BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/10/2006 CORAM : THE HONOURABLE MR. JUSTICE S.TAMILVANAN Second Appeal No. 586 of 1994, Second Appeal No. 587 of 1994 S.A.No.586 of 1994 1. Kanniappan 2. Subramanian 3. Dhanam ... Appellants Vs. 1. Dharmalingam 2. Velayutham 3. Rasu ... Respondents
S.A.No.587 of 1994
Subramanian … Appellant
Vs.
Velayutham … Respondent
Prayer in S.A.No.586 of 1994 : Second Appeal is filed against the Common
Judgment and Decree, dated 18.08.1993 made in A.S.No.127 of 1989, on the file
of the Subordinate Judge, Karur confirming the Judgment and Decree, dated
28.04.1989 made in O.S.No.449 of 1987 on the file of the District Munsif,
Kulithalai.
Prayer in S.A.No.587 of 1994 : Second Appeal is filed against the Common
Judgment and Decree, dated 18.08.1993 made in A.S.No.147 of 1989 on the file of
the Subordinate Judge, Karur confirming the Judgment and Decree, dated
28.04.1989 made in O.S.No.327 of 1987 on the file of the District Munsif,
Kulithalai.
!For Appellants .. Mr.K.Govindarajan for M/s. Saravanbhauman Associates ^For Respondents .. Ms. P.Bagyalakshmi :COMMON JUDGMENT
S.A.No.586 of 1994 was directed against the common Judgment and the
Decree, dated 18.08.1993 made in A.S.No.127 of 1989 on the file of the
Subordinate Judge, Karur confirming the Judgment and Decree, dated 28.04.1989
made in O.S.No.449 of 1987 on the file of the District Munsif, Kulithalai.
2. The Appellants 1, 3 and 4 in the S.A.No.586 of 1994 are the plaintiffs
1, 3 and 4 in the suit, filed against the Respondents 1 and 2 herein, seeking
declaration of title, permanent injunction and also for mandatory injunction. In
this Second Appeal, since the second plaintiff did not join with the appellants,
he has been arrayed as third respondent.
3. S.A.No.587 of 1994 was directed against the common Judgment and the
Decree, dated 18.08.1993 made in A.S.No.147 of 1989 confirming the Judgment and
Decree, dated 28.04.1989 made in O.S.No.327 of 1987 on the file of the District
Munsif, Kulithalai.
4. The second plaintiff Velayutham in S.A.No.586 of 1994 is the plaintiff
in the suit in O.S.No.327 of 1987 and he filed the suit for permanent injunction
against Subramanian, the second appellant in the aforesaid Second Appeal. As
both the suits were interrelated, they were jointly tried before the Trial Court
and a common Judgment was passed by the Trial Court. Though separate appeals
were preferred, the first appellate court made a common Judgment, aggrieved by
the Judgment and Decree, this Second Appeals have been preferred. Considering
the facts and circumstances of the Second Appeals after hearing both sides,
Common Judgment is rendered.
5. The brief facts of both the cases are as follows :
In this common Judgment, for the sake of convenience, the parties
are being referred as appellants or respondents, as per the Second Appeal in
S.A.No.586 of 1994, in both appeals. The earlier suit in O.S.No.327 of 1987 on
the file of the District Munsif Court, Kulithalai was filed by Velayutham, the
second respondent against Subramanian, the second appellant herein seeking
permanent injunction, restraining him from interfering with the peaceful
possession and enjoyment of the suit property by the plaintiff. The subsequent
suit in O.S.No.449 of 1987 was filed before the trial court by the appellants
and the third respondent herein against the respondents 1 and 2 herein, for
declaration, permanent injunction and mandatory injunction. The trial court by
the aforesaid common judgment had decreed the suit in O.S.No.327 of 1997 and
dismissed the suit filed in O.S.No.449 of 1987 and in the appeal, the first
appellate court was pleased to confirm the common Judgment and Decree of the
trial court and thereby dismissed both the appeals, against which these Second
Appeals have been preferred.
