E. Sundarraj vs E. Mahalingam

P.R. Shivakumar, J.

This civil revision arises out of a judgment and decree of the learned Additional District Judge, Fast Track Court No. IV, Ponneri dated 06.04.2011 made in C.M.A. No. 7 of 2007 setting aside the order of the trial Court, namely the Court of District Munsif, Ponneri dated 18.06.2007 made in I.A. No. 783 of 2007 in O.S. No. 172 of 2007 on the file of the said trial Court.

The suit has been filed by the revision petitioner against the respondent, who is none other than his own brother, for a permanent injunction restraining the respondent/defendant from in any manner depriving the revision petitioner/plaintiff from irrigating his lands, the properties prescribed in plaint "A" schedule by lifting water from the borewell sunk in Old S.No. 262, New S.No. 497/18 fitted with 7.5 HB Electric Motor pumpset with Electricity Service Connection bearing Old No. 36:1104:79, New No. 81.06.27. Pending disposal of the suit, the revision petitioner prayed for an interim injunction similar to the permanent injunction sought for in the suit by filing an application in I.A. No. 783 of 2007 under Order XXXIX Rule 1 and 2 CPC.

After enquiry, the learned trial Judge holding that a prima facie case was made out by the revision petitioner herein/plaintiff and that the balance of convenience also was in his favour, granted in the interim injunction by the impugned order dated 18.06.2007. Challenging the said order, the respondent herein/defendant filed an appeal in C.M.A. No. 7 of 2007 on the file of the lower appellate Court. The learned Additional District Judge, Fast Track No. IV, Ponneri allowed the appeal, set aside the order of the trial Court and dismissed the injunction application, namely I.A. No. 783 of 2007 in O.S. No. 172 of 2007 on the file of the trial Court. As against the decreetal order of the lower appellate Court dated 06.04.2011 made in C.M.A. No. 7 of 2007, the present revision has been filed invoking the power of superintendence of this Court under Article 227 of the Constitution of India.

The arguments advanced by Mr.B.Gandhi, learned counsel for the petitioner and by Mr.K.Jayaraman, learned counsel for the respondent are heard. The copies of the orders of the Courts below and the other materials produced in the form of typed-set of papers are also perused and taken into consideration.

A brief narration of facts leading to the filing of the revision shall be of immense help to understand the scope of the dispute and the scope of the revision. An extent of 12.42 acres of land comprised in Old S.No. 261 in Jeganadhapuram, Ponneri Taluk, Tiruvallur District belonged to one Elumalai as his self-acquired property. He had got three sons and three daughters. The revision petitioner and the respondent are two of the three sons of Elumalai. The third son is no more and he had left behind him his wife and a son. On 26.08.2002, the said Elumalai intending to settle the said properties equally among his sons and daughters including the legal heirs of the pre- deceased son, executed a registered settlement deed bearing Document No. 2493 of 2002 registered in the office of the Sub-Registrar, Ponneri. Under the said settlement deed, he settled 2.07 acres on each one of his sons and daughters and on the legal heirs of his deceased son. While settling the said property comprised in S.No. 261, he referred to a borewell he had sunk in the adjacent Grama Natham land comprised in S.No. 262 New G.R.S. No. 497/80 which was in his occupation and 7.5 HP Electric Motor pumpset fitted therein for the purpose of irrigation of his agricultural lands. Provisions had also been made in the settlement deed for passage for the sharers to reach their respective portions. The right in the borewell and the electric motor pumpset was settled on the settlees equally so as to confer equal rights on each one of the sons and daughters of the settlor and the remaining 1/6th share on the legal heirs of the deceased son of the settlor. The extent of Grama Natham land referred in the settlement deed dated 26.08.2002 comprised in S.No. 262 New G.R.S. No. 497/80 is admittedly 34 cents. Subsequent to the settlement, the said Elumalai, who claimed to be the absolute owner of the Grama Natham land, executed a sale deed in respect of 15 A 1/4 cents out of 34 cents in favour of one Palani and settled the rest of the extent (18 A 3/4 cents) under a settlement deed dated 01.06.2007 registered as Document No. 3679 of 2007 in the office of the Sub-Registrar, Arani in favour of the revision petitioner / plaintiff. A well is said to have been dug in the said portion settled on him by the settlor himself before the settlement. The present dispute is not concerning the property allegedly settled on the revision petitioner/plaintiff under Document No. 3679 of 2007 dated 01.06.2007. We are concerned only with the property settled on 26.08.2002 on the revision petitioner/plaintiff, viz., the undivided share in the borewell and the electric motor pumpset fitted in the borewell sunk in the Grama Natham land comprised in old S.No. 262 New G.R.S. No. 497/80. Even regarding the agricultural land settled on the revision petitioner/plaintiff under the said settlement deed dated 26.08.2002, there is no dispute between the parties. The dispute concerns with regard to the right claimed by the revision petitioner/plaintiff, to lift water for irrigating his agricultural land which he got under the above said settlement deed, from the borewell which has been mentioned in the settlement deed dated 26.08.2002.

