C.Ravikumar & Anr. vs Dhanalakshmi

The S.A.Nos.793 of 2003 and 794 of 2003 are directed against the common judgment and decree dated 31.07.2000 passed in A.S.Nos.99 of

1999 and 100 of 1999 on the file of the Principal District Court, Salem, confirming the common judgment and decree dated 26.03.1999 passed in

O.S.Nos.599 of 1992 and 647 of 1992 on the file of the Second Additional District Munsif Court, Salem.

O.S.No.599 of 1992 has been laid for declaration and permanent injunction. Similarly, O.S.No.647 of 1992 has been laid for declaration and

permanent injunction.

The case of the appellants in brief is that the suit property belongs to the appellants by way of a registered partition deed dated 09.09.1986

executed amongst the appellants and their paternal uncles, sisters and mother and by way of the said partition deed, the suit property was allotted

to them as item number 7 in the ""B"" schedule property and originally the suit property was purchased by one P.Appavoo, by way of a registered

sale deed dated 20.06.1983 executed by one Padakathudayar and others and thereafter the suit property was jointly enjoyed along with other

family properties and accordingly, by way of the partition deed above stated, the appellants were allotted the suit property along with other

properties and it is only the appellants, who had been in possession and enjoyment of the suit property exercising full ownership over the same and

the respondent claims to have purchased the adjacent property in survey number 8/3B1 on the south of the suit property and the respondent

instituted the suit against the appellants in O.S.No.599 of 1992 claiming a false right of channel for taking drainage water through the suit property

and thereby attempted to lay the channel in the suit property and in this connection, the appellants preferred the complaint with the police and the

parties were referred to civil action and the respondent has no right to take the drainage water through the suit property and however, the

respondent is attempting to interfere with the appellants'' right to the possession and enjoyment of the suit property illegally and hence the

appellants are constrained to lay the suit for appropriate reliefs.

Per contra, it is the case of the respondent, after denying the case of the appellants as above claimed in toto, alleged that she is the absolute

owner of the suit properties and other properties by virtue of a registered sale deed dated 09.03.1992 and in possession and enjoyment of the

same and the provision had been given to the respondent to take drainage water from the Sago factory situated in sruvey number 8/3B1 through

the vaikkal existing north-south 3 feet breadth, east-west 500 feet length, at the south of the appellants'' lands, east of well and north of survey

number 8/3 B1 to reach Kolathukombai Eri porambok situated in survey number 128/1 and accordingly, the respondent is enjoying the said

vaikkal and prior to the same, the respondent''s vendor was enjoying the same from time immemorial and the appellants attempted to purchase the

property belonging to the respondent, but failed and thereby started interfering with her possession and right to enjoy in taking the drainage water

through the vaikaal situated in the suit property and hence the respondent had been necessitated to lay the suit for appropriate reliefs against the

appellants in O.S.No.599 of 1992 and hence, prayed for the dismissal of the suit laid by the appellants and the decreeing of the suit preferred by

her.

Inasmuch as, both O.S.Nos.599 of 1992 and 647 of 1992 were in respect of the same subject matter and between the same parties, the above

suits were jointly tried and accordingly common evidence was recorded in O.S.No.599 of 1992 for both the suits and accordingly, in support of

the respondent''s case, P.Ws.1 to 4 were examined and Exs.A1 to A3 were marked and on the side of the appellants, D.Ws.1 to 3 were

examined and Exs.B1 to B4 were marked. Exs.C1 and C2 were also marked. On a consideration of the oral and documentary evidence adduced

by the respective parties and the submissions made, the Courts below were pleased to dismiss the suit filed by the appellants in O.S.No.647 of

1992 and decreed the suit as prayed for levelled by the respondent in O.S.No.599 of 1992. Aggrieved over the same, the present second appeals

have come to be laid.

At the time of admission of the second appeals, the following substantial question of law was formulated for consideration.

Whether the Courts below are justified in granting decree in favour of the plaintiff on the ground of easementary right in the absence of any

pleading or evidence placed before the Court?

The respondent claims title to the property described and also the subject matter of the suit involved in O.S.No.599 of 1992 by way of the sale

deed dated 09.03.1992 marked as Ex.A1. The appellants claim title to the property described in O.S.No.647 of 1992 by way of the partition

deed dated 09.09.1986 and the sale deed dated 20.06.1986 marked as Exs.B1 and B2. The description of the property described in

O.S.No.647 of 1992 would go to show that the appellants seek title to the property situated in survey number 8/3A measuring acres 2.22 UDR

patta number 53, dry hectares 0.90.0 with a well with 3HP electric motor pump set with service connection number 77. A perusal of the

documents marked as Exs.B1 and B2 in toto and cumulatively would go to show that the appellants have acquired title to the above said property

and it is further seen that the respondent as such is not disputing the title of the appellants as regards the above said property is concerned. The

issue between the parties is only as regards the entitlement of the respondent in taking the drainage water through the vaikkal existing south of the

appellants'' lands and according to the respondent, she had been granted the said right, by way of the sale deed dated 09.03.1992 marked as

Ex.A1 and the said right had been exercised from the days of her predecessors in title from time immemorial and the said vaikkal is the only source

available for draining the drainage water from the Sago factory situated in her property in survey number 8/3B1.

