Sankar vs Jainab Bi and Jaibunissa

M. Duraiswamy, J.—The above Second Appeal arises against the judgment and decree in A.S. No. 1 of 1998 on the file of Sub Court,

Kallakurichi reversing the Judgment and Decree in O.S. No. 253 of 1993 on the file of Principal District Munsif, Kallakurichi.

The plaintiff in the suit is the appellant in the above second appeal. The respondents are the defendants in the suit.

The plaintiff filed the suit in O.S. No. 253 of 1993 on the file of Principal District Munsif, Kallakurichi to declare that he is the absolute owner of

the land measuring 0.0240/7 and for recovery of possession and for permanent injunction restraining the defendants from drawing water from the suit well to other lands.

The brief facts of the plaintiff is as follows:

According to the plaintiff, he purchased the suit property under a registered sale deed dated 7.1.1986 along with other properties from one

Velayuda Chettiyar. According to the plaintiff, a sum of Rs. 15,000/- was spent for digging the well in S. No. 40/7. The plaintiff paid a sum of Rs.

2,500/- towards his share for digging the well. Therefore, According to the plaintiff, he is entitled to 1/4th share in the well. According to the

plaintiff, the defendants are entitled to 3/4th share in the suit well. Since the defendants denied the share of the plaintiff in the suit land and that they

are drawing water from the suit well to their lands situate in other survey numbers, the plaintiff filed the suit.

The brief case of the defendants is as follows:

The first defendant in her written statement filed at the first instance contended that there is no well in S. No. 40/7. According to the first defendant,

she had spent Rs. 15,000/- for digging a well in S. No. 40/5 and that she is entitled to take water from the well, according to her will and wish.

The said written statement was filed on 19.4.1993. Subsequently, the first defendant filed an additional written statement dated 10.4.1996. In the

said additional written statement, the first defendant stated that even if the suit well is in S. No. 40/5 or 40/7, the lands and the well belong to her.

According to the first defendant, she purchased an extent of 0.04= cents out of 0.09 cents in S. No. 40/7 under a registered sale deed dated

30.4.1983 from the vendor Kaniyan Chetti. On the north of the suit land, the second defendant purchased 2.1/4 cents under a sale deed dated

7.1.1986. According to the first defendant, on the north of the said land is plaintiff''s land measuring 2.1/4 cents.

Before the trial court, the plaintiff was examined as P.W.1 and marked 2 documents Exs. A-1 and A-2. On the side of the defendants, 2

witnesses were examined but no document was marked. The Advocate Commissioner''s report and plan were marked as Exs. C1 and C2.

The trial court after taking into consideration the oral and documentary evidences of both the parties, found that the existence of the well in S.

No. 40/7 and also found that the suit well was dug by the plaintiff and defendants commonly. But the trial court also found that even if the first

defendant that the well in S. No. 40/7 without the consent of the plaintiff, then also the plaintiff is entitled to share in the suit well. On these findings,

the trial court decreed the suit.

Aggrieved over the judgment and decree of the trial court, the defendants filed an appeal in A.S. No. 1/98 on the file of Sub Court,

Kallakurichi. The lower appellate court after considering the materials available on record, found that since the plaintiff had purchased the property

under Ex.A2 sale deed dated 7.1.1986 with specific boundaries, the suit property cannot be termed as undivided property. On this ground the

lower appellate course reversed the judgment and decree of the trial court and allowed the appeal.

Aggrieved over the judgment and decree of the lower appellate court, the plaintiff had preferred the above second appeal.

Heard Mr. .R.Singaravelan, learned Counsel appearing for the appellant, Ms. P.T.Asha, learned Counsel appearing for the respondents.

At the time of admission of the above Second Appeal, the following substantial question of law arose for consideration:

Whether the findings of the lower appellate court that the appellant/plaintiff is in possession and enjoyment of the suit property is correct in law and

whether the first appellate court was right in dismissing the entire suit?

The learned Counsel for the appellant also raised the following substantial questions of law in the memorandum of grounds of the second appeal:

i) Whether the interpretation of Exs. A2, C1 and C2 by the lower appellate court is correct in law?

ii)Whether the finding of the lower appellate that the appellant/plaintiff is in possession and enjoyment of the suit property separately is correct in

law?

iii) Whether the judgment and decree of the lower appellate court in allowing the appeal eventhough the respondents/defendants have admitted the

title and possession of the appellant/plaintiff in respect of his lands in Survey No. 40/7 is correct in law?

Learned Counsel for the appellant contended that the findings of the lower appellate court is not correct for the reason that the lower appellate

court found that the appellant/plaintiff purchased 2.1/4 cents under Ex.A2 in S. No. 40/7 with specific boundaries and that a perusal of the Ex.A2

sale deed will show that the specific boundaries in S. No. 40/7 was not given and the boundaries mentioned in the sale deed is for the entire extent

of 2313. The learned Counsel for the appellant also contended that since the respondents/defendants having undivided share in the property, if the

respondent/defendant had dug the well in the undivided common land in S. No. 40/7 without the consent of the appellant/plaintiff, the well should

be construed as a common well. For this submission, learned Counsel for the appellant/plaintiff relied on a judgment reported in Mammathu and

Others Vs. Kathijumma Umma and Others, . From the above judgment, it could be seen that a co-owner making improvement without the

concurrence or with the clear understanding that he would be compensated, is no better then a volunteer and cannot expect any compensation for

such improvement from other co-owners. The learned Counsel also contended that the land purchased in S. No. 40/7 under Ex.A2 is undivided

and well dug in the said land is common to plaintiff and defendants.

