JUDGMENT
A. Ramamurthi. J.
1. The defendant in O.S.99 of 1991 on the file of District Munsif Court, Manapparai has preferred the present second appeal aggrieved against the judgment and decree made in A.S.No.201 of 1992 on the file of I Additional Sub Court, Trichy dated 26.03.1993 reversing the judgment and decree of the trial court dated 31.07.1992.
2. The case in brief is as follows:- The plaintiff filed a suit for permanent injunction. The suit property belong to the joint family of the plaintiff and the plaintiff has been in possession and enjoyment of the same and paying all taxes and charges. He had effected improvements in the suit property at enormous cost. The defendant is a stranger to the suit property and he cannot claim any interest. The defendant owns land adjacent to the suit property. On 29.03.1991 the defendant attempted to channelise water from his well through the suit channel and it was resisted by the plaintiff. The suit property and the defendant’s property are separate entities. Further, the suit properties are not servient heritage so as to be imposed with qualified right in favour of the defendant. The defendant is persisting in his act and, hence, the suit.
3. The defendant denied the exclusive right of the plaintiff relating to the suit property. The defendant has got right to take water through the suit channel since he also owns land adjacent and in between the suit channel. From the common well, both of them have been taking water through the suit channel. The defendant is also a joint owner along with the plaintiff in the properties and, as such, the plaintiff is not entitled to claim the relief of permanent injunction. There is no cause of action for the plaintiff to file the suit and apart from the channel, the defendant is not claiming any other in the land of the plaintiff.
4. The trial court framed 4 issues and on behalf of the plaintiff, he was examined as P.W.1 and Exs.A-1 to A-13 were marked. On behalf of the defendant, D.Ws.1 to 3 were examined and Exs.B-1 to B-6 were marked. The report and plan filed by the Commissioner were marked as Exs.C-1 to C-3. The trial court dismissed the suit and aggrieved against this, the plaintiff preferred A.S.201 of 1992 on the file of Sub Court, Trichy. The learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit. Aggrieved against this, the defendant has come forward with the present second appeal.
5. At the time of admission of the second appeal, the following substantial questions of law were framed by this Court for consideration:
(1)Whether the lower appellate court is correct in holding that the right to use the channel by the defendant has been extinguished in the absence of any plea to that effect by the plaintiff ?
(2)Whether the lower appellate court has erred in not exercising its jurisdiction properly as it fails to consider certain vital admission made by the plaintiff that the channel also passes through the defendant’s land also ?
6. The plaintiff filed the suit simplicitor claiming the relief of permanent injunction restraining the defendant and his men from interfering with the plaintiff’s peaceful possession and enjoyment of the suit properties. The suit properties relate to S.F.No.293/2B, 294/2B, 294/2E, 294/2C and 295/2B/2. There was already partition 30 years ago between the father of the plaintiff and the defendant and in the oral partition, the suit properties fell to the share of the plaintiff’s branch. Admittedly, the property of the defendant is also adjacent. It is the specific case of the plaintiff that there is a mamool channel running in the land of the plaintiff shown as A B C D E F in the Commissioner’s plan. There was already a common well belonging to both parties and each of them are entitled to draw water from the well and to irrigate their lands respectively through this mamool channel. Now, the plaintiff would contend that 25 years prior to the filing of the suit, there was no water in the common well and it was not used. On the other hand, it has come out in the evidence that the defendant had dug up a well at point ‘A’ in the Commissioner’s plan and similarly, the plaintiff had also put up a bore well and taking water through a pipeline laid underneath the ground. Now, the plaintiff would contend that whatever right available to the defendant to use the mamool channel gets extinguished because it was not used for a period of nearly 25 years. Under the circumstance, the defendant is not entitled to take water from his separate well through the mamool channel to irrigate his other lands.
7. The trial court dismissed the suit filed by the plaintiff, whereas the lower appellate court reversed the same and gave a decree in favour of the plaintiff. Learned counsel for the appellant / defendant contended that the lower appellate court failed to note that the appellant is using the channel to irrigate his lands even on the date of filing of the suit. In the absence of any pleading in the plaint that the right to use the channel leading from the Ayacut well had been extinguished. The lower appellate court erred in relying on the evidence of P.W.1 that the right to use the well had been extinguished. Having admitted that the common well in 293D belongs to the plaintiff and the defendant, the lower appellate court erred in holding that the defendant is not entitled to use the channel leading from the old well. It also failed to note that A B C D E F channel passes through 294 2F which admittedly belongs to the defendant / appellant. The channel also is jointly owned by plaintiff and defendant and the plaintiff cannot claim any exclusive right over the same. The lower appellate court also erred in granting the relief of injunction mainly on the basis of absence of proof of easementary right as pleaded by the defendant. Further more, the substantial question of law raised by the defendant is whether the right to use the channel by himself has been extinguished in the absence of any prayer for the relief of declaration in the plaint. The lower appellate court erred in not exercising its jurisdiction properly as it fails to consider certain vital admission made by the plaintiff that the channel also passes through the land of the defendant.
