{"id":92106,"date":"2006-10-27T00:00:00","date_gmt":"2006-10-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kanniappan-vs-dharmalingam-on-27-october-2006"},"modified":"2014-12-27T16:06:08","modified_gmt":"2014-12-27T10:36:08","slug":"kanniappan-vs-dharmalingam-on-27-october-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kanniappan-vs-dharmalingam-on-27-october-2006","title":{"rendered":"Kanniappan vs Dharmalingam on 27 October, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Kanniappan vs Dharmalingam on 27 October, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 27\/10\/2006\n\n\nCORAM :\nTHE HONOURABLE MR. JUSTICE S.TAMILVANAN\n\n\nSecond Appeal No. 586 of 1994,\nSecond Appeal No. 587 of 1994\n\nS.A.No.586 of 1994\n\n1. Kanniappan\n2. Subramanian\t\t\t\n3. Dhanam\t\t\t... \tAppellants\n\n\nVs.\n\n\n1. Dharmalingam\n2. Velayutham\t\t\t\n3. Rasu\t\t \t\t...\tRespondents<\/pre>\n
S.A.No.587 of 1994<\/p>\n
Subramanian\t\t\t…\tAppellant<\/p>\n
Vs.\n<\/p>\n
Velayutham\t\t      \t…\tRespondent<\/p>\n
Prayer in S.A.No.586 of 1994 : Second Appeal is filed against the Common
\nJudgment and Decree, dated 18.08.1993  made in A.S.No.127 of 1989, on the file
\nof the Subordinate Judge, Karur confirming the Judgment and Decree, dated
\n28.04.1989 made in O.S.No.449 of 1987 on the file of the District Munsif,
\nKulithalai.\n<\/p>\n
Prayer in S.A.No.587 of 1994 : Second Appeal is filed against the Common
\nJudgment and Decree, dated 18.08.1993 made in A.S.No.147 of 1989  on the file of
\nthe Subordinate Judge, Karur confirming the Judgment and Decree, dated
\n28.04.1989 made in O.S.No.327 of 1987 on the file of the District Munsif,
\nKulithalai.<\/p>\n
\n\n\n!For Appellants\t\t..\tMr.K.Govindarajan for\n\t\t\t  \tM\/s. Saravanbhauman Associates\n\n^For Respondents     \t..\tMs. P.Bagyalakshmi\n\n\n:COMMON JUDGMENT\n\n\n<\/pre>\n
\tS.A.No.586 of 1994 was directed against the common Judgment and the
\nDecree, dated 18.08.1993 made in A.S.No.127 of 1989 on the file of the
\nSubordinate Judge, Karur confirming the Judgment and Decree, dated 28.04.1989
\nmade in O.S.No.449 of 1987 on the file of the District Munsif, Kulithalai.\n<\/p>\n
\t2. The Appellants 1, 3 and 4 in the S.A.No.586 of 1994 are the plaintiffs
\n1, 3 and 4 in the suit, filed against the Respondents 1 and 2 herein, seeking
\ndeclaration of title, permanent injunction and also for mandatory injunction. In
\nthis Second Appeal, since the second plaintiff did not join with the appellants,
\nhe has been arrayed as third respondent.\n<\/p>\n
\t3. S.A.No.587 of 1994 was directed against the common Judgment and the
\nDecree, dated 18.08.1993 made in A.S.No.147 of 1989 confirming the Judgment and
\nDecree, dated 28.04.1989 made in O.S.No.327 of 1987 on the file of the District
\nMunsif, Kulithalai.\n<\/p>\n
\t4. The second plaintiff Velayutham in S.A.No.586 of 1994 is the plaintiff
\nin the suit in O.S.No.327 of 1987 and he filed the suit for permanent injunction
\nagainst Subramanian, the second appellant in the aforesaid Second Appeal. As
\nboth the suits were interrelated, they were jointly tried before the Trial Court
\nand a common Judgment was passed by the Trial Court. Though separate appeals
\nwere preferred, the first appellate court made a common Judgment, aggrieved by
\nthe Judgment and Decree, this Second Appeals have been preferred. Considering
\nthe facts and circumstances of the Second Appeals after hearing both sides,
\nCommon Judgment is rendered.\n<\/p>\n
\t5. The brief facts of both the cases are as follows :\n<\/p>\n
\t\tIn this common Judgment, for the sake of convenience, the parties
\nare being referred as appellants or respondents, as per the Second Appeal in
\nS.A.No.586 of 1994, in both appeals. The earlier suit in O.S.No.327 of 1987 on
\nthe file of the District Munsif Court, Kulithalai was filed by Velayutham, the
\nsecond respondent against Subramanian, the second appellant herein seeking
\npermanent injunction, restraining him from interfering with the peaceful
\npossession and enjoyment of the suit property by the plaintiff. The subsequent
\nsuit in O.S.No.449 of 1987 was filed before the trial court by the appellants
\nand the third respondent herein against the respondents 1 and 2 herein, for
\ndeclaration, permanent injunction and mandatory injunction. The trial court by
\nthe aforesaid common judgment had decreed the suit in O.S.No.327 of 1997 and
\ndismissed the suit filed in O.S.No.449 of 1987 and in the appeal, the first