6. These Second Appeals have been admitted on the following Substantial
Question of Law :
” Whether the courts below are correct in law in coming to the conclusion
that Ex.A2 UDR patta is conclusive proof of title to the lands covered
thereunder overlooking the fact that under Ex.A1, sale deed all the parties who
have purchased the lands have been given only a common interest on the western
corner on which the suit AD Channel is claimed by the appellants ? ”
7. On a perusal of the common Judgment and the evidence available on
record, it is seen that both the parties have admitted the relationship that the
first appellant Kaniappan, the first respondent Dharmalingam and the second
respondent Velayutham are brothers. The third appellant Dhanam is the daughter
of the first appellant and the second appellant Subramanian is the husband of
the third appellant. The parties have admitted the relationship stated in the
Plaint.
8. It has been further admitted by both parties, that on 24.03.1972, as
per Ex.A1, the first appellant Kanniappan, his brothers Dharmalingam and
Velayutham, respondents 1 and 2 herein and Rasu, the third respondent, son of
Poivasi, the deceased brother of the first appellant and respondents 1 and 2,
had jointly purchased 4 acres of land in S.No.9/2 of the suit village from one
Annapooraniammal.
9. The total extent of land in S.No.9/2 was 18 acres 36 cents and the land
purchased by the aforesaid persons was in 2 plots, one 3 acre 42 cents and
another 58 cents. The said 58 cents of land was subsequently sold by the first
appellant and the respondents 1 to 3 herein by sale deed Ex.B1, dated
15.03.1975. to the third appellant Dhanam. The second appellant Subramanian had
also purchased one acre of land with specific four boundaries in S.No.9/2, out
of the said 18.36 acres from Annapooraniammal. The aforesaid facts are not in
dispute.
10. According to the respondents 1 and 2, namely Dharmalingam and
Velayutham, after the purchase of the property under Ex.A1, dated 24.03.1972,
the first appellant and the respondents enjoyed the same in common, by
cultivating punja crops for about 2 years. After the 58 cents of land was sold
in favour of the third appellant, for the sake of convenient enjoyment, nearly
13 years prior to the date of filing the suit, they partitioned the aforesaid 3
acres and 42 cents by dividing the land in to four plots and as per the oral
partition, the southern plot was allotted to the share of the third respondent
Rasu and the immediate northern plot was allotted to the first appellant
Kanniappan and next immediate northern plot were allotted to the first and
second respondents respectively and the land on the south of the suit property
was independently purchased by the second defendant. Thereafter, the first
respondent Dharmalingam and the first appellant and the respondents 1 to 3 are
separately enjoying their respective properties and also paying kists and UDR
patta was also issued in the individual names of the aforesaid first appellant
and the respondents. In the suit filed in O.S.No. 327 of 1987, the second
respondent Velayutham, as plaintiff had sought for injunction restraining the
second appellant Subramanian, from interfering with the peaceful possession and
enjoyment of the property, by making any channel course on the western portion
of his land.
11. An Advocate Commissioner was appointed to inspect the suit property,
and after inspecting the property, the Commissioner filed his report. As per
Commissioner’s Report and Plan, Exs.C1 and C2, there was no channel course
available across the lands of the respondents 1 and 2 to irrigate the land
belongs to the second appellant and that the second appellant’s land on the
north was also found higher in level comparatively than the other lands on the
southern side.
12. The vital point for determination in both the Second Appeals, apart
from the substantial question of law is whether the second appellant Subramanian
is entitled to have water course in the lands belong to the respondent 1 and 2.
The second respondent, who was examined as P.W.1 has stated in his evidence that
only punja land were jointly purchased by himself and his two brothers and the
third respondent, son of his another brother under Ex.A1 and that the suit well
on the southern side available between the lands of the first appellant and the
third respondent was dug nearly 5 or 6 years subsequent to the purchase of the
land by the first and second appellant and the third respondent. Neither the
first respondent, nor the second respondent has any right in the aforesaid well
and that the well water was used only for the irrigation of the lands belong to
the first appellant and the third respondent on the southern side and was never
taken to the second appellant’s land through the land belongs to the respondents
1 and 2. The first appellant, who was examined as D.W.1 has admitted in his
evidence that the 7 r cents of land, in which the suit well located was
purchased only by himself, his son-in-law, the second appellant and the third
respondent, under Ex.B3. As per the sale deed, Ex.B3, dated 10.12.1976, the
first appellant Kanniappan, third respondent Rasu and the second appellant
Subramainan had purchased the land in S.No.9/2, where the well was dug, out of
the aforesaid 18.36 acres of land. Admittedly, in the sale deed, Ex.A1, the suit
well has not been stated. The first appellant, who was examined as D.W.1 before
the trial court, has also admitted the fact in his evidence that the respondents
1 and 2 have no right in the well to irrigate their lands. Further, the
aforesaid 7 r cents of land, where the well located was purchased only by
appellants 1 and 2 and the third respondent, subsequently, under Ex.B3, only in
the year 1976. Therefore, admittedly, the well was not meant for irrigating the
lands purchased under Ex.A1.
