Subbarayan @ Subramani vs Rengasamy

G. Chockalingam, J.—Challenge in this second appeal is to the judgment and decree, dated 22.07.2005 passed in A.S. No.58 of 2004 by the Subordinate Judge, Karur, confirming the judgment and decree passed in O.S. No.674 of 1999 on the file of the Additional District Munsif, Karur, dated 26.03.2003.

The appellant herein as plaintiff has instituted Original Suit No.674 of 1999 on the file of the trial Court for the relief of mandatory injunction and permanent injunction, wherein the present respondent has been shown as defendant.

It is averred in the plaint that the plaintiff and the defendant are brothers and they are the sons of one Kalianna Gounder. The plaintiff, the defendant, their brothers and their father had entered into an written Registered Partition Deed on 11.06.1976 in respect of their family properties. In the said partition, ''D'' schedule properties mentioned in the said Partition Deed were allotted to the plaintiff. The 1st item of ''D'' schedule property in the partition deed is the suit ''A'' schedule property. From the date of partition, the plaintiff has been in possession and enjoyment of the suit ''A'' schedule properties by paying kists to the Government. After partition, the plaintiff has dug-up a well in the suit ''B'' schedule property i.e. in S.F.No.406 and a small portion in S.F.No.449 i.e., in poramboke, on his own earnings and savings. The well in S.F.No.406 and a small portion in S.F. No.449 is the suit B schedule property. The suit B schedule property is the part of the suit ''A'' schedule property and the plaintiff applied for electricity service connection and obtained service connection bearing No.312. In the said partition, the defendant was allotted with certain properties and the defendant being the elder brother of the plaintiff has requested the plaintiff to install a electric motor in the well situate in the suit B schedule property so as to irrigate his properties and the plaintiff allowed the defendant to install the electric motor in his exclusive well in the suit B schedule property with a condition to remove the same whenever the plaintiff demanded. Accordingly, the defendant obtained electric service connection No.343 and the plaintiff''s service connection number is 312. As the water in the above said well is not sufficient to irrigate the lands of the both the plaintiff as well as the defendant and as the plaintiff''s cultivable land is excessive, the plaintiff requested the defendant to remove the electric motor installed by him in the suit B schedule property. Being aggrieved by the same, the defendant began to start the illegal acts against the plaintiff and thereby, he has refused to remove the electric motor installed by him. The defendant has no right over the suit B schedule property, which is the exclusive property of the plaintiff and there is no dispute regarding the suit A schedule property and the dispute is only with regard to suit B schedule well alone. On 19.09.1999 the defendant along with their men made an unlawful attempt to prevent the plaintiff from taking water in the suit B schedule property and refused to remove the electric motor installed by him therein. Hence, The plaintiff has filed the suit for mandatory injunction and permanent injunction.

In the written statement filed on the side of the defendant, it is averred as follows:- The suit is not maintainable and the plaintiff is not entitled to any relief as prayed for in the plaint. It is true that on 11.06.1976 the plaintiff, defendant and their brother and their father have entered into a registered partition. But the plaintiff has not properly set out the terms and the description of the property correctly and he has given a twist to the terms and the description of the property allotted to the plaintiff and the defendant and he is emboldened to make a false claim with regard to the common well belonging to both parties. The suit well belongs to the plaintiff and the defendant in common and they are irrigating their respective portion that has been allotted to them in the partition, by taking water by installing a separate electric motor. It is false to state that after partition the plaintiff has dug up the suit well in the B schedule property in S.F. No.406 and a small portion in S.F. No.449 out of his own earnings. Even at the time of the partition, the suit well was in existence and it exists till today. In view of certain inadvertent mistake occurred in respect of the survey field in the partition, the plaintiff has come forward with a false case in respect of the suit well, as if he is the exclusive owner of the same. It is false to state that on 19.09.1999 no such incident had taken place as alleged by the plaintiff. As the defendant is also a co-owner with regard to B schedule well, the suit as such for permanent injunction will not lie against the other co-owner. The plaintiff, being a party to the partition deed, dated 11.06.1976, he is bound by the said document and he is estopped from questioning the defendant''s right in respect of the suit B schedule well. Since, the plaintiff attempted to take water to his some other land, which was not under the ayacut of the suit well and for the same, the defendant had raised objection, the plaintiff has filed the suit falsely claiming exclusive ownership over the suit well. Since, the defendant denied the exclusive title over the B schedule property, the claim for mandatory relief is not maintainable without the prayer for declaration. Hence, prayed for the dismissal of the suit.