\nappellate court was pleased to confirm the common Judgment and Decree of the
\ntrial court and thereby dismissed both the appeals, against which these Second
\nAppeals have been preferred.\n<\/p>\n
\t6. These Second Appeals have been admitted on the following Substantial
\nQuestion of Law :\n<\/p>\n
\t ” Whether the courts below are correct in law in coming to the conclusion
\nthat Ex.A2 UDR patta is conclusive proof of title to the lands covered
\nthereunder overlooking the fact that under Ex.A1, sale deed all the parties who
\nhave purchased the lands have been given only a common interest on the western
\ncorner on which the suit AD Channel is claimed by the appellants ? ”\n<\/p>\n
\t7. On a perusal of the common Judgment and the evidence available on
\nrecord, it is seen that both the parties have admitted the relationship that the
\nfirst appellant Kaniappan, the first respondent Dharmalingam and the second
\nrespondent Velayutham are brothers. The third appellant Dhanam is the daughter
\nof the first appellant and the second appellant Subramanian is the husband of
\nthe third appellant. The parties have admitted the relationship stated in the
\nPlaint.\n<\/p>\n
\t8. It has been further admitted by both parties, that on 24.03.1972, as
\nper Ex.A1, the first appellant Kanniappan, his brothers Dharmalingam and
\nVelayutham, respondents 1 and 2 herein and Rasu, the third respondent, son of
\nPoivasi, the deceased brother of the first appellant and respondents 1 and 2,
\nhad jointly purchased 4 acres of land in S.No.9\/2 of the suit village from one
\nAnnapooraniammal.\n<\/p>\n
\t9. The total extent of land in S.No.9\/2 was 18 acres 36 cents and the land
\npurchased by the aforesaid persons was in 2 plots, one 3 acre 42 cents and
\nanother 58 cents. The said 58 cents of land was subsequently sold by the first
\nappellant and the respondents 1 to 3 herein by sale deed Ex.B1, dated
\n15.03.1975. to the third appellant Dhanam. The second appellant Subramanian had
\nalso purchased one acre of land with specific four boundaries in S.No.9\/2, out
\nof the said 18.36 acres from Annapooraniammal. The aforesaid facts are not in
\ndispute.\n<\/p>\n
\t10. According to the respondents 1 and 2, namely Dharmalingam and
\nVelayutham, after the purchase of the property under Ex.A1, dated 24.03.1972,
\nthe first appellant and the respondents enjoyed the same in common, by
\ncultivating punja crops for about 2 years. After the 58 cents of land was sold
\nin favour of the third appellant, for the sake of convenient enjoyment, nearly
\n13 years prior to the date of filing the suit,  they partitioned the aforesaid 3
\nacres and 42 cents by dividing the land in to four plots and as per the oral
\npartition, the southern plot was allotted to the share of the third respondent
\nRasu and the immediate northern plot was allotted to the first appellant
\nKanniappan and next immediate northern plot were allotted to the first and
\nsecond respondents respectively and the land on the south of the suit property
\nwas independently purchased by the second defendant. Thereafter, the first
\nrespondent Dharmalingam and the first appellant and the respondents 1 to 3 are
\nseparately enjoying their respective properties and also paying kists and UDR
\npatta was also issued in the individual names of the aforesaid first appellant
\nand the respondents. In the suit filed in O.S.No. 327 of 1987, the second
\nrespondent Velayutham, as plaintiff had sought for injunction restraining the
\nsecond appellant Subramanian, from interfering with the peaceful possession and
\nenjoyment of the property, by making any channel course on the western portion
\nof his land.\n<\/p>\n
\t11. An Advocate Commissioner was appointed to inspect the suit property,
\nand after inspecting the property, the Commissioner filed his report. As per
\nCommissioner’s Report and Plan, Exs.C1 and C2, there was no channel course
\navailable across the lands of the respondents 1 and 2 to irrigate the land
\nbelongs to the second appellant and that the second appellant’s land on the
\nnorth was also found higher in level comparatively than the other lands on the
\nsouthern side.\n<\/p>\n
\t12. The vital point for determination in both the Second Appeals, apart
\nfrom the substantial question of law is whether the second appellant Subramanian
\nis entitled to have water course in the lands belong to the respondent 1 and 2.