13. The trial court as well as the first appellate court have held that
the second appellant is not entitled to irrigate his land from the well water,
through the lands belong to the respondents 1 and 2. As per the findings of the
court below, the lands belong to respondents 1 and 2 are comparatively lower in
level than the second appellant’s land on the north. Therefore, the well water
could not have been taken to the said land belongs to the second appellant.
14. The learned counsel appearing for the appellants would contend that
the oral partition alleged by the respondents 1 and 2 could not be accepted,
since Ex.A2, UDR Patta is not a conclusive proof of title, but he has not
disputed the fact that under the sale deed, Ex.A1, the first appellant and the
respondents 1 to 3 alone purchased the lands jointly and the property purchased
by the second appellant is not covered under Ex.A.1.
15. It is a settled proposition of law that patta is not a document of
title, but in order to prove oral partition and separate possession and
enjoyment of his share of property purchased under Ex.A1, the second respondent
has adduced oral evidence and also produced UDR Patta issued in his name, which
was marked as Ex.A2 and the sketch, Ex.A3, and the kist receipts issued in his
name were marked as Ex.A4 and Ex.A5.
16. As contended by the learned counsel for the respondents 1 and 2, had
there been no partition and the enjoyment of the property in common was not
convenient, the first appellant could have filed only a suit for partition and
separate possession. According to the learned counsel for the respondents 1 and
2, the first appellant and the third respondent are irrigating their lands
directly from the well, available in the land, they jointly purchased and there
is no necessity for them to irrigate their share of land, through the lands
belong to the respondents 1 and 2 and the suit in O.S.No.449 of 1987 was filed
by the first appellant along with the appellants 2 and 3, who are nothing to do
with the sale deed, Ex.A1, only with the view to create a new irrigation channel
right in favour of his son-in-law, the second appellant herein, though, he is a
stranger to the property and the said claim was not legally sustainable.
17. The second appellant, who was examined as D.W.2 has admitted in his
evidence that the first appellant alone had informed him about the channel right
for his property and that he did not know anything about the same. He has
further stated that he purchased the well in the year 1976 and in the
intervening period, he had cultivated only punja crops in the land purchased by
him. As admitted by the first appellant, after the purchase of 4 acres of land
in the year 1972, by himself and the respondents 1 to 3 under Ex.A1, they
jointly cultivated crops which are suitable for dry lands, since there was no
irrigation facility for the land. He has also admitted that for about 2 years,
the land was left without any cultivation . Subsequently, the land was divided
and enjoyed by the first appellant and the respondents 1 to 3 as four plots and
the same is not in dispute. He has stated that no action was taken by him to get
the property partitioned, since 1972. It is not in dispute that the second
appellant purchased one acre of land under Ex.B2, on the northern side of the
property belongs to the first appellant and the respondents 1 to 3. As the
property purchased by the appellant and respondents 1 to 3 was admittedly a dry
land, there could be no channel and that the property purchased by the second
appellant is some other property on the north from the same vendor.
18. Therefore, the claim of the first appellant, that there was a channel
course in the land belong to the respondents 1 and 2 on the west and that was
obliterated two months prior to the suit filed by the second respondent cannot
be accepted. Though the appellants have filed Exs.B1 to B10, the said documents
are not relevant to establish any right of water channel to the second
appellants land on the northern side. It is seen from the evidence adduced by
both sides and also the findings of the courts below, that the first appellant
has nothing to do with the channel right claimed in the property belongs to the
respondents 1 and 2, since he has direct channel course to irrigate his land
from the well purchased by him along with the second appellant and the third
respondent under Ex.B3, dated 10.12.1976. Similarly, the third respondent, whose
land is on the southern extremity, need not irrigated his land, through the
lands belong to the respondents 1 and 2 and hence, the third respondent claims
no right of irrigation through the lands of the respondents 1 and 2. Therefore,
it is clear that the suit in O.S.No.449 of 1987 was filed only for the purpose
of claiming irrigation right to the second appellant, who is a third party to
Ex.A1, merely, he is the son-in-law of the first appellant, through the lands
belongs to the respondent 1 and 2. As admitted by the appellants 1 and 2 in
their evidence, when the lands under Ex.A1 was purchased by the first appellant
and the respondents 1 to 3, the well shown on the southern side, was not
purchased under Ex.B3, as source of irrigation to the lands under Ex.A1, and the
property purchased by the second appellant under Ex.B2 is admittedly a different
property purchased from the same vendor Annapooraniammal.
