Madras High Court
Marappa Gounder vs Subramaniyam on 2 March, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
SA.No.139 of 2014
and MP No.1 of 2014
1. Marappa Gounder
2. Nagamuthu
Both are residing at
Nagadevampalayam Village,
Gobichettipalayam Taluk,
Erode District .....Appellants/Appellants/Plaintiffs
Vs.
1. Subramaniyam
2. Vadivel
3. Kumarasamy Gounder
All are residing at
Nagadevampalayam Village,
Gobichettipalayam Talu,
Erode District .. Respondents/Respondents/
Defendants
Prayer: Second Appeal filed under section 100 of the Code of
Civil Procedure to set aside the decree and judgment dated
17.09.2013 made in A.S.No.39 of 2012 on the file of the learned
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2
Sub Court, Gobichettipalayam confirming the judgement and
decree dated 26.09.2012 made in O.S.No.351 of 2007 on the file
of the learned District Munsif Court, Gobichettipalayam.
For Appellant : Mr.N.Manokaran
For Respondents : Mr.Titus Enock for
Mr.I.C.Vasudevan
JUDGMENT
The plaintiffs are the appellants in this second appeal.
2. The plaintiffs are brothers. The 1st Defendant and the
2nd defendant are brothers and the 3rd defendant is a co-sharer in
the property. The plaintiffs filed a suit seeking for the relief of
permanent injunction restraining the defendants from obstructing
or interfering with their right in taking water from the well to their
agricultural lands.
3. The case of the plaintiffs is that old survey No.380
(New S.F No.90) had a total extent of 4.37 acres. According to the
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plaintiffs, 2.16 acres on the southern side belongs to the 1st and
2nd defendants and 1.07 acres on the northern side belongs to the
plaintiffs. An extent of 1.14 acres, which is the middle portion
belongs to the 3rd defendant. The further case of the plaintiffs is
that there is a common well situated in the southern portion
belonging to the defendants 1 and 2. It is stated that the plaintiffs
are entitled for 1/4th share in the common well and they have
fitted a 5 HP Electric Motor and pump to the well and they are
drawing water from the said well to irrigate their lands. It is
further stated that out of 8 days, the plaintiffs have the right of
taking water from the common well for two days, the 1st and 2nd
defendants have the right to take water for 3 ½ days and the 3 rd
defendant has the right to take water for the remaining 2 ½ days.
This was followed for a long number of years and all the parties
were accordingly irrigating their agricultural lands from the
common well.
4. The grievance of the plaintiffs is that the defendants 1
and 2 started claiming exclusive right over the common well and
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prevented the plaintiff from drawing water from well to irrigate
their lands. Hence, left with no other option, the plaintiffs filed the
suit seeking for the relief of bare injunction.
5. The defendants 1 and 2 filed a written statement and
admitted the properties that are enjoyed by the plaintiffs, the 1st
and 2nd defendants and the 3rd defendant and the extent as stated
by the plaintiffs. The only point of disagreement for the
defendants 1 and 2 is that the plaintiffs do not have any right to
draw water from the well and they denied that the plaintiffs had
any share in the well. According to these defendants, the plaintiffs
were never allowed to irrigate their agricultural lands from the suit
well and hence, they sought for the dismissal of the suit. The 3rd
defendant never contested the suit and he remained exparte.
6. Both the Courts below concurrently held against the
plaintiffs and found that the plaintiffs are not entitled for the relief
sought for by them. Aggrieved by the same, the plaintiffs have
preferred the present second appeal.
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7. The learned counsel for the appellants submitted that
the defendants 1 and 2 have clearly admitted the manner in which
the lands are put to use and the existence of the channel between
points A and B. Once such an admission is made, that prima facie
establishes the right claimed by the plaintiff who uses the water
drawn from the suit well to irrigate his agricultural lands. The
learned counsel also placed reliance upon Ex.C1 to C4 and the
Exhibit X series to explain the physical features and also the
continuous usage of the water from the suit well to irrigate the
lands belonging to the plaintiffs. The learned counsel further
submitted that the EB service connection stood in the name of
Karuppanna Gounder, who is the father of the plaintiffs and that
by itself shows that the plaintiffs have been using the suit well and
drawing water from the same through motor and irrigating their
agricultural lands. The learned counsel concluded his arguments
by submitting that the usage of water from the suit well has been
substantially proved before the Courts below and the same was
not taken into consideration by both the Courts below which
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warrants the interference of this Court in this second appeal.
8. This Court has carefully considered the submissions
made on either side and the materials available on record and this
Court also carefully went through the findings of both the Courts
below.
9. In the present case, the defendants 1 and 2 have
denied the very right of the plaintiff to draw water from the well in
order to irrigate his agricultural lands. While dealing with this
issue, both the Courts below took into consideration Ex.A50, A61
& A62. Ex.A50 is the sale deed that stands in the name of
Semmanna Gounder. Ex.A61 is the Sale deed that stands in the
name of the Pongianna Gounder and his wife. Ex.A62 is the sale
deed that stands in the name of Semmanna Gounder, which was
executed by Avinasi Gounder. On considering all these documents,
both the Courts came to a categoric conclusion that the grand
father of the plaintiffs had given up all his rights in the well that is
situated in old survey Nos.380, 399 and 384. Thus, the Courts
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came to a conclusion that the plaintiffs are tracing a right in the
well which was already given up by their grand father long back.
10. It must be borne in mind that the suit was filed by the
plaintiff claiming for the relief of bare injunction. There is a serious
dispute on the very right of the plaintiff to use the water from the
suit well. Under such circumstances, the plaintiff ought to have
sought for the relief of declaration of his right and unfortunately,
the plaintiff never sought for this relief. This is a crucial fact that
becomes fatal to the case of the plaintiff.
11. Insofar as the enjoyment of the water from the suit
well, both the Courts below took into consideration the electricity
service connection that stands in the name of Karuppana Gounder,
who was claimed to be the father of the plaintiffs. Both the
Courts found that the name of the father of the defendants 1 and
2 is also Karuppana Gounder and therefore, it cannot be said that
the connection was granted in the name of the father of the
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plaintiffs. This is more so since the grand father of the plaintiffs
had already given up the right to use the suit well.
12. Both the Courts below also took into consideration the
report of the Commissioner and came to a conclusion that the
same does not really help the case of the plaintiffs. Ultimately,
both the Courts below held that the suit well exclusively belongs
to the defendants 1 and 2 and the plaintiffs do not have any right
or share in the suit well.
13. The findings of both the Courts below is based on the
evidence that is available on record. This Court does not find any
perversity in the findings of both the Courts below and it does not
warrant any interference of this Court. In any event, no substantial
questions of law are involved in the Second Appeal.
14. In the result, this Second appeal is dismissed.
Considering the facts and circumstances of the case, there shall be
no order as to costs. Consequently, the connected miscellaneous
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petition is closed.
02.03.2022
Speaking Order
Index : Yes / No
Internet : Yes / No
rka
N.ANAND VENKATESH.,J
https://www.mhc.tn.gov.in/judis
rka
To
1.The Sub Court, Gobichettipalayam
2. The District Munsif Court, Gobichettipalayam
Copy To:-
The Section Officer
VR Section, High Court
Madras.
SA.No.139 of 2014
02.03.2022
https://www.mhc.tn.gov.in/judis