\nThe second respondent, who was examined as P.W.1 has stated in his evidence that
\nonly punja land were jointly purchased by himself and his two brothers and the
\nthird respondent, son of his another brother under Ex.A1 and that the suit well
\non the southern side available between the lands of the first appellant and the
\nthird respondent was dug nearly 5 or 6 years subsequent to the purchase of the
\nland by the first and second appellant and the third respondent. Neither  the
\nfirst respondent, nor the second respondent has any right in the aforesaid well
\nand that the well water was used only for the irrigation of the lands belong to
\nthe first appellant and the third respondent on the southern side and was never
\ntaken to the second appellant’s land through the land belongs to the respondents
\n1 and 2. The first appellant, who was examined as D.W.1 has admitted in his
\nevidence that the 7 r cents of land, in  which the suit well located was
\npurchased only by himself, his son-in-law, the second appellant and the third
\nrespondent, under Ex.B3. As per the sale deed, Ex.B3, dated 10.12.1976, the
\nfirst appellant Kanniappan, third respondent Rasu and the second appellant
\nSubramainan had purchased the land in S.No.9\/2, where the well was dug, out of
\nthe aforesaid 18.36 acres of land. Admittedly, in the sale deed, Ex.A1, the suit
\nwell has not been stated. The first appellant, who was examined as D.W.1 before
\nthe trial court, has also admitted the fact in his evidence that the respondents
\n1 and 2 have no right in the well to irrigate their lands. Further, the
\naforesaid 7 r  cents of land, where the well located was purchased only by
\nappellants 1 and 2 and the third respondent, subsequently, under Ex.B3, only in
\nthe year 1976. Therefore, admittedly, the well was not meant for irrigating the
\nlands purchased under Ex.A1.\n<\/p>\n
\t13. The trial court as well as the first appellate court have held that
\nthe second appellant is not entitled to irrigate his land from the well water,
\nthrough the lands belong to the respondents 1 and 2. As per the findings of the
\ncourt below, the lands belong to respondents 1 and 2 are comparatively lower in
\nlevel than the second appellant’s land on the north. Therefore, the well water
\ncould not have been taken to the said land belongs to the second appellant.\n<\/p>\n
\t14. The learned counsel appearing for the appellants would contend that
\nthe oral partition alleged by the respondents 1 and 2 could not be accepted,
\nsince Ex.A2, UDR Patta is not a conclusive proof of title, but he has not
\ndisputed  the fact that under the sale deed, Ex.A1, the first appellant and the
\nrespondents 1 to 3 alone purchased the lands jointly and the property purchased
\nby the second appellant is not covered under Ex.A.1.\n<\/p>\n
\t15. It is a settled proposition of law that patta is not a document of
\ntitle, but in order to prove  oral partition and separate possession and
\nenjoyment of his share of property purchased under Ex.A1, the second respondent
\nhas adduced oral evidence and also produced UDR Patta issued in his name, which
\nwas marked as Ex.A2 and the sketch, Ex.A3, and the kist receipts issued in his
\nname were marked as Ex.A4 and Ex.A5.\n<\/p>\n
\t16. As contended by the learned counsel for the respondents 1 and 2, had
\nthere been no partition and the enjoyment of the property in common was not
\nconvenient, the first appellant could have filed only a suit for partition and
\nseparate possession. According to the learned counsel for the respondents 1 and
\n2, the first appellant and the third respondent are irrigating their lands
\ndirectly from the well, available in the land, they jointly purchased and there
\nis no necessity for them to irrigate their share of land, through the lands
\nbelong to the respondents 1 and 2 and the suit in O.S.No.449 of 1987 was filed
\nby the first appellant along with the appellants 2 and 3, who are nothing to do
\nwith the sale deed, Ex.A1, only with the view to create a new irrigation channel
\nright in favour of his son-in-law, the second appellant herein, though, he is a
\nstranger to the property and the said claim was not legally sustainable.\n<\/p>\n
