Sengottaiyan and 2 others vs Palani Mooppan @ Palanisamy

G. Rajasuria, J.—This Second Appeal is focussed by the defendants, animadverting upon the judgment and decree dated 10.6.2008 passed

by the learned I Additional Subordinate Judge, Erode in A.S. No. 84 of 2006 confirming the judgement and decree dated 31.3.2006 passed by

the learned First Additional District Munsif, Erode in O.S. No. 36 of 2003. For convenience sake, the parties are referred to here under according

to their litigative status and ranking in the party array before the Trial Court. The respondent/plaintiff, filed the Suit O.S. No. 36 of 2003 seeking

declaration, mandatory and permanent injunction as against the defendants. The defendants entered appearance. D2 filed the written statement

resisting the Suit, which was adopted by D1 and D3; whereupon, the Trial Court framed the necessary issues, based on the pleadings.

During Trial, the plaintiff examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A12 were marked. On the defendant''s side D2

examined himself as DW1 along with DW2 and no document was got marked.

Ultimately the Trial Court decreed the Suit, as against which the defendants, preferred Appeal before the learned First Additional Subordinate

Judge, Erode for nothing but to be dismissed by the First Appellate Court. Being disconcerted and aggrieved by the judgments of both the Courts

below, the defendants have filed this Second Appeal on various grounds and also suggesting the following substantial questions of law:

(i) Whether the Courts below erred in law and misdirected themselves in granting the relief of declaration and mandatory injunction merely on the

basis of presumption as to the existence of the Suit Canal, in the absence of any other oral and documentary evidences to prove its existence and

the identity of the north-south dispute canal, or in the absence of any other legal evidence in support of the plaintiffs claim over the Suit property?

(ii) Whether the Courts below have committed material irregularity in relying upon the Commissioner''s report and plan specifically when they have

not been marked as exhibits by examining the Advocate Commissioner as witness, if so, whether the findings of the Courts below on the basis of

the unmarked evidence is sustainable in law?

(iii) Whether the plaintiff is entitled to claim the right over the North-South Canal under Ex.A10 as well as under the plea of easement by

prescription, when they are mutually contradictory and destructive pleas?

(iv) Whether the Courts below erred in not taking into consideration or giving a specific finding on the question whether the Suit North-South

Canal is different from the canal referred to under Ex.A10 to Ex.A12?

(v) Whether the Suit is bad for non-joinder of necessary and proper parties, particularly when the plaintiff has claimed that the Suit Canal was

formed by the Public Works Department and thereby he has made a complaint to them to restore the Suit Canal, more so, the Government is

necessary and property for complete adjudication of the dispute in the Suit?

(extracted as such from the memorandum of Second Appeal)

Heard the learned Counsel appearing for the appellants/defendants and the learned Counsel for the first respondent/plaintiff.

A bare poring over and perusal of the typed set of papers and the judgments of both the Courts below and also consideration of the argument

put forth on either side would display and demonstrate that the plaintiff filed the Suit for declaration and for mandatory injunction mainly on the

ground that the plaintiff was taking water to his land through the field-bothie running from South to North across the property of the defendants

who demolished such field-bothie. Whereas the defendants entered appearance and resisted the Suit by filing written statement full of no-nos as

against the averments in the Plaint, by way of remonstrating and refuting, challenging and impugning, the case of the plaintiff in the Plaint but

however, contending that a channel was running on the extreme southern portion of the defendants'' land from West to East branching from the

Government canal and turning towards North on the extreme eastern side of the defendants'' land and thereafter turning towards West on the

Northern extreme of the defendants'' land and entering into the plaintiffs land; the defendants did not demolish the alleged imaginary bothie as

alleged in the plaint. Both the Courts below gave a categorical finding of fact to the effect that the defendants did demolish the bothie running

across the defendants'' land and accordingly decreed the Suit and as against which, this Second Appeal has come before this Court.

