Kanakaraj vs Lakshmanan

G. Rajasuria, J.—This second appeal is focussed by the unsuccessful plaintiff, animadverting upon the judgment and decree dated

30.12.2004 passed by the learned Principal Subordinate Judge, Thiruvannamalai in A.S. No. 126 of 1997 confirming the judgment and decree

dated 16.10.1997 passed by the learned Additional District Munsif No. I, Thiruvannamalai. The parties are referred to here under according to

their litigative status and ranking before the trial Court.

A summation and summarisation of the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:

a) The plaintiff filed the suit seeking the following reliefs:

- To pass a judgment and decree in his favour

- declaring plaintiff''s title to the schedule mentioned property;

- granting an order of permanent injunction restraining the defendant, his men, agents, servants from interfering in the plaintiff''s enjoyment of 1/3 rd

share in the schedule mentioned electric service connection No. 11 to the schedule mentioned property;

- directing the defendant to pay the cost of the suit.

(extracted as such)

on the main ground that the plaintiff acquired title over the three items of properties found described in the schedule of the plaint and also 1/3 rd

share in the electric service connection No. 11 the motor pump set concerned and according to him the defendant, who happens to be one of the

co-owners of the well and the said electric policy and motor pump set attempted to prevent the plaintiff from exercising his right as set out supra.

Hence the suit.

b) The defendant filed the written statement denying and refuting the allegations/averments in the plaint.

Precisely the case of the defendant is to the effect that the plaintiff''s title to the property as claimed in the plaint is not in controversy. However,

having purchased 1/3 rd share in the motor pump set and in the electric service connection No. 11, so as to draw water from the common well, the

plaintiff attempted to irrigate lands, which he did not purchase from his vendor. According to the defendant, the suit should be dismissed.

c) Whereupon issues were framed.

d) Up went the trial, wherein the plaintiff examined himself as P.W. 1 along with P.W. 2 and marked Exhibits A1 to A12. The defendant examined

himself as D.W. 1 and marked Exhibit B-1.

e) Ultimately the trial Court decreed the suit as under:

(extracted as such)

Precisely, the trial Court declared the title of the plaintiff over the suit properties; but granted permanent injunction so as to enable the plaintiff to

irrigate his 331/2 cents of land in first item of the suit properties by drawing water from the common well making use of the said motor pump set.

f) Being aggrieved by and dissatisfied with such rejection of the part of the prayer for permanent injunction, the plaintiff filed the appeal, for nothing

but to be dismissed by the first appellate Court confirming the judgment and decree of the trial Court.

Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed by the plaintiff on various

grounds suggesting the substantial questions of law.

My learned predecessor at the time of admitting the second appeal, framed the following substantial questions of law.

Whether the Courts below were right in restricting in the usage of electricity service connection in the common well by one co-owner namely the

plaintiff/appellant when it has been held that he is entitled to 1/3rd right in the said service connection to take water for irrigation of lands in the

same ayacut?

Whether the Courts below are justified in rejecting the claim of the plaintiff/appellant to use the electricity service connection to his portion of the

properties within the allotted l/3rd time so long as the same will not affect the respondent adversely, more especially when the plaintiff''s l/3rd right

in the service connection and the usage of water from the well are declared in his favour?

Whether the Courts below are justified in rejecting the plaintiff''s claim for using the common electricity service connection in respect of all his

properties in the same ayacut when his 1/3rd right in the said connection was confirmed and declared by the Courts below?

(extracted as such)

Heard both sides.

All these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other.

The learned (sic). for the appellant/plaintiff would argue that the plaintiff purchased 1/3 rd share in the motor pump set and in the electricity

service connection No. 11 for pumping of water from the common well. It is not as though the plaintiff is the owner of only an extent of 331/2

cents of land in Survey No. 83/5E; but in the original partition he got shares as found set out in the three suit items of the properties. Simply

because, he acquired l/3rd right in 3 HP Motor Pump set and the electricity service connection No. 11, that it does not mean that he should by

using that motor pump set and electricity supply could irrigate only his 331/2 cents, which he purchased from his vendor.

Whereas the learned counsel for the respondent/defendant would submit that the scope of the suit is not relating to the plaintiff''s right to get

irrigated his three items of the properties described in the schedule of the plaint, which he got in the original partition; but the issue involved in this

case is as to whether by acquiring 1/3rd right in the 3 HP Motor pump set having electricity service connection No. 11, the plaintiff can make use

of that device for irrigating his all the three items of the suit properties found described in the schedule of the plaint. His vendor himself had no such

right while selling his 1/3rd share in favour of the plaintiff and in such a case, the plaintiff who stepped into the shoes of his vendor cannot have

anything more. Accordingly, both the Courts below decided the lis, warranting no interference in this second appeal.