The trial court after considering the rival evidence adduced on either side has dismissed the suit. Against the judgment and decree passed by the trial court, the plaintiff as appellant has preferred A.S. No.58 of 2004 on the file of the first appellate court. The first appellate court after hearing both side and upon reappraising the evidence available on record has also dismissed the appeal and thereby confirmed the judgment and decree passed by the trial court in O.S. No.674 of 1999. Against the judgment and decree passed by the courts below, this second appeal has been preferred at the instance of the plaintiff as appellant.

At the time of admitting the present second appeal, the following substantial question of law has been formulated for consideration:-

Whether the courts below erred in considering the oral evidence contrary to Ex.A1, a written Partition Deed and whether it is against the rule contemplated under section 91 of the Evidence Act?

Before going into the merits of the case, it is very useful to narrate the admitted facts of this case.

It is admitted that the appellant/plaintiff and respondent/defendant are brothers that there was a partition in the family and both the appellant/plaintiff and the respondent/defendant and other family members partitioned their family properties by a registered Partition Deed, which has been marked as Ex.A1. As per Partition Deed (Ex.A1), it was accepted by both parties that they have to enjoy the properties allotted to them respectively and the appellant/plaintiff paid tax for his land enjoyed by him, which were marked as Exs.A2 to A4.

Further, it is admitted by both parties that the Commissioner, after giving notice to both parties, visited the suit property and submitted a report, surveyor sketch and plan, which were marked as Exs.C1 to C3 and the Xerox copy of the survey field map and sketch with regard to Survey Nos.406 and 449 were marked as Exs.X1 and X2.

The learned counsel for the appellant/plaintiff has argued that as per the Partition Deed, there was no well in Survey No.406 and the well is situated in survey No.449 alone in a dilapidated condition at the time of partition and subsequently, the well was closed and only symptom alone is there and the appellant/plaintiff by spending his own money has dug up a well in survey No.406 and in a small portion in survey No.449 and the appellant/plaintiff has given permission to the respondent/defendant to take water for his land by installing electric service connection and the appellant/plaintiff had not objection for the same and when, dispute arose between them, the appellant/plaintiff asked the respondent/defendant to remove the electricity service connection situated in survey No.406, which is the well owned by the appellant/plaintiff alone, but the respondent/defendant has refused for the same and therefore, considering the above facts and circumstances, both the courts below ought to have decreed the suit as prayed for by the appellant/plaintiff. But the courts below erred in dismissing the suit that the suit well is a common well and it was not dug up by the appellant/plaintiff by spending his own funds and therefore, the judgment and decree of the courts below are liable to be set aside and the present second appeal has to be allowed.

On the other hand, the learned counsel for the respondent/defendant argued that as per Partition Deed (Ex.A1), there was a well in survey No.446, which was commonly enjoyed by both the appellant/plaintiff and the respondent/defendant and it is false to state that the appellant/plaintiff has dug up a well in survey No.406 by spending his own funds and granted permission to the respondent/defendant to take water from the well therein. But both the courts below concurrently held that the well mentioned in the Partition Deed is situated in survey Nos.446 and 449, but in the Partition Deed, it was mentioned that the well is situated in survey No.449 alone and taking advantage of the omission in the Partition Deed, the appellant/plaintiff has stated that old well was closed and he has dug up a new well. But, both the courts below, after considering the evidence and the documents available on record, have corrected held that the well in question is a common well for all brothers and the appellant/plaintiff is not entitled to the relief as prayed for and therefore, the judgment and decree of the courts below are deserve to be confirmed and the second appeal has to be dismissed.

