Manoranjitham and Others vs Natesan

Honourable Mr. Justice V. Periya Karuppiah

This appeal has been filed by the defendants against the judgment and decree passed by the First Appellate Court in A.S.No. 65 of 2003 dated

14.09.2004 in reversing the judgment and decree of the trial Court made in O.S.No. 110 of 1992 dated 30.04.2003.

The appellants herein are the defendants and the respondent is the plaintiff before the trial Court.

The case of the plaintiff before the trial Court would be as follows:

The suit property is the ancestral joint family of the plaintiff and his brother, the 1st defendant. About 10 years ago, there was a partition in the

family and in the said partition, the plaintiff was allotted land and 1/3rd right in the well and pump set. During the pendency of the suit, the 1st

defendant died and his legal representatives have been added as defendants 2 to 7. The 7th defendant had been exonerated from the suit on

23.09.1998. At the time of partition, there was no pump set. Hence, the 1st defendant and another brother Kannan jointly installed pump set in the

suit well. Since the service connection was taken in the name of the defendant, a separate agreement was entered into among the plaintiff, the 1st

defendant and Kannan on 26.5.1984. As per the said agreement, each one was given 1/3rd right in the pump set. The plaintiff is enjoying his 1/3rd

right till today and he is irrigating his lands with the said pump set. Therefore, the plaintiff has 1/3rd right in the suit property. The defendant, taking

advantage of the fact that the service connection stands in his name is preventing the plaintiff from using the pump set. When the defendant had

attempted to obstruct the plaintiff from taking water to his groundnut crops on 25.01.1992, the plaintiff had prevented him from doing so. Since the

defendant is preventing the plaintiff from taking water through pump set, the plaintiff has filed the suit for permanent injunction.

The written statement filed by the defendant is as follows:

The defendant has denied all the allegations contained in the plaint. According to the defendant, it is true that the suit property is an ancestral

property but it is false that there was a partition about 10 years ago. The suit properties were partitioned in the year 1959 itself. It is true that there

was no pump set at that time. It is false that the plaintiff has 1/3rd right over the well and the pump set. The suit property was divided into 5 parts.

The plaintiff has suppressed these facts and has claimed 1/3rd which is not valid. The defendant has brothers viz., Anumuthu, Natesan, Gopal

Kannaiyan and Munisami. The plaintiff was entitled only to 1/5th right. One brother Kannan @ Kannaiyan has sold his 1/5th right in favour of 4

brothers by agreement dated 27.3.1971. Hence, it is false that Kannan @ Kannaiyan had 1/3rd right over the suit property. There was a pump set

in S.No. 216/1, which was allotted to the share of Kannan. The plaintiff along with other brothers had given consent letters in favour of the 1st

defendant to take electricity service connection in his name. Another brother Gopal had sold his right in the well, Kavalaipadi and the channel in

favour of the 1st defendant on 18.10.1983. Hence, the defendant is entitled to half share in the well and the pump set. It is false that the plaintiff

and the defendant along with other brother Kannaiyan, had installed pump set and that an agreement was executed on 26.05.1984. The said

agreement was created by the plaintiff. The plaintiff or the said Kannan or anybody has no right over the well and the pump set. The plaintiff never

used the pump set for taking water. Further, it is false that the plaintiff was prevented on 25.01.1992 from taking water to his groundnut crops. The

plaintiff should have asked for declaration of his title. Hence, the suit for bare injunction is not maintainable. The plaintiff field a suit in O.S.No. 487

of 1984 against his brother Gopal and the suit ended against the plaintiff. The plaintiff preferred an appeal in A.S.No. 2 of 1993 and the same was

also dismissed. Since the defendant did not depose in favour of the plaintiff, the plaintiff has filed this suit with a view to wreck vengeance. The

documents filed by the plaintiff are not true documents. Therefore, is no cause of action for the suit. The court fee paid is incorrect and therefore,

prayed for dismissal of the suit with costs.

The trial Court had framed necessary issues and entered trial. After appraisal of the evidence of the witnesses and the documents produced on

either side, the trial court had come to the conclusion of dismissing the claim of the plaintiff without costs.

Aggrieved by the judgment and decree passed by the trial Court, the plaintiff had taken the matter before the First Appellate Court in A.S.No.

65 of 2003. After hearing both parties, the First Appellate Court had decreed the suit filed by the plaintiff by reversing the judgment and decree

passed by the trial Court. Aggrieved by such reversal judgment and decree passed by the First Appellate Court, the defendants have preferred the

present appeal.