\t17. The second appellant, who was examined as D.W.2 has admitted in his
\nevidence that the first appellant alone had informed him about the channel right
\nfor his property and that he did not know anything about the same. He has
\nfurther stated that he purchased the well in the year 1976 and in the
\nintervening period, he had cultivated only punja crops in the land purchased by
\nhim. As admitted by the first appellant, after the purchase of 4 acres of land
\nin the year 1972, by himself and the respondents 1 to 3 under Ex.A1, they
\njointly cultivated  crops which are suitable for dry lands, since there was no
\nirrigation facility for the land. He has also admitted that for  about 2 years,
\nthe land was left without any cultivation . Subsequently, the land was divided
\nand enjoyed by the first appellant and the respondents 1 to 3 as four plots and
\nthe same is not in dispute. He has stated that no action was taken by him to get
\nthe property partitioned, since 1972. It is not in dispute that the second
\nappellant purchased one acre of land under Ex.B2, on the northern side of the
\nproperty belongs to the first appellant and the respondents 1 to 3. As the
\nproperty purchased by the appellant and respondents 1 to 3 was admittedly a dry
\nland, there could be no channel and that the property purchased by the second
\nappellant is some other property on the north from the same vendor.\n<\/p>\n
\t18. Therefore, the claim of the first appellant, that there was a channel
\ncourse in the land belong to the respondents 1 and 2 on the west and that was
\nobliterated two months prior to the suit filed by the second respondent cannot
\nbe accepted. Though the appellants have filed Exs.B1 to B10, the said documents
\nare not relevant to establish any right of water channel to the second
\nappellants land on the northern side. It is seen from the evidence adduced by
\nboth sides and also the findings of the courts below, that the first appellant
\nhas nothing to do with the channel right claimed in the property belongs to the
\nrespondents 1 and 2, since he has direct channel course to irrigate his land
\nfrom the well purchased by him along with the second appellant and the third
\nrespondent under Ex.B3, dated 10.12.1976. Similarly, the third respondent, whose
\nland is on the southern extremity, need not irrigated his land, through the
\nlands belong to the respondents 1 and 2 and hence, the third respondent claims
\nno right of irrigation through the lands of the respondents 1 and 2. Therefore,
\nit is clear that the suit in O.S.No.449 of 1987 was filed only for the purpose
\nof claiming irrigation right to the second appellant, who is a third party to
\nEx.A1, merely, he is the son-in-law of the first appellant, through the lands
\nbelongs to the respondent 1 and 2. As admitted by the appellants 1 and 2 in
\ntheir evidence,  when the lands under Ex.A1 was purchased by the first appellant
\nand the respondents 1 to 3, the well shown on the southern side, was not
\npurchased under Ex.B3, as source of irrigation to the lands under Ex.A1, and the
\nproperty purchased by the second appellant under Ex.B2 is admittedly a different
\nproperty purchased from the same vendor Annapooraniammal.\n<\/p>\n
\t19. According to the learned counsel for the respondents, since the second
\nappellant is the son-in-law of the first appellant, though he had purchased some
\nother property on the northern under Ex.B2 and also subsequently, the well under
\nEx.B3 on 10.12.1976 along with the first appellant and the third respondent
\nherein, the first appellant filed the suit in O.S.No.449 of 1987, with
\nunsustainable claim of irrigation right for the second appellant. As contended
\nby the learned counsel for the respondents 1 and 2, it is not in dispute that
\nthe second and third appellants are the son-in-law and daughter respectively of
\nthe first appellant, but they are strangers to the sale deed, Ex.A1. As per the
\nsuit filed by the appellants herein, right of channel course for the second
\nappellant’s land is claimed, in the lands of respondent 1 and 2, which is
\nneither an easement by grant, nor a right otherwise. No legal right has been
\nestablished by the second appellant to take water to his land, through the lands