The learned Counsel for the defendants/appellants would submit that the Trial Court was so unmindful in not even noticing the very objection

filed by the defendants to the Commissioner''s report and decided the lis; even though the first Appellate Court traced out the said objection filed

by the defendants, nonetheless it failed to appreciate the contentions of the defendants in proper perspective; the Advocate Commissioner

deliberately omitted to depict in his sketch and report the very existence of the channel existing in the defendants'' land as narrated in the written

statement; the evidence of PW3 would highlight that he was not aware of the truthfulness or otherwise of Exs.A10, A11 and A12, which were

marked through him.

Whereas the learned counsel appearing for the plaintiff/respondent would set forth and put forth his argument to the effect that the Commissioner

correctly noted in his report, the physical features and Exs.A10, A11 and A12 prepared by the Government officials are reliable ones and that

DW2, the Village Administrative Office himself spoke about the existence of the said Bothie, which ran across the land of the defendants.

The learned counsel for the defendants alternis visibus argued that even assuming without admitting the existence of the bothie, there is nothing to

indicate that for 20 long years as contemplated u/s 15 of the Indian Easements Act, 1882, the plaintiff was taking water through the bothie and

thereby acquired easement by prescription.

Whereas the learned counsel for the plaintiff would contend that for several decades together the plaintiff has been using the said field-bothie for

irrigating his land and in such a case, the defendants were not justified in demolishing it. Exs.A10, All and A12 are the documents prepared by the

public officials; Ex.A10 is the report prepared by the Assistant Engineer on 1.10.2001, which would evince and evidence that the said Canal as

stated by the plaintiff was running from South to North across the defendants'' land by branching from the small tank constructed by the agricultural

department; the water from that small tank was flowing through the left vent of the small tank situated at the junction of Survey Nos. 8/3 and 10

and that the said field-bothie was found demolished at the instance of the defendants. The report also would clearly demonstrate and exemplify that

there was no other way of taking the water to the plaintiffs land except through the said field-bothie, which ran across the defendants'' land from

South to North. The said report emerged consequent upon the Complaint given by the plaintiff. Ex.A11 is the report submitted by the Executive

Engineer to the Collector based on Ex.A10. Ex.A12 is the report submitted by the Assistant Executive Engineer to the Executive Engineer relating

to the same subject, wherefore, it is pellucidly and palpably clear that all those reports prepared by the responsible public officials would highlight

the fact that as per Government records the said Canal was running from South to North for taking water from the Northern side vent of the small

tank constructed by the Agricultural Department.

The learned counsel for the defendants would argue that there is no presumption that the water might have been taken only through the said

bothie, which was allegedly destroyed by the defendants as even according to the Commissioner''s report there are several small tanks constructed

by the Government for water being taken through bothies to the lands. Put simply, such an argument fails to carry conviction with this Court, for the

reason that the Commissioner''s sketch would indicate and reveal that such small tanks are situated only in two places marked as 4 and 5 in the

Commissioner''s sketch and through the vent of whichever tank, the water was taken from South to North, certainly, it would have run across the

field of defendants only and as such the defendants'' cannot press into service that there was a channel running virtually in an almost ""U"" shaped

manner adjoining the, eastern and northern borders of the defendants'' land. No doubt, PW3 through whom, Exs.A10, A11 and A12 were

marked would state that he was not personally aware of the contention of those reports, but those reports were prepared by the officials only and

through him the reports were marked. There is nothing to indicate that those officials had any antipathy or abhorrence, dislike or detest, aversion or

abomination as against the defendants so as to see that the defendants are made to suffer in the litigative process and correspondingly the plaintiff

to win and achieve success in the litigative battle.

