Rathinam vs Poongavanam

R. Mala, J.—The second appeal has been preferred against the judgment and decree dated 21.07.2003 made in A.S. No. 2 of 2003 passed by the learned Subordinate Judge, Srivilliputhur, reversing the judgment and decree dated 04.10.2002 made in O.S. No. 119 of 2000 passed by the learned Principal District Munsif, Srivilliputhur.

The averments in the plaint is as follows:

The suit properties are separate properties of Ponnammal, who is none other than the mother of plaintiff and defendant. In 1993, due to the difference of opinion arose between the plaintiff and defendant and their parents, an unregistered partition has been taken place. From that day onwards, they are enjoying the respective share of the properties. After the partition, defendant has purchased the fourth item of suit property and he planted mango saplings in the said property. He irrigating water from first item of the suit property. The fourth item of suit property is a separate property of the defendant. So, the defendant is having no right to take water from the first item of suit property to the fourth item of suit property, which is separate and self-acquired property of the defendant. Defendant had attempted to lay a pipe line to take water from the well (first item of suit property) and the matter was referred to panchayat. Panchayatdar also compromised the matter. Even then the defendant taking steps for laying pipe line to take water to the fourth item of suit property. So the plaintiff has constrained to give a complaint before Vathirayiruppu police station. But, the police supporting the defendant. Hence, the plaintiff constrained to file the suit for declaration that the first item of suit property is a common well for both plaintiff and defendant and for permanent injunction restraining the defendant from taking water from the first item of suit property to the fourth item of suit property and he prayed for a decree.

The gist and essence of the written statement filed by the defendant is as follows:

The defendant has purchased the fourth item of property in the year 1992. It is false to contend that after purchase of fourth item of suit property, in 2000 he taken steps to irrigate the same from the first item of suit property by laying pipe line. Theory of panchayat as well as complaint is false. From the date of purchase of fourth item of suit property, the defendant''s s irrigating the land from the first item of suit property. In the year 1993, the matter has been referred to panchayat. In panchayat, it was admitted that the defendant has every right to take water from the well(first item of suit property) to fourth item of suit property. Plaintiff also accepting the agreement and signed the same. So the plaintiff is estopped from filing the suit. It is false to contend that the defendant is having influence with the police. At the consent of plaintiff only, the defendant is taking water from the first item of suit property to the fourth of suit property. It is false to contend that if the fourth item of suit property has been irrigated through the first item of suit property, it will dry. There is no chance for drying the first item of suit property since the first item of suit property is situated adjacent to Pilavakkal Dam. It is possible to irrigate 10 acres of land from the first item of suit property. It is false to contend that the first item of suit property is to be only for using survey No. 1413. So, the plaintiff is not entitled for any relief. The suit has not been properly valued and the Court Fees paid is not correct. Thus, the defendant has prayed for the suit.

The learned Principal District Munsif, Srivilliputhur after considering the averments in the plaint and written statement, framed four issues and considering the oral evidence of P.W.1 and 2, D.Ws1 and 2 and Exs.A1 to A6, Ex.B1, decreed the suit declaring that the first item of suit property is a common well for both plaintiff and defendant and granting permanent injunction restraining the defendant from irrigating water from the first item of suit property to the fourth item of suit property. Against the said judgment and decree, the defendant has preferred an appeal before the learned Subordinate Judge, Srivilliputhur. The learned First Appellate Judge, after considering the arguments of both sides and after framing proper points for consideration, allowed the appeal and set aside the decree and judgment of the trial Court and dismissed the suit. Against that the plaintiff has come forward with this appeal.

The substantial questions of law arises in the Second Appeal are as follows:

Whether the Appellate Court is right in acting upon Ex.B1, even without adverting to the specific finding of the Trial Court that Ex.B1 partition deed unregistered and not duly stamped cannot be looked into is inadmissible in evidence?

Point:

The appellant herein as plaintiff had filed a suit for declaration that the well, which is the first item of suit property is a common well. Since after partition the respondent/defendant had purchased fourth item of suit property, he is not entitled to irrigate the fourth item of suit property from the first item of suit property and thus he prayed for a decree for declaration and permanent injunction.

The respondent/defendant raised a contention that the appellant/plaintiff has estopped from contending the same since he has purchased the property in the year 1992 and from the year 1992 itself, he has been irrigating the fourth item of suit property from the first item of suit property and hence he prayed for the dismissal of the suit.

The trial Court after considering the evidence and documents, decreed the suit. Against the same, the respondent/defendant preferred an appeal before the first appellate Court, where the appeal was allowed and reversing the decree and judgment of the trial Court and dismissed the suit. Against the same, the present second appeal has been filed by the appellant/plaintiff.