I would like to fumigate my mind with the following decisions of the Hon''ble Apex Court:

(i) Hero Vinoth (minor) Vs. Seshammal,

(ii) Kashmir Singh v. Harnam Singh and Another 2008 (4) SCALE (sic)

(iii) State Bank of India and Others v. S.N. Goyal 2009-1-L.W. 1

(iv) Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, certain excerpts from it would run thus:

It is manifest from a bare reading of the Section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial

question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is

mandatory that such question(s) must be formulated. The expression ""substantial question of law"" is not defined in the act. Nevertheless, it has

acquired a definite connotation through various judicial pronoucements.

A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving

at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or

legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.

Trite the proposition of law is that as against the concurrent findings of fact, there may not be any interference in second appeal but in exceptional

circumstances, the High Court is not niggard and bereft of powers to interfere with perverse finding of facts emerged out of misreading of the

evidence and wrong applications of law relating to evidence.

The pith and marrow, the gist and kernel of the case of the plaintiff is that he should be given the liberty to make use of his l/3rd share in the

said motor pump set for the purpose of irrigating his entire three items of the properties found described in the schedule of the plaint.

I recollect and call up the maxim -- ubi jis ibi remedium -- Where there is a right, there is a remedy.

I also recollect the following maxim --Nemo dat quod non habet (No one can convey better than what he has). As such, the plaintiff should

understand as to what right he acquired from his vendor and he can only step into the shoes of his vendor concerning such right only. Over and

above that he cannot assert anymore right.

When this Court raised a query as to whether the defendant is preventing the plaintiff from using the common well water in general for the

purpose of irrigating his entire extent of land in the three items of the properties, advocates on both sides in unison would submit that the right of the

plaintiff to use the well water for irrigating his three items of the suit properties is not in dispute.

Wherefore, the dispute lie within a narrow campus. When the plaintiff attempted to use the 3 HP motor pump set over which, he is having l/3rd

share for irrigating the entire extent of his holdings in the three items over and above the 331/2 cents in the first item, which he purchased from his

vendor, there arose dispute.

Since the dispute is only in respect of the plaintiffs right to use the motor pump set over which he is having l/3rd share alone, the defendant was

justified in raising his objection in respect of that. There is no law, which enables the plaintiff to assert that in an electricity policy, the plaintiff is

having share by virtue of he having purchased l/3rd right in the motor pump set.

In my considered opinion, electricity service connection is impartible and it cannot be a subject matter of partition. Neither in the Act nor in the

Tamil Nadu Electricity Supply Code any right is given to the consumer, viz., the person who obtained electricity service connection to share his

connection with others or partition the same.

I would like to refer to an illustration, which would highlight the point that an owner of a house or a motor pump set who is enjoying electricity

service connection cannot allow a third party to take service connection from his electric supply. Even if he through any means or device supplies

electricity to others that would be treated as one against law the Electricity Supply Act and the Electricity Supply Code.

However, in this case, without informing the Electricity Board, it appears the 1/3rd share in the electricity service connection itself was

transferred, which cannot be countenanced and uphold by this Court.

My mind is reminiscent and redolent of the following maxims:

(i) Ex turpi causa non oritur actio -- (Out of a base (illegal or immoral) consideration, an action does (can) not arise.

(ii) Ex dolo malo non aritur actio -- (Out of fraud no action arises; fraud never gives a right of action. No Court will lends its aid to a man who

founds his cause of action upon an immoral or illegal act.

(iii) In pari delicto potior est conditio possidentis (defendentis) -- In a case of equal or mutual fault (between two parties) the condition of the party

in possession (or defending) is the better one. Where each party is equally in fault, the law favors him who is actually in possession. Where the fault

is mutual, the law will leave the case as it finds it.

The sum and substance of the aforesaid three sister maxims are to the effect that the Court will not render its help to a illegal contract or

arrangement. However, this fact was not argued before both the Courts below and the Courts below also simply accepted the case of the plaintiff

and the defendant and enforced it. The defendant has not preferred any cross appeal or cross objection.

Be that as it may, as of now, I could see no perversity or illegality in the judgments and decrees passed by both the Courts below in not

granting the entire relief of injunction sought by the plaintiff in respect of the plaintiff''s right to irrigate all the three items, of the suit properties found

described in the schedule of the plaint.

Accordingly, I would like to hold that the plaintiff is having no right to claim such blanket right as prayed by him.

The substantial questions of law Nos. 1 to 3 are answered to the effect that there is no illegality on the part of both the Courts below in

restricting the right of the plaintiff to use the common motor pump set and the electricity connection concerned to the extent of his l/3rd share alone

so as to irrigate the land, which he purchased from his vendor. In the result, this second appeal is dismissed. No costs.