DW2, the Village Administrative Officer, who was examined on the side of the defendants'' would support the case of the plaintiff by

highlighting that in the defendants'' land bearing Survey No. 8/3 the said Bothie was running from South to North. In fact, DW2, deposed from his

personal knowledge as he happened to be the Administrative Officer of that locality and in such a case, I am having no reason to look askance at

his evidence. DW2, the Village Administrative Officer had no axe to grind in the matter and in an unbiased manner without any embellishment, he

deposed before the Court in support of the plaintiff''s case. Wherefore, the deposition of PW1 and PW2 gains support to the effect that the

plaintiff had been taking water to his land for several decades together and it is therefore crystal clear that it was the defendants, who happened to

be the recent purchaser of the property, demolished the said field bothie and deprived the plaintiff of his right to take water. In such a case, the

defendants were not justified in simply insisting that precisely there should be evidence as per Section 15 of the Indian Easements Act, 1882 that

the plaintiff has been taking water for 20 years so as to prove the acquisition of easement by prescription.

The evidence of P.Ws.1 and 2 coupled with the oral evidence of DW2 and Exs.A10, A11 and A12 would clearly evince and evidence that for

several decades the plaintiff has been taking water through the said field-bothie and it is common or garden principle of law that onus of proof is

ambulatory and not static. As such, the onus of proof got shifted on the defendants'' side to prove that the case of the plaintiff is false. It is a

peculiar case, in which the defendants had chosen to demolish the field-bothie and in such a case, adverse inference could be drawn as against

them that they being the recent purchasers of the said land ought not to have demolished the said field bothie.

In such a case, the defendants'' cannot call upon the plaintiff to prove by any documentary evidence that from a particular date onwards, he

started taking water through the field-bothie. Here the oral evidence of P.Ws. 1 and 2 are supported by documentary evidence and over and

above that the officials oral evidence also support''s the case of the plaintiff.

At this juncture, my mind is reminiscent and redolent of the following maxim-omnia praesumuntur contra spoliatorem - Every presumption is

made against a wrongdoer. In such a case, I could see no merit in this Second Appeal.

Accordingly,--

(i) the suggested substantial questions of law Nos. 1 to 4 are based on the wrong assumption as though both the Courts below were perverse in

appreciating the evidence. But my discussion supra would highlight that there were no wrong analysis and much less perversity in appreciating the

oral and documentary evidence in deciding the case by both the Courts below.

(ii) the suggested substantial question of law No. 5 is relating to non-joinder of necessary parties. I would like to highlight that such a question of

law does not arise at all and that too, when in the written statement, there is no reference to the plea of non-joinder of the Government as a party. I

would like to refer to Order 1, Rule 9 of the CPC and it is extracted hereunder for ready reference:

Misjoinder and non-joinder.-- No Suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every Suit

deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

Provided that nothing in this rule shall apply to non-joinder of a necessary party

It is therefore crystal clear that the Suit cannot held to be bad for non-joinder of necessary party and that too when the defendants'' have for the

first time raised it before this Court without calling upon the lower Court to frame an issue in that regard after pleading to that effect.

At this juncture my mind is redolent and reminiscent of the following decisions of the Hon''ble Apex Court.

(i) Hero Vinoth (minor) Vs. Seshammal, certain excerpts from its would run thus:

After the amendment a Second Appeal can be filed only if a substantial question of law is involved in the case. The memorandum of Appeal

must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question.

If satisfied, the High Court has to formulate the substantial question of law involved in the case........

18......It has to be kept in mind that the right of Appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive

statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly

fulfilled before a Second Appeal can be maintained and no Court has the power to add or to enlarge those grounds. The Second Appeal cannot

be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under

this Section. Further, a substantial question of law has to be distinguished from a substantial question of fact......

(ii) Kashmir Singh Vs. Harnam Singh and Another,

A bare perusal of those decisions would evince and convey that the Second Appeal is not by way of right. If at all the High Court finds that there is

perversity or gross violation on the part of the lower Court in applying the law or refraining from applying the law, the question of interference

could arise u/s 100 of the Code of Civil Procedure. But, in this case, as discussed supra, absolutely there is no perversity in the judgments

rendered by both the Courts below, warranting interference by this Court. In the result, the Second Appeal is dismissed. No costs. Consequently,

connected Miscellaneous Petition is dismissed.