On admission, this Court had framed the following substantial questions of law for consideration in this appeal.

i) Whether the lower appellate Court is right in holding Ex.P3 as true when the plaintiff failed to prove the same.

ii) Whether the lower appellate Court is right in holding that the plaintiff has got 1/3rd share in the pump set based on Ex.P3 alone when the

pleading and the evidence of P.W.1 are contradicting the claim?

iii) Whether the lower appellate Court is right in saying that the plaintiff has got 1/3rd share in the pump set when there is no such prayer for

declaration and the specific share of the plaintiff is not mentioned in the suit schedule also?

Heard, Mr.V.Jeevagiridharan, learned counsel for the appellants/defendants. No appearance for the respondent despite his name is printed in

the cause list.

Learned counsel for the appellants would submit in his argument that the First Appellate Court had miserably failed in reversing the judgment

and decree passed by the trial court. He would further submit in his argument that the Muchalika produced in Ex.A3 was a fabricated document

and the evidence given on such fabricated document by P.W.2 as attestor of the said Muchalika would go to show the falsity of the evidence of

P.W.2. He would further submit that the reliance placed on the evidence of P.W.2 is not sustainable in view of the fact that the plaintiff himself

admitted that one of the parties to the said Muchalika viz., Kannaian @ Kannan had no right in the suit well or any property as he had already

relinquished his right in favour of all the other brothers in the year 1971. He would further point out the admission made by P.W.1 (plaintiff) in his

evidence to that effect. Therefore, the said Kannan said to have executed such Muchalika and the same was supported by P.W.2 could not be

true. He would further submit in his argument that the evidence of P.W.1 would further go to show that the electricity connection was obtained by

and in the name of the first defendant, Munusamy and all other brothers have stated no objection for giving electricity connection to the said

Munusamy and therefore, the claim for share in the electricity connection is also not sustainable. He would further submit in his argument that one

of the brothers Gopal, even though has got right in the suit well had not joined in connecting electricity connection and installing electric motor

pump set. Therefore, he is using Kamalavadi in which all the five brothers were having right for baling out water. He would further submit that the

said attitude of the said Gopal would go to show that the signing for no objection for getting electricity connection in the name of the first defendant

Munusamy was not for and on behalf of those persons who gave no objection but it was obtained only by the first defendant as the sole and

exclusive owner of electric connection. He would further submit in his argument that the said Muchalika, if not relied upon, there would not be any

right for the plaintiff in the electricity connection as well as in the electric motor pump set. At best, he could claim right in the suit well and that

would also be for 1/4th share and not 1/3rd as ordered by the First Appellate Court. He would further submit in his argument that when the

Muchalika Ex.A3 was not proved and it was not a true document, the plaintiff will not get any share muchless 1/3rd share in the pump set

electricity connection and also in the electric motor pump set. He would further submit that one of the brothers had sold his 1/4th right in the suit

well in favour of the first defendant and therefore, he has got half right in the suit well and the remaining brothers namely, the plaintiff and Gopal

would get 1/4th share each in the suit well. He would further submit that the First Appellate Court had erred in law in granting the relief as sought

for by the plaintiff without satisfying the principles for the proof of the document especially Ex.A3 and also without any proper appreciation of

evidence adduced by the plaintiff and therefore, the judgment and decree of the lower Appellate Court may be interfered with and set aside and

proper share of the plaintiff in the suit well alone may be ordered. Therefore, he would request the Court to allow the appeal.

I have perused the papers including the judgment and decree passed by the Courts below and the evidence adduced on either side.

I have also given anxious considerations to the arguments advanced on the side of the learned counsel for the appellant.

The suit was filed by the plaintiff seeking for permanent injunction against the defendant, their agent from causing any disturbance to the

possession and enjoyment of the plaintiff in the suit property and for costs. The suit property as shown in the schedule was in the Melasamangalam

village in re-survey No. 216/1, a well and the electricity connection in S.C.No. 244 and the machine attached to the electricity connection and

proportionate right in them. The trial court had come to the conclusion of dismissing the suit by holding that Ex.A3 Muchalika said to have

executed by the plaintiff, first defendant and one Kanniyan was not proved since the attestor did not speak about the attestation of the said

document. However, the first Appellate Court had come to the conclusion that the said Muchalika was found to be true document since the

attestor had acknowledged the execution of the document from the said three executors. As per the said Muchalika Ex.A3, the plaintiff, first

defendant and one Kannaian @ Kannan were having right in the electric motor pump set and electricity connection had in the said well as

described in the suit property. However, it is an admitted case that the suit well was belonged to five brothers namely the plaintiff, first defendant,