8. The oral evidence as well as the documents filed by the parties would clearly indicate that the plaintiff has not come to court with clean hands. When the defendant is related to P.W.1 and they were having right to take water from the common well through the mamool channel, there should be sufficient pleading as to how and in what manner the right if any available to the defendant gets extinguished. There is no such pleading in the plaint. Apart from that, the common well is also fitted with a motor pumpset and it has come out in evidence that both of them share the consumption charges. The defendant had also filed number of receipts for payment of electricity charges. A Commissioner was also appointed and he had inspected the property and submitted plans and report and moreover, he was also examined as one of the witnesses in the case. Perusal of the report indicates that according to him, there was no water in the common well and water could not have been taken for several years from this well. His report and plans indicate that a separate well was put up by the defendant at point ‘A’ and similarly another bore well was also put up by the plaintiff adjacent to the same. The Commissioner further stated that the water from the well ‘A’ is taken through the channel marked as A B C D E F in the plan, relating to the mamool channel. No doubt, the plaintiff had filed objection in respect of the report. As adverted to, when there is no water in the common well for a period of 25 years and at the same time the defendant had put up a separate well even 10 years back, there should be some other channel if the defendant is not taking water through the mamool channel. The report filed by the Commissioner indicates that this is the only channel available for the parties for taking water from the private well of the defendant. It is quite possible that when there was no water in the common well even 25 years back, each of them could have decided to put up a separate well and take water through the suit channel. The plaintiff had also not come forward with any declaration that he alone is entitled to the suit channel excluding others. When the defendant had denied the exclusive right of the plaintiff in the channel at the earliest point of time, the plaintiff, if advised, could have amended the relief as one for declaration and should have established his exclusive right. The absence of any such step on the part of the plaintiff would only indicate that the plaintiff has not put forth the actual state of affairs.
9. P.W.1 in the chief examination admitted that for the last 25 years, the common well is not used. D.W.1 in the chief examination stated that the suit channel is existing even from the time of partition and through which only, he and his predecessors-in-interest have been taking water. He further stated that the suit channel is running through several survey numbers belonging to the plaintiff as well as the defendant. He categorically denied that the suit channel runs only in the land of the plaintiff; but unfortunately, the lower appellate court without any basis came to the conclusion as if the suit channel is running in the separate property of the plaintiff. It is because of this misconception only, the lower appellate court granted a decree in favour of the plaintiff. S.F.No.294/2F belonged to the defendant and it is seen from the plans that the suit channel is also running in the said survey number. This is one circumstance to show the case of the plaintiff that the suit channel exclusively runs only in his property falls to the ground. D.W.2 is the Advocate Commissioner and he has stated that A B C D channel is the old channel. Now, the plaintiff had laid pipeline underneath the ground and taking water to his land. D.W.3, an independent witness also stated that during the dry period only, the plaintiff and the defendant would be taking water from their respective well through the suit channel. According to him, for the last 40 years both of them irrigate accordingly. There is no reason to discard the testimony of D.W.3; but unfortunately the lower appellate court has failed to consider the independent testimony of D.W.3 which resulted in miscarriage of justice.
10. The appellant / defendant had taken a consistent stand that for a very long time, they were taking water through the suit channel only and according to him, both of them are joint owners. This being so, the plaintiff being one of the joint owners is not entitled to get any relief of injunction against the defendant. The burden is only upon the plaintiff to establish that the suit channel exclusively belonged to him. Apart from the self serving testimony of P.W.1, no other independent witness was examined on the side of the plaintiff. The observation of the lower appellate court in para 9 as if the appellant admitted that the suit channel exclusively belongs to the plaintiff is not based on any legal evidence. The appellant also stated that his land as well as the land of the plaintiff are intermittently situated, wherein the suit channel is running thereby indicating that in one place, it runs through the land of the plaintiff and again enters into the land of the defendant. Even assuming that water can be taken through the common channel only from the Ayacut well, considering the fact that for the last 25 years it was not put to any use and at the same time, separate well was put up by either party and they have been taking water, it can be easily concluded that excepting the suit channel, there is no other channel for the purpose of irrigating their respective lands.
11. Learned counsel for the appellant relied on the decision reported in S.VENKAPPA ..vs.. RANGU that it is well settled that the decision of a case cannot be based on grounds outside the plea of the parties, and that it is the case pleaded which has to be found. This decision is applicable to the case on hand and in the absence of any pleading on the part of the plaintiff, I am of the view that the suit as framed is also not maintainable.
12. Reliance is also placed on BUDHWANTI ..vs.. GULAB CHAND PRASAD as follows: ” It is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its rights insetting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding”.
This decision is also applicable to the case on hand.
13. It is, therefore, clear from the aforesaid discussion and decisions that the lower appellate court had misdirected itself and without any legal evidence, came to the conclusion as if the appellant had accepted the suit channel exclusively belongs to the plaintiff. Moreover, when the appellant had disputed the exclusive right of the plaintiff in the suit channel even in the written statement, the only remedy available to the plaintiff is to amend the plaint as one for declaration and it has not been done in the case. The evidence of D.W.3 had been completely left unconsidered by the lower appellate court, which resulted in miscarriage of justice and, as such, interference is called for.
14. For the reasons stated above, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored. However, there will be no order as to costs. Consequently, CMP No.11138 of 1993 is closed.