Madras High Court
Muthukumaran vs Ramalingam on 20 January, 2022
S.A.No.586 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.586 of 2017
Muthukumaran ... Appellant
Vs.
Ramalingam ... Respondent
PRAYER: The Second Appeal has been filed under Section 100 of the Civil
Procedure Code to set aside the decree and judgment in A.S.No.19 of 2014
passed by the First Additional Subordinate Judge, Villupuram dated 19.09.2016
confirming the judgment and decree in O.S.No.194 of 2011 dated 28.02.2014
on the file of Principal District Munsif, Villupuram.
For Appellant : Mr.R.Rajesh
For Respondent : Ms.P.Kavitha Balakrishnan
JUDGMENT
The unsuccessful plaintiff is the appellant before this Court.
2. The plaintiff filed a suit for declaration of his undivided 3/5th share
https://www.mhc.tn.gov.in/judis
S.A.No.586 of 2017
in the well, the suit property, permanent injunction restraining the defendant
from interfering with his right to take water from the well and mandatory
injunction that the defendant to remove the debris from the suit well. According
to him originally the suit property belonged to one Jeyrama Iyer from whom the
defendant's father purchased undivided 1/5th share in the well on 25.06.1963.
Out of the remaining 4/5th share plaintiff is entitled to undivided 3/5th share with
a right of way in the said survey field to take water from the said well by virtue
of sale deeds executed by the said Jeyarama Iyer in favour of the plaintiff's
father on 14.06.1965,24.01.1970 and 07.03.1970 and another sale deed
executed by one Selvakumari and Vijaybal who purchased the share in the well
from the said Jeyarama Iyer by virtue of sale deed dated 23.12.2009. The
plaintiff father was enjoying the well water. However, after five years the well
became dry during summer days. On 06.09.2010, all of a sudden the defendant
closed the well by dumping debris with the help of hooligans. His attempt to
prevent the act did not fructify. Therefore, he issued a legal notice calling upon
the defendant to remove the debris from the 21 feet well. The defendant having
acknowledged the notice on 14.09.2010 failed to reply the same. Therefore, he
filed the suit for declaration of 3/5th undivided share and consequential relief.
https://www.mhc.tn.gov.in/judis
S.A.No.586 of 2017
3. The defendant denied the averments made in the plaint and filed a
detailed written statement that the plaintiff father infact had purchased3/4 th
share in the 1/5th share in the well. Other than the plaintiff several persons have
purchased right to fetch water from the very same well. The well become barren
in the year 1973 and was unused. Due to the non user for the past 38 years it
got dilapidated and defunct and natural non use. Infact from the year 1973, the
Panchyat has laid pipelines to provide water to each and every house. The
plaintiff and defendant has got water connection to their houses. Apart from
that in the year 1973 itself the plaintiff has dug a well in his own land and was
using it. The plaintiff filed a suit with an ulterior motive to cause mental agony
to the defendant since the plaintiff picked up quarrel with the defendant with
regard to a lane between their houses. The suit was filed in O.S.No.275 of 1998
and the same was dismissed and an appeal was filed by him in A.S.No.9 of
2013 and it was decided in favour of the plaintiff. Thereafter, he filed another
suit in O.S.No.390 of 2008 and the defendant filed a counter suit is O.S.No.409
of 2008. Finally, the parties have reached a compromise and a compromise
decree was passed.
4. As per the compromise a compound was built between the land of
https://www.mhc.tn.gov.in/judis
S.A.No.586 of 2017
the parties and plaintiff has lost his right to use the well and he is estopped from
claiming right over the well. Since the other owners of the well were not
impleaded the suit is bad for non joinder of necessary parties. The Trial Court
framed appropriate issues and found that the plaintiff is not entitled to the
declaration sought for and dismissed the suit. The Appellate Court confirmed
the findings of the Trial Court and dismissed the appeal preferred by the
plaintiff. Aggrieved over the same, the Second Appeal has been preferred.
5. Heard the submissions of both the sides. Both the parties have
consented to argue the matter on the following questions of law framed in the
memorandum of the Second Appeal.
“A. Whether the decrees and jugments of the
courts below are legally sustainable in as much as that
they erred in dismissing the suit and ignoring the fact
that the Appellant has established his case by Ex.A.2 to
Ex.A.5 and admission of the defendant?