Kannaian, Gopal and yet another brother. However, it is also been admitted by the plaintiff in his evidence that Kannaian had relinquished his right

in the suit well in favour of all the other four brothers and therefore, all the four brothers are equally entitled to 1/4th share in the suit well. The

admission made by the plaintiff during his cross examination was not only on one day but also on yet another day when his cross examination was

continued. Yet another brother had sold his 1/4th share in favour of the first defendant and therefore, the other two brothers namely plaintiff and

one Gopal are each entitled to 1/4th share in the suit well, apart from the first defendant who was having 1/4th share in the suit well. When the

circumstances are such that the said Kannaian @ Kannan was not having any right over the suit well how could he come forward to enter a

Muchalika in Ex.A3 for installing electric motor pump set and for getting the electricity connection by advancing monies. What would be the benefit

to the said Kannaian by executing Ex.A3 and share the electric connection and electric motor pump set was not explained by examining the said

Kannaian @ Kannan. According to the defendants, the said document was concocted by the plaintiff to suit his case. It is an admitted fact that yet

another brother Gopal was not using any electric motor pump set or electric connection standing in the name of the first defendant, but he was

using Kamalavadi for baling out water. In the said circumstances, whether the decision reached by the First Appelalte Court that Ex.A3 was a true

document on the basis of the evidence given by P.W.2 could be upheld as in confirmity with law, is a crucial question.

It is also an admitted fact that Kannaian @ Kannan was not having any interest in the suit well. The actual witness who attested Ex.A3 did not

say that he saw the document executed by the executors. No doubt, Ex.A3 is not an attestable document. The said document could have been

proved by some other means namely by examining the executor himself. The said Kannaian @ Kannan who had admittedly relinquished his share

in the suit well could have been examined by the plaintiff to establish his case as to why he had joined with the plaintiff and the first defendant to

execute Ex.A3. His evidence is the best evidence to hold the key as to whether Ex.A3 could be relied upon as a true document but he was not

examined as one of the witnesses on the side of the plaintiff. In the said circumstances, the admission made by the plaintiff would categorically say

that Kannaian @ Kannan was not having any right over the suit well would make the Muchalika said to have been executed by the plaintiff, the first

defendant and the said Kannan is a doubtful document. When such document has been questioned or denied by the first defendant that it has been

concocted, it is for the plaintiff to produce satisfactory evidence to prove the document. The proof as produced by the plaintiff for laying claim on

the basis of Ex.A3 are not sufficient and therefore, Ex.A3 should not have been construed as a true document. On the other hand, the decision

reached by the First Appellate Court would go to show that the document was proved to have entered in between the parties to share the right

over the motor pump set and the electric connection. Actually, the said Kannaian @ Kannan was not having any right in the suit well itself.

Moreover, the first defendant who is also one of the parties to the said Muchalika Ex.A3 had denied the execution and as pointed out by the

learned counsel for the defendants, another brother namely Kannan @ Kannaian was not examined. In the said circumstances, the satisfaction of

the First Appellate Court regarding the proof of Ex.A3 based on the evidence given by P.W.2, cannot be sustained in law. Per contra, the

document Ex.A3 which could not be a true document was relied upon by the First Appellate Court without any legal basis and a decree was

granted in favour of the plaintiff on that basis for reversing the judgment of the trial court. As regards the judgment of the trial court, we could see

that the right in suit well was admitted by the parties but the trial Court was not inclined to grant a decree in respect of the suit well, as a lesser

relief. But the First Appellate Court, without appraising the evidence properly had come to the conclusion of awarding 1/3rd share in the suit well

in favour of the plaintiff which is also not sustainable. The evidence adduced on either side would go to show that the plaintiff is only entitled to

1/4th share in the suit well which is lesser than the 1/3rd right as asked for by the plaintiff and both the Courts below ought to have decreed the suit

only to that extent.

For the forgoing discussions, I am of the considered view that the questions of law framed could be decided only in favour of the appellant and

thereby, the document produced in Ex.A3, Muchalika is found to be an unsustainable document and therefore, no right can be flown on that basis

and the reliance placed by the First Appellate Court on Ex.A3 is also not sustainable in law.

Therefore, I have no hesitation to interfere with the judgment and decree passed by the First Appellate Court and set aside the same regarding

the right awarded to the plaintiff in respect of the electricity connection and electric motor pump set and to modify the share in the suit well as 1/4th

share instead of 1/3rd share awarded by the First Appellate Court. Therefore, the suit filed by the plaintiff ought to have been decreed only in

respect of 1/4th share in the suit well alone as lesser relief which is a lesser extent as of the suit schedule.

Accordingly, the second appeal is partly allowed and the judgment and decree of the First Appellate Court is interfered and modified to the

extent of granting a decree in favour of the plaintiff in respect of 1/4th share in the well alone out of the suit schedule. In the peculiar circumstances

of the case, there shall be no costs throughout.