The learned appellant counsel would contend that the suit is for declaration that the first item of suit property is a common well for both plaintiff and defendant and permanent injunction and also for other consequential reliefs. The suit properties are originally belonged to one Ponnammal, who is none other than the mother of appellant/plaintiff and respondent/defendant. On 08.01.1993, they divided the property under an unregistered partition deed and they are in possession of the respective share. The possession of the properties are not disputed and the first item of suit property has been utilizing by both the parties commonly is also not disputed. The only dispute is after the partition, the respondent/defendant has purchased the fourth item of the suit property and he has attempted to take water from the common well to the land newly purchased by him after partition. Hence a complaint was given before Deputy Superintendent of Police by the appellant/plaintiff against the respondent/defendant and the same was marked as Ex.A2. The respondent/defendant has also given a complaint against the appellant/plaintiff, which is marked as Ex.A3 and on the basis of that complaint, a case was registered in crime No. 97 of 2000 u/s 436 and 506(2) I.P.C and the learned Judicial Magistrate No. 1, Srivilliputhur has also taken cognizance as C.C. No. 52 of 2000. In that case the appellant/plaintiff herein was acquitted and the certified copy of the judgment is marked as Ex.A6. Ex.A4 is the certified copy of the sale deed for the fourth item of suit property which was self acquired by the respondent/defendant. Ex.A5 is the kist receipt. Ex.B1 an agreement, which is alleged to be taken place on 16.06�1993, is an unregistered document. This document is not admissible in evidence. Even though the attestor of the document has been examined, since it is an unregistered document, the same is not admissible in evidence.

In the above said circumstances, I am of the opinion that Ex.B1 is inadmissible in evidence. The trial Court has considered the same in elaborately in paragraph Nos. 11 and 12 and came to the correct conclusion that Ex.B1 is not admissible in evidence. But, in the first appellate Court, the learned first appellate Judge has not considered the above aspect in a proper prospective. Even though the document is construed as a family arrangement that to be registered. But, as per Section 17-A of the Registration Act, the document must be registered. But, here the document is not registered. Merely because the appellant herein has admitted the signature in Ex.B1, defect in the documents cannot be cured and hence the same cannot be looked into. So, the findings of the learned first appellate Court that Ex.B1 is acted upon is an unacceptable one. The substantial question of law answered accordingly.

The learned Counsel appearing for the appellant would rely upon the decision reported in 1970 MLJ 376 Sivarama Pillai and Ors. v. Marichami Pillai and argued that equal division of properties having equal rights to take water from the well kept in common, for irrigation and no right to use water for irrigating other lands. The relevant portion is as follows:

When a well or some source of irrigation irrigates lands belonging to several persons, the source of irrigation cannot be divorced or dissociated from the lands. Irrespective of the question of damage, the plaintiff would be entitled to an injunction on the simple ground that the latter has not right to use water for irrigating other lands and the right to take water from the well is inseparably connected with the lands. The uniform trend of the decisions of this Court is all one way, i.e., not to permit the co-owner to irrigate any land newly acquired by him.

There is, however, nothing to prevent the parties from entering into an arrangement which would be very unusual and extraordinary that the arrangement was merely a division of the water in the well in the abstract with right to use the water in any manner they liked to irrigate any lands they liked. It is for the parties to plead and establish such as unusual agreement. Otherwise the right in the well will be inseparably connected with the land. Independently of any question of damage, the plaintiff will be entitled to an injunction restraining the defendants from taking water for irrigating other lands. This limit or fetter on the defendant with regard to the use of the water from the well equally applies to the plaintiff who too cannot take water for irrigating the lands newly acquired by him.

So as per the above decision, since Ex.B1 is not admissible in evidence, the respondent/defendant is not entitled to take water to his newly acquired property i.e. fourth item of suit property from the first item of suit property. Since the respondent has admitted that he is irrigating to his newly purchased property from the common well, the appellant has come forward with the suit for declaration that the first item of suit property is a common well for both plaintiff and defendant.

In the above said circumstances, I am of the opinion that the first appellate Court has committed an error while in dismissing the suit. The appellant is entitled for declaration that the first item of suit property is a common well for both appellant and respondent and the appellant is also entitled to irrigate the second item of suit property and the respondent is entitled to irrigate the third item of suit property from the first item of suit property. But, the respondent/defendant is not entitled to irrigate the fourth item of suit property, which is his self acquired property after the partition., from the first item of suit property.

In fine, the second appeal is allowed and the judgment and decree dated 21.07.2008 passed by the learned Subordinate Judge, Srivilliputhur is set aside and the judgment and decree dated 04.10.2002 passed by the learned Principal District Munsif, Srivilliputhur is restored and confirmed. No costs.