Madras High Court
V.Alagesan vs / on 23 March, 2023
S.A.(MD)No.272 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.272 of 2018
and
C.M.P.(MD)No.7568 of 2018
1.V.Alagesan
2.Rajammal
3.Sudhanthiram @ Sudhanthirakani
4.Kartheesan
5.Radha
6.Saroja
7.Manikandan
8.Rekha
9.Kalpana
10.Nisha
11.Kamala
12.Kasthuri
13.Balakrishnan
14.Padma
15.Uthamaseelan ... Appellants
/Vs./
K.Evans Bright ... Respondent
1/8
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.272 of 2018
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the judgment and decree passed in A.S.No.161 of 2017,
on the file of the Sub-Court, Tiruchendur, dated 10.10.2017 dismissing
the judgment and decree passed in O.S.No.75 of 2009 on the file of the
District Munsif Court, Tiruchendur dated 30.01.2013.
For Appellants : Mr.D.Venkatesh
For Respondent : Mr.D.Nallathambi
JUDGMENT
This second appeal has been filed challenging the concurrent
findings of the Courts below. The appellants are the defendants in the
suit. The respondent is the plaintiff in the suit. The suit in O.S.No.75 of
2009 was filed by the plaintiff before the District Munsif Court,
Tiruchendur, seeking for declaration and mandatory injunction.
Declaratory relief sought for by the plaintiff is in respect of a water
channel adjoining the appellants / defendants' property. The said water
channel runs from east to west and is connected to the main water
channel running from north to south. The plaintiff, by virtue of a sale
deed of the year 1952 as well as another sale deed of the year 2009,
which have been marked as Exs.A3 and A8 respectively before the trial
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S.A.(MD)No.272 of 2018
Court claims ownership of the disputed water channel. Based on the
aforesaid sale deeds, declaratory relief as well as the relief of mandatory
injunction has been sought. The appellants / defendants are neighboring
land owners of the respondent / plaintiff. The plaintiff claims that the
appellants / defendants are interfering with their peaceful possession and
enjoyment of the water channel.
2. However, as seen from the written statement filed by the
appellants / defendants, they contended that there is no water channel as
claimed by the respondent / plaintiff. They have also claimed that as per
the parent document of the respondent / plaintiff, namely, the sale deed of
the year 1952 (Ex.A3), there is no reference to any water channel and
therefore, the respondent / plaintiff cannot claim that there is a water
channel as alleged in the plaint. It is also contended by the appellants /
defendants that since the parent document of the year 1952 does not refer
to any water channel, subsequent document of the year 2009 (Ex.A8)
cannot be relied upon by the respondent / plaintiff, though the said sale
deed refers to a water channel as the said vendor did not have the title
over the disputed property, namely, water channel.
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S.A.(MD)No.272 of 2018
3. Before the trial Court, on the side of the respondent / plaintiff,
14 documents were filed and they were marked as Exs.A1 to A14. Three
witnesses were also examined on his side, namely, P.W.1 to P.W.3. A
subpoena was also taken to examine the Government Surveyor by the
plaintiff and the Government surveyor, namely Kanthasamy was
examined as P.W.3. The surveyor has also filed six documents pertaining
to the suit schedule property, which were marked as Exs.X1 to X6 as
Court documents.
4. On the side of the appellants / defendants, four documents were
filed, which were marked as Exs.B1 to B4 which included the sale deed
standing in the name of the appellants / defendants as well as the patta
and property tax receipt. On the side of the appellants / defendants, only
one witness was examined, namely, Alagesan, first appellant as D.W.1.
5. Ex.A1 sale deed standing in the name of the respondent /
plaintiff reveals that there is a water channel as claimed by the
respondent / plaintiff in the suit. The Government surveyor (P.W.3) in his
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S.A.(MD)No.272 of 2018
deposition has also deposed that there is a water channel as claimed by
the respondent / plaintiff. The Court exhibits namely Exs.X1 to X6 also
reveal that there is a water channel, though the appellants / defendants
would contend that the parent document of the plaintiff / respondent
namely, sale deed of the year 1952 did not disclose that there is a water
channel in the suit schedule property.
6. Except examining one witness on the side of the appellants /
defendants, namely the first appellant (D.W.1), no other witness was
examined on the side of the appellants / defendants to disprove the
contention of the respondent / plaintiff. As seen from Ex.A8 and the
Court exhibits, namely, Exs.X1 to X6, there is a water channel belonging
to the respondent / plaintiff adjoining the appellant / defendants' property.
7. The trial Court, after giving due consideration to the oral and
documentary evidence, produced by the respective parties, has come to
the right conclusion observing that the respondent / plaintiff has
discharged his burden by producing oral and documentary evidence to
prove that there is a water channel belonging to him, which runs from
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S.A.(MD)No.272 of 2018
east to west as claimed in the plaint, which is being used by the
respondent / plaintiff. Accordingly, the suit was decreed as prayed for by
the respondent / plaintiff in the suit by granting the declaratory relief as
well as mandatory injunction to restore the water channel, which has
been destroyed by the appellants / defendants.
8. Admittedly, no counter claim has been made by the appellants /
defendants to seek for a declaration to declare the sale deed of the year
2009 standing in the name of the respondent / plaintiff (Ex.A8), which
discloses water channel as null and void. The appellants / defendants
have also not disputed the Court exhibits namely, Exs.X1 to X6 as seen
from their deposition through D.W.1.
9. Even though the appellants / defendants have stated in para 10
of the written statement filed by the appellants / defendants, that the sale
deed of the year 2009 (Ex.A8) standing in the name of the respondent /
plaintiff is a forged document, they have not let in any oral and
documentary evidence to substantiate the said contention before the trial
Court. Therefore, this Court is of the considered view that the trial Court,
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S.A.(MD)No.272 of 2018
only after giving due consideration to the oral and documentary evidence
available on record has rightly decreed the suit in favour of the
respondent / plaintiff.
10. The lower appellate Court, namely the Sub Court, Tiruchendur,
in A.S.No.161 of 2017, by its judgment and decree dated 10.10.2017 has
also confirmed the findings of the trial Court by dismissing the first
appeal filed by the appellants / defendants. The substantial questions of
law raised by the appellants / defendants in the grounds of this Second
Appeal are all factual issues, which have been correctly considered by
the Courts below by giving findings in favour of the respondent /
plaintiff. There are no debatable questions of fact or law involved, which
require consideration by this Court under Section 100 of C.P.C. There is
no perversity in the findings of the Courts below. Accordingly, this
Second Appeal is dismissed. There shall be no order as to costs.
Consequently, connected Miscellaneous Petition is closed.
23.03.2023
Index : Yes / No
NCC : Yes / No
Sm
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.272 of 2018
ABDUL QUDDHOSE, J.
Sm
TO:
1.The Sub Court, Tiruchendur.
2.The District Munsif Court, Tiruchendur.
3.The Section Officer,
VR Section, Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.272 of 2018
Dated:
23.03.2023
https://www.mhc.tn.gov.in/judis