B) Whether the decrees and judgments of the
Courts below are legally sustainable in as much as that
they erred in dismissing the suit on the ground that, the
suit is bad for non-joinder of necessary parties against
them, when especially no cause of action is against
https://www.mhc.tn.gov.in/judis
S.A.No.586 of 2017
them?”
6. From the materials placed before this Court, it is noted that the
plaintiff filed a suit for declaration of his 3/5 th share in the well in the suit
property. Even though he claim 3/5th share, he would admit in his evidence that
apart from him more than 7 to 8 persons have purchased right to fetch water
from the well. The same was mentioned in the written statement inspite of the
same, he has not impleaded any of the parties in the suit.
7. The Trial Court had also found that having admitted there are other
owners, the plaintiff could have examined them as witnesses but that also he
failed to do. Therefore, on the first issue the finding was given that the suit is
bad for non joinder of necessary parties as admitted by him.
8. Secondly, the defendant has denied the title of the plaintiff to 3/5 th
undivided share in the well and would contend that he had 3/4th share out of
1/5th undivided share. The plaintiff failed to prove the fact that he is entitled to
3/5th undivided share in the well. No evidence was let in except for the self
serving evidence of the plaintiff and no independent witnesses were examined to
https://www.mhc.tn.gov.in/judis
S.A.No.586 of 2017
prove the fact. Therefore, in the absence of necessary parties as well as
sufficient evidence on the side of the plaintiff the claim for declaration was
negatived by the Trial Court as it was not proved.
9. Thirdly, the compromise deed filed before the Court in O.S.No.390
of 2008 and 409 of 2008 was marked as Ex.B1. As per the compromise deed
the plaintiff has consented to build the compound wall around the defendant's
property. Once he has consented for constructing compound wall, he is bound
by the promise made by him. In the compromise deed there is no mention about
the reservation of rights with regard to use of the well. Infact no mention about
the well at all. The plaintiff would contend that 1½ feet gap was let out in the
compound wall for the purpose of having access. No such pleadings were made
in the plaint nor any recital in the compromise deed filed before the Court in this
regard. Therefore, the Court has found that the plaintiff is estopped from
claiming any access and right over the well as per Sec.115 of The Indian
Evidence Act, 1872.
10. Apart from this, the statement of the defendant that the well was
left unused for past 3 years and it could not have been filled by debris over
https://www.mhc.tn.gov.in/judis
S.A.No.586 of 2017
night. But the factum that it was dumped with debris was not proved through
independent witnesses. Except for the legal notice there is no iota of evidence
that the well was filled up with debris by the defendant. In the absence of any
evidence, the Trial Court refused to accept the contention of the plaintiff and
negatived to the prayer of permanent injunction as well as mandatory injunction
of restoring the well. The finding of the Trial Court is based on sound reasons
and the fact was confirmed by the First Appellate Court considering the
evidence. Infact the defendant had denied the suggestion that the well was
demolished by him and that it was not closed by him. Therefore, it is clear that
the plaintiff has failed to discharge the burden cast upon him that he had 3/5 th
undivided share in the well, right of way to access the same, which was closed
by the defendant on that particular day and that he is not bound by the
compromise deed.
11. In such circumstance, I do not find any discrepancy in the
concurrent orders passed by the Courts below and as such the judgments are
legally sustainable and they cannot be interfered. The questions of law is
answered against the appellant.
https://www.mhc.tn.gov.in/judis
S.A.No.586 of 2017
12. The factum that there are several owners as admitted by the
plaintiff in his own evidence and even after putting him on notice, he failed to
either implead them or to examine them as witnesses. In that event the finding
that suit is bad for non joinder of parties is also correct. Accordingly, the second
question of law is answered against the appellant. In fine, the Second Appeal
merits no consideration, accordingly dismissed. There shall be no order as to
costs.
20.01.2022.
Internet:Yes
Index:Yes/No
To
1.The First Additional Subordinate Judge, Villupuram
2. The Principal District Munsif, Villupuram.
M. GOVINDARAJ,
J.
kpr
https://www.mhc.tn.gov.in/judis
S.A.No.586 of 2017
S.A.No.586 of 2017
20.01.2022
https://www.mhc.tn.gov.in/judis