Countering the submission made by the learned Counsel for the appellant, learned Counsel for the respondents submitted that the

appellant/plaintiff purchased the property under Ex.A2 with specific boundaries and it is not undivided. Learned Counsel also contended that the

suit well belonging to the respondents/defendants and the learned Counsel supported the findings of the lower appellate court and prayed for

dismissal of the second appeal.

On a careful consideration of the materials available on record and the submissions made by both the learned Counsel, it could be seen that the

appellant/plaintiff purchased the property under Ex.A2 on 7.1.1986 measuring an extent of 23in S. No. 40/7 measuring an extent of 2.1/4 cents out of 9 cents. From the perusal of Ex.A2 sale deed, it could be seen that the appellant/plaintiff

purchased an extent of 2.1/4 cents out of 9 cents in S. No. 40/7; 12 and in S. No. 40/6 totaling 23appellant/plaintiff in respect of S. No. 40/7. Further, it could also be seen from the evidence of D.W.1, who is the husband of the first

respondent/first defendant and father of the second respondent/second defendant, that he admitted that S. No. 40/7 has not been subdivided and

he also admitted that his wife, the first respondent has got half share in the property and his daughter, the second respondent has got 1/4th share in

S. No. 40/7 and also he admitted that the appellant/plaintiff has got 1/4th share in S. No. 40/7. Further, D.W.1 also deposed that he does not

know whether, boundaries are mentioned in the sale deed dated 30.4.1983 under which the first respondent/first defendant purchased the share in

the property in S. No. 40/7.

The Advocate Commissioner, who inspected the property filed his report and plan Exs. C1 and C2. From the perusal of Ex.C1 plan, it could

be seen that the suit well is in S. No. 40/7 on the southern side. S. No. 40/10 and 40/6 are on the northern side of the water channel. The water

channel found by the Advocate Commissioner has not been mentioned in the sale deed. The respondents/defendants though they have stated that

they purchased the lands under two sale deeds dated 30.4.1983 and 7.1.1986, they have not marked those documents in the suit. The said

documents are not available to decide whether the defendants have purchased their properties with specific boundaries or undivided. Even the first

defendant in her written statement filed at the first instance stated that there is no well in S. No. 40/7. But in her additional written statement stated

that even if the well is available in S. No. 40/5 or in 40/7, it belongs to her. This will show that the defendants are not coming out with the truth.

The Advocate Commissioner found the existence of the suit well in S. No. 40/7. Even in the plaint, the appellant/plaintiff stated that the land in

S. No. 40/7 is undivided. The appellant/plaintiff purchased 1/4th share in S. No. 40/7 i.e. 2.1/4 cents out of 9 cents. Though the first defendant has

stated that she dug a well in S. No. 40/5 spending Rs. 15,000/-, she has not produced any document to prove the same. Even according to the

appellant/plaintiff, he did not say that he dug the well employing his men. He says that he contributed Rs. 2,500/- for digging the well. D.W.1 stated

that she dug the well spending Rs. 15,000/- engaging one Dasan but she did not examine the said Dasan to prove that the well was dug by her.

The lower appellate court found that the appellant/plaintiff purchased 2.1/4 cents in S. No. 40/7 under Ex.A2 with specific boundaries. This finding

is not correct. The appellant/plaintiff purchased the entire extent of 2340/7. Therefore, the said finding is not sustainable. Even the first respondent/first defendant''s case was that she dug the well in S. No. 40/7 but she

does not say anything about the permission she got from the appellant/plaintiff for digging a well in the land in which, the appellant/plaintiff is also

having a share. The trial court have rightly came to the conclusion that the suit well is a common well and the plaintiff is entitled to 1/4th share. I find

no error in the said finding. The finding of the lower appelalte that the appellant/plaintiff purchased 2.1/4 cents in S. No. 40/7 with specific

boundaries is not sustainable as stated earlier. Since it is found that the appellant/plaintiff is entitled to 1/4th share in the suit property, the trial court

have rightly found that the plaintiff is entitled for injunction and for recovery of possession.

Therefore, for the reasons stated above, the judgments and decree of the lower appellate court dated 29.11.1999 made in A.S. No. 1 of

1998 on the file of the Subordinate Judge, Kallakurichi is set aside and the judgment and decree of the trial court dated 26.11.1997 made in O.S.

No. 253 of 1993 on the file of the Court of Principal District Munsif, Kallakurichi. is restored. The questions of law are decided in favour of the

appellant/plaintiff. The above second appeal is allowed. However, there will be no order as to costs.