According to the revision petitioner/plaintiff, he got the undivided right of two of his sisters in the borewell and electric motor pumpset leased out to him and thus, at present he is entitled to 3/6th share in the borewell and the electric motor pumpset. However, the respondent/defendant would contend that the right that is claimed by the revision petitioner/plaintiff is in respect of a separate borewell sunk by the respondent/defendant in the Grama Natham land with the permission of his father and that therefore, the claim of the revision petitioner /plaintiff is bound to be negatived. According to the respondent/defendant, the father did not sink borewell in the grama natham land bearing old S.No. 262 New G.R.S. No. 497/80 and on the other hand, he dug only a big Well with the dimensions with 35 feet depth and 14 feet diameter; that petitioner, respondent, their brothers and sisters and the legal heirs of the deceased brother are co-owners of the said well; that a 7 HP electric pump set installed in the said well alone had been installed by the father of the parties, namely Elumalai and that without restricting his claim to the said common well, the revision petitioner/plaintiff wants to stake a claim in the separate borewell of the respondent/defendant. It is the further contention of the respondent/defendant that the description of the property into "A" and "B" schedules is not proper and on that score alone, the revision petitioner/plaintiff has to be non-suited for the reliefs sought for by him.

At the outset, it shall be quite clear that in the interlocutory stage no final adjudication of the rights of the parties can be aimed at and on the other hand, interim arrangements are to be made to protect the interest of the parties pending adjudication of the main issue in the suit. The question of granting or refusing interim relief shall be based on the answer to the questions: 1) whether the party claiming interim relief does have a prima facie case; and 2) whether the balance of convenience lies in his favour? Having a clear conception of the scope of consideration at the stage of disposal of the interlocutory application seeking interim injunction pending disposal of the suit, the trial Court seems to have referred to the documents and held that the revision petitioner herein/plaintiff did have a prima facie case that he got undivided 1/6th share in the borewell sunk by Elumalai in the Grama Natham land bearing old S.No. 262 New G.R.S. No. 497/80. The learned trial Judge, accepted the contention of the petitioner/plaintiff that he has got the undivided shares of two of his sisters in the said borewell leased out to him.

Of course, the petitioner / plaintiff has got a document which is unregistered. But, whether it requires registration has got to be considered only in the trial. Without adducing evidence regarding the lease amount if any, we cannot now come to a conclusion that an unregistered document for the lease of the undivided share in the well and pumpset shall be inadmissible. The learned trial Judge has rightly relegated the question to be decided at the time of trial. Even otherwise, the undivided share of the two sisters who are said to have leased out their right in the borewell and electric motor pumpset cannot be denied by the respondent/defendant. Under the settlement deed dated 26.08.2002, like the petitioner/plaintiff, the respondent/defendant also got only an undivided 1/6th share in the borewell and the electric motor pumpset fitted in it. Having accepted the settlement in respect of the property comprised in old S.No. 261, he cannot disown the other part of the settlement, namely settlement of undivided 1/6th share in the borewell and electric motor pumpset fitted therein and contend that the entire borewell belongs to him as he alone dug the borewell with the permission of the father, namely the settlee under the above said settlement deed.