19. According to the learned counsel for the respondents, since the second
appellant is the son-in-law of the first appellant, though he had purchased some
other property on the northern under Ex.B2 and also subsequently, the well under
Ex.B3 on 10.12.1976 along with the first appellant and the third respondent
herein, the first appellant filed the suit in O.S.No.449 of 1987, with
unsustainable claim of irrigation right for the second appellant. As contended
by the learned counsel for the respondents 1 and 2, it is not in dispute that
the second and third appellants are the son-in-law and daughter respectively of
the first appellant, but they are strangers to the sale deed, Ex.A1. As per the
suit filed by the appellants herein, right of channel course for the second
appellant’s land is claimed, in the lands of respondent 1 and 2, which is
neither an easement by grant, nor a right otherwise. No legal right has been
established by the second appellant to take water to his land, through the lands
belongs to the respondents 1 and 2.
20. Admittedly, the first appellant and the respondents 1 to 3 had
purchased their land under Ex.A1 on 24.03.1972. Subsequently, as admitted by the
first appellant who examined himself as D.W.1, the property was divided into
four plots, and being enjoyed according to their convenience, by cultivating
crops suitable for dry lands. Exs.A2 to A4 would clearly show that the second
respondent, was given UDR patta and also paying kists continuously in his own
name, based on his possession and enjoyment. It is also not in dispute that the
first appellant and the respondents 2 and 3 are also enjoying their respective
plots separately and paying kists and also got separate patta in their names,
based on their possession and enjoyment. Admittedly, no suit for partition was
filed by the first appellant or the third respondent, after the same was
purchased in the year 1972. Therefore, as contended by the respondents 1 and 2,
the first appellant cannot claim any irrigation right in favour of the second
appellant, merely because, he is his son-in-law. Even the third respondent, who
was stated as one of the plaintiffs, in the suit in O.S.No.449 of 1987, did not
support the case of the appellants herein, hence, he was subsequently arrayed as
third respondent in this appeal. Considering the facts and circumstances, the
court below have given a concurrent finding and thereby, dismissed the suit
filed by the appellants in O.S.No.449 of 1987, relating to the second appeal in
S.A.No.586 of 1994 and decreed the suit filed by the second respondent /
Velayutham, against the second appellant Subramanian in O.S.No.327 of 1987,
relating to S.A.No.587 of 1994.
21. On the evidence available on record, I am of the view that UDR patta
Ex.A2, though not a document of title, but it is a corroborative evidence. The
oral and documentary evidence adduced by both sides in this case would clearly
establish that there was oral partition between the first appellant and the
respondents 1 to 3 and accordingly, they are enjoying their respective shares,
as their own property and therefore, even the first appellant did not file any
suit for partition, though the property under Ex.A1 was purchased in the year
1972, jointly by them. The other documents marked as Exs. A1 to A4 would clearly
establish that based on the partition, the second respondent has got title to
his property and the same is in his possession and enjoyment and therefore, it
cannot be construed that the court below, overlooking the fact available under
the sale deed, Ex.A1, has decided everything contrary to the evidence available
on record. Even if there was no partition, as contended by the first appellant,
between himself and the respondents 1 to 3, in respect of the property purchased
under Ex.A1, the second appellant, who is a stranger to Ex.A1, cannot claim any
right of water course on that ground, through the lands which are in the
possession and enjoyment of the respondents 1 and 2. Therefore, the oral
partition disputed by the first appellant has no relevancy in this second appeal
and which would not improve the case in favour of the second appellant.
Therefore, I am of the view to answer the Substantial Question of Law framed in
both the second appeals in favour of the respondents and against the appellants.
22. In the result, confirming the Judgment and Decree passed by the courts
below, both the Second Appeals are dismissed. However, considering the
relationship of the parties, there is no order as to costs.
tsvn
To
1. The Subordinate Judge
Karur.
2. The District Munsif
Kulithalai.