\nbelongs to the respondents 1 and 2.\n<\/p>\n
\t20. Admittedly, the first appellant and the respondents 1 to 3 had
\npurchased their land under Ex.A1 on 24.03.1972. Subsequently, as admitted by the
\nfirst appellant who examined himself as D.W.1, the property was divided into
\nfour plots, and being enjoyed according to their convenience, by cultivating
\ncrops suitable for dry lands. Exs.A2 to A4 would clearly show that the second
\nrespondent, was given UDR patta and also paying kists continuously in his own
\nname, based on his possession and enjoyment. It is also not in dispute that the
\nfirst appellant and the respondents  2 and 3 are also enjoying their respective
\nplots separately and paying kists and also got separate patta in their names,
\nbased on their possession and enjoyment. Admittedly, no suit for partition was
\nfiled by the first appellant or the third respondent, after the same was
\npurchased in the year 1972. Therefore, as contended by the respondents 1 and 2,
\nthe first appellant cannot claim any irrigation right in favour of the second
\nappellant, merely because, he is his son-in-law.  Even the third respondent, who
\nwas stated as one of the plaintiffs, in the suit in O.S.No.449 of 1987, did not
\nsupport the case of the appellants herein, hence, he was subsequently arrayed as
\nthird respondent in this appeal. Considering the facts and circumstances, the
\ncourt below have given a concurrent finding and thereby, dismissed the suit
\nfiled by the appellants in O.S.No.449 of 1987, relating to the second appeal in
\nS.A.No.586 of 1994  and decreed the suit filed by the second respondent \/
\nVelayutham, against the second appellant Subramanian in O.S.No.327 of 1987,
\nrelating to S.A.No.587 of 1994.\n<\/p>\n
\t21. On the evidence available on record, I am of the view that  UDR patta
\nEx.A2, though not a document of title, but it is a corroborative evidence. The
\noral and documentary evidence adduced by both sides in this case would clearly
\nestablish that there was oral partition between the first appellant and the
\nrespondents 1 to 3 and accordingly, they are enjoying their respective shares,
\nas their own property and therefore, even the first appellant did not file any
\nsuit for partition, though the property under Ex.A1 was purchased in the year
\n1972, jointly by them. The other documents marked as Exs. A1 to A4 would clearly
\nestablish that based on the partition, the second respondent has got title to
\nhis property and the same is in his possession and enjoyment and therefore, it
\ncannot be construed that the court below, overlooking the fact available under
\nthe sale deed, Ex.A1, has decided everything contrary to the evidence available
\non record. Even if there was no partition, as contended by the first appellant,
\nbetween himself and the respondents 1 to 3, in respect of the property purchased
\nunder Ex.A1, the second appellant, who is a stranger to Ex.A1, cannot claim any
\nright of water course on that ground, through the lands which are in the
\npossession and enjoyment of the respondents 1 and 2. Therefore, the oral
\npartition disputed by the first appellant has no relevancy in this second appeal
\nand which would not improve the case in favour of the second appellant.
\nTherefore, I am of the view to answer the Substantial Question of Law framed in
\nboth the second appeals in favour of the respondents and against the appellants.\n<\/p>\n
\t22. In the result, confirming the Judgment and Decree passed by the courts
\nbelow, both the Second Appeals are dismissed. However, considering the
\nrelationship of the parties, there is no order as to costs.\n<\/p>\n
tsvn<\/p>\n
To<\/p>\n
1. The Subordinate Judge
\n    Karur.\n<\/p>\n
2. The District Munsif
\n    Kulithalai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Kanniappan vs Dharmalingam on 27 October, 2006 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-92106","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKanniappan vs Dharmalingam on 27 October, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kanniappan-vs-dharmalingam-on-27-october-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kanniappan vs Dharmalingam on 27 October, 2006 - 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