The next contention of the respondent/defendant is that there was no borewell in existence at the time of execution of the settlement deed dated 26.08.2002 and only a Well which has been referred to in the settlement deed dated 01.06.2007, was in existence. The above said contention seems to be quite contrary to the recitals found in both the settlement deeds. Hence, the trial Court, with a clear vision, came to the conclusion that the petitioner/plaintiff did have a prima facie case that he got an undivided 1/6th share in the borewell sunk in old S.No. 262 New G.R.S. No. 497/80, grama natham land. It has also come to a prima facie conclusion that the shares of two of his sisters were also leased out to him and hence, he was entitled to 3/6th share in the borewell. As against such an establishment of a prima facie case by the petitioner/plaintiff, the respondent/defendant''s contention that there was no borewell in existence in which undivided share could have been conferred on the petitioner/plaintiff under the settlement deed dated 26.08.2002 prima facie seems to be against the recitals of the said settlement deed, which has also been accepted and acted upon by the respondent/defendant. Therefore, this Court is of the considered view that the well reasoned finding of the trial Court regarding the establishment of a prima facie case by the petitioner/plaintiff was unnecessarily and unjustifiably interfered with by the lower appellate Court.

The Well referred to as the common Well by the respondent/defendant seems to have been claimed by Elumalai as his separate well in which no one else including the respondent/defendant did have any right whatsoever and the same was sought to be settled on the petitioner/plaintiff absolutely under the settlement deed dated 01.06.2007. Therefore, the contention of the respondent/defendant that there is a common well does not stand established prima facie.

Coming to the question of balance of convenience, the claim of the petitioner/plaintiff is that, he having been conferred with undivided 1/6th share and having got the lease of 2/6th share of two of his sisters, he has become entitled to 3/6th share in all. It is his further contention that he having become entitled to 3/6th share in the borewell and electric motor pumpset fitted therein which stood in the name of the father Elumalai, he is entitled to lift water continuously for 15 days and the other sharers should be left to take their shares in the succeeding 15 days. So far as the enjoyment of the undivided share in the borewell and electric motor pumpset is concerned, what has been recognized under the settlement deed is the right of the undivided shares and there has been no consensus regarding how the shares are to be enjoyed. In short, no turn system has been recognized either in the settlement deed or by a separate agreement between the parties. That being so, it shall be unethical and unjustifiable on the part of the revision petitioner/plaintiff to claim that he shall be entitled to lift water from the borewell continuously for 15 days. While coming to the conclusion that the balance of convenience shall be in favour of the petitioner/plaintiff for fixing a turn system pending disposal of the suit, this Court comes to the conclusion that the claim of the petitioner/plaintiff that he should be allowed to lift water continuously for 15 days has got to be discountenanced. The rights of the parties can be very well adjusted by prescribing the following time schedule for lifting water for the purpose of irrigation of their respective lands:

"The petitioner/plaintiff shall be entitled to lift water for one day. The respondent/defendant shall be entitled to lift water for one day. Similarly, other sharers having 1/6th share shall be entitled to lift water for one day alone in turn. In case of division of 1/6th share, those persons have to adjust themselves the turn of day assigned to them. Such a modification of the order of the trial Court shall subserve the interest of justice. Such arrangement shall be followed till the final disposal of the suit. "

For all the reasons stated above, this Court comes to the conclusion that the judgment and decree of the lower appellate Court dated 06.04.2011 made in C.M.A. No. 7 of 2007 setting aside the order of the trial Court dated 18.06.2007 made in I.A. No. 783 of 2007 in O.S. No. 172 of 2007 in entirety is bound to be interfered with and set aside. At the same time, the order of the trial Court shall be modified as indicated above.

In the result, the Civil Revision Petition is allowed in part and the judgment and decree of the lower appellate Court dated 06.04.2011 made in C.M.A. No. 7 of 2007 is set aside and the order of the trial Court dated 18.06.2007 made in I.A. No. 783 of 2007 in O.S. No. 172 of 2007 is modified by prescribing the time schedule as indicated above.