and
only two years back, a new bore-well was put up, that too, it is not in
his land and it is a water course poramboke in Survey No.738, which is
a 'Vaikaal poramboke'. Survey No.738 is a water course pormaboke
and suit Temple is situated in Survey No.736 would prove that the
plaintiff has not made out a case for interference.
17. Through Ex.A.5, it is seen that in the western side of the suit
Temple in Survey No.736, Survey No.738 is situated which is a water
course poromboke and there are other Temples in Survey No.736 and
from the photographs, it is seen that there is no disturbance made to
the suit property ie., Temple and the plaintiff cannot claim and canvass
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that the bore-well is situated outside the compound wall is disturbing
his ingress and egress. Further, the plaintiff is worshipping only once in
a year and there is no question of any scarcity of water during the time
of festival and if so, he can always approach the authority for providing
water by payment of costs. As stated by the plaintiff, they are
providing water to other Villages and the plaintiff cannot question the
act of the Panchayat stating that as if they are selling water, it is for
the Panchayat officials to decide and to provide water to various people
in the Villages and without any proof being filed, he cannot now
canvass this ground in the Second Appeal.
18. The plaintiff's contention is that the authorities have to show
him the sanctioned bills and vouchers are also not within the purview
of this Court or the claim made by the plaintiff, as it is for the
Government authorities, namely, Audit Department, to take care of the
cost spent for putting up a bore-well whether fund was allotted or
through which scheme the bore-well was dug, is not within the purview
of the suit. The plaintiff on mere apprehension, without any proof or
evidence that water scarcity will arise, came before this Court. As the
public at large are benefited by the newly dug bore-well and it is
nowhere proved that he has been deprived of water. No evidence was
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produced to show that there was scarcity of water at any point of time.
The statement made by the first defendant in his written statement is
that the plaintiff is also having a coconut grove and the water is being
taken from the bore-well to the coconut grove and that is why he has
apprehension is also without any proper materials. As the plaintiff is
not in a position to prove that he is having right over Survey No.738,
which is also a Vaikaal poramboke and also time and again, the Hon'ble
Supreme Court as well as the High Court has been passing various
orders that there cannot be any claim made by any individuals on a
water course poramboke.
19. On a perusal of Ex.A.5, it is seen that Survey Nos.736 and
738 are Temple and Vaikaal poramboke. That being the case, the
plaintiff cannot have any right over the above properties and it is also
seen that there is also another Temple situate in Survey No.736.
20. Accordingly, the plaintiff has got no right over Survey No.738
and the plaintiff cannot come and seek for such prayer against the
Government, who is providing water to the general public in the Village
as well other Villages. The Tahsildar is the concerned party, who is the
Revenue authority, to decide as to whether the 'B' memo charges has
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been levied or not. That being the case, due to non-joinder of
necessary party also, the suit has been dismissed. Hence, this Court is
of the view that the plaintiff has not made out any case and no
question of law, much less the substantial question of law to be
decided by this Court in this Second Appeal.
21. For the reasons aforesaid, this Court is of the considered
view that no substantial questions of law has been made out by the
appellant/plaintiff to interfere with the well considered judgments and
decrees rendered by the Courts below and accordingly, the Second
Appeal fails and the same stands dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
03.02.2022
Index : Yes/No
Internet : Yes/No
ps
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S.A(MD)No.20 of 2022
V.BHAVANI SUBBAROYAN, J.
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the
advocate / litigant concerned.
To
1.The Subordinate Court,
Periyakulam.
2.The District Munsif Court,
Periyakulam.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.20 of 2022
03.02.2022
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