Accordingly, it is found that as rightly determined by the Courts below, on a perusal of the recitals found in Ex.A1 sale deed would go to show

that the respondent had been conferred the right to take the drainage water from the Sago factory situated in survey number 8/3B1 through the

vaikkal for letting in the said water at Kolathukombai Eri Porambok in survey number 128/1. Accordingly, it is seen that as rightly determined by

Courts below, particularly, the first appellate court, the respondent is only seeking the right of easement to drain the drainage water from the Sago

Unit and does not claim any proprietary right with reference to the same and it is further seen that the drainage water from the Sago factory passes

through the 3 feet width channel running east-west 50 feet lying at the west of the well and the said right had been exercised by the respondent

from the days of her predecessors in interest for more than 50 years. It is therefore seen that only by way of easementy right the respondent is

seeking the reliefs sought for in her suit. Accordingly, even the appellants as well as the witnesses examined on their behalf, had admitted that the

channel runs for several years and the channel originally belonged to Velayutham and the same is the only channel which runs from the Sago Unit to

the Kuttai Poramboke. Therefore, it is further seen that the Courts below had also based on the evidence adduced by the respondent through her

witnesses namely, D.Ws.2 and 3 found that the respondent had been taking the water through the said channel to drain the water of the Sago Unit

over a long period of time. The above position is also buttressed by the report and plan of the Advocate Commissioner marked as Exs.C1 and C2

and considering the fact that the above said easementary right is attached to the property acquired by the respondent by way of her sale deed,

accordingly, the respondent is entitled to drain the drainage water to the Kuttai through the said channel and therefore the first appellate court

correctly determined that the respondent has got easementary right over the subject matter of O.S.No.599 of 1992 i.e., the channel and in such

view of the matter, the above determination of the issues involved between the parties centering on factual aspects, at the stage of second appeal,

the same do not warrant any interference, since the determination of the issues revolving around the same has been correctly arrived at by the

Courts below in the proper perceptive of the materials placed on record.

However, it is contended by the counsel for the appellants that in so far as the suit property involved in O.S.No.647 of 1992 laid by the

appellants, inasmuch as the respondent has not thrown any the challenge to the entitlement of the same by the appellants, it is contended that the

Courts below had erred in not granting the relief of declaration sought for by the appellants with reference to the same. The above contention

seems acceptable. So far as the property involved in O.S.No.647 of 1992 is concerned, the respondent has not impugned the title of the

appellants with reference to the same. Accordingly, it is seen that the Courts below should have granted the relief of declaration in favour of the

appellants as for as the said property is concerned. To that extent, it is found that the Courts below had failed in not granting the appropriate relief

in favour of the appellants. In other aspects, as above seen the Courts below had properly appreciated the materials on record and granted the

appropriate reliefs in favour of the respondent.

In the light of the above discussions made above, the Courts below are justified in granting the decree as prayed for, in favour of the

respondent on the ground of easementary right, particularly, when the pleadings and materials placed on record, point to the entitlement of the said

right in favour of the respondent. The Courts below had erred in not granting the relief of declaration sought for by the appellants, in so far as the

suit property comprised in O.S.No.647 of 1992 is concerned and accordingly, it is determined that the appellants are entitled to obtain the relief of

declaration as regards the said property. The substantial questions of law formulated in the second appeal are accordingly answered.

In conclusion, (a) the judgment and decree dated 31.07.2000 passed in A.S.No.99 of 1999 on the file of the Principal District Court, Salem

confirming the judgment and decree dated 26.03.1999 passed in O.S.No.99 of 1992 on the file of the District Munsif Court, Salem are confirmed

and resultantly, the S.A.No.793 of 2003 is dismissed.

(b)the Judgment and decree dated 31.07.2000 passed in A.S.No.100 of 1999 on the file of the Principal District Court, Salem confirming the

judgment and decree dated 26.03.1999 passed in O.S.No.647 of 1992 are partially set aside and the appellants are granted the relief of

declaration as prayed for in O.S.No.647 of 1992 and in other aspects, the judgment and decree of the Courts below above stated are confirmed.

Accordingly, the S.A.No.794 of 2003 is partly allowed.

Considering the facts and circumstances of the case, there is no order as to costs. Consequently, connected miscellaneous petition, if any, is

closed.