It is seen from the plaint filed by the appellant/plaintiff, it has been averred in para 6 that after partition, the appellant/plaintiff dug up a well in the suit B schedule property i.e., in S.F. No.406 and in a small portion in S.F.449 i.e., in promboke, on his own earnings and savings. But in the plaint, there is no specific averment by the appellant/plaintiff that when work to dug the well was started and when the work was completed and what was expenses for digging up a new well by the appellant/plaintiff and what were the expenses incurred for digging up the new well in survey Nos.406 and 449 were not stated in the plaint and the appellant/plaintiff has not produced any document to show that out of his own funds and savings, dug up a new well as stated in the plaint. P.W.1 stated in his cross examination, without mentioning what are the expenses spent for digging up a new well, he simply stated that Rs.19,000/- has been spent for digging up the well, but he has not produced any document for the same and the appellant/plaintiff has failed to prove that out of his own funds, he dug up a well in survey No.406 and in a small portion in Survey No.449.

According to the Commissioner''s report and survey plan, the well is in existence in Survey Nos.406 and in major portion in Survey No.449 also.

It is admitted by DW2 that the well is situated in between two survey numbers, a mark has been provided in both the survey numbers. So, as per Exs.X1 and X2 and the Commissioner''s report, there was a well situated in Survey Nos.406 and 449.

In this case, the Advocate Commissioner was examined as DW3 and in his evidence, she has stated that:-

"fpzW ,Ue;jjw;fhd mj;njh. milahsnkh vd;dplk; fhz;gpf;ftpy;iy/ fpzW ,Ue;jjhf fhz;gpf;fg;gl;l gFjp ,uz;L rh;nt vz;fspy; tuToa gFjpjhd; vd;W fhz;gpj;jhh;fs;"

On the side of the appellant/plaintiff, it is argued that the appellant/plaintiff alone has permitted the respondent/defendant to install the electrical service connection and the field map and test report of the Tamil Nadu Electricity Board, Trichy, have been produced by the appellant/plaintiff in the second appeal and even after going through the application filed by the respondent/defendant for getting electricity connection, the respondent/defendant applied for electricity connection, but the appellant/plaintiff is one of the witness in the said application. So, this Court can easily come to the conclusion that the respondent/defendant has applied service connection, without permission from the plaintiff and got the service connection number 343. The appellant/plaintiff service connection number is 312.

Further, when the second appeal is pending, M.P.(MD)No.1 of 2012 was filed by the appellant/plaintiff to receive the additional documents. In this case, the documents were given by the Electricity Board and the genuineness of the documents cannot be questioned by the respondent/defendant and the documents produced are the field map and Test Report for the service connection of the respondent/defendant. On perusing the document, test report can be marked as additional document, but field map was issued only by V.A.O., not by Tahsildar. Therefore, the test report is marked as Ex.A5 on the side of the appellant/plaintiff and accordingly, M.P.(MD)No.1 of 2012 filed by the appellant/plaintiff is ordered accordingly.

Even though, the appellant/plaintiff has produced a copy of the application submitted by the defendant seeking for service connection, he has not produced the test report and application for his own service connection 312. So the, respondent/defendant herein himself applied for service connection of his own and got service connection and the appellant/plaintiff is the attesting witness alone in the said document and there was no service connection for the original well mentioned in the Partition Deed. But both the parties applied for service connection for the well within a short period and obtained service connection. From the above facts, it cannot confer or presume that the well belongs to the appellant/plaintiff alone and the appellant/plaintiff given permission to install the service connection to the respondent/defendant. So the arguments of the appellant/plaintiff that the well belonged to the appellant/plaintiff alone and he has given permission to the respondent/defendant to get service connection is not at all hold good and in the survey sketch and plan, there is no clear and specific mark that the well is within Survey Nos.406 and 449 and therefore, there is no need to give importance to those documents.

Further, the appellant/plaintiff in support of his case, has produced additional document in the second appeal stage, will not in anyway support the case of the appellant/plaintiff. So from any angle, it could be easily come to the conclusion that both the courts below have correctly held that no new well dug up by the appellant/plaintiff. Therefore, it is made clear from the partition deed and the evidence of both oral and documentary that the common well is situated in Survey Nos.406 and 446 and it was omitted to mention both survey numbers in the Partition Deed and therefore, appellant/plaintiff cannot take advantage of the omission in the Partition Deed and claim that he alone has right in the well situated in survey Nos.406 and 449.

This court is of the considered view that there is no illegality or infirmity in the judgment and decree of the courts below and no need to interfere with the judgment and decree of the Courts below and the second appeal is liable to be dismissed.

Accordingly, the first substantial question of law is answered.

In the result, the second appeal is dismissed. M.P(MD)No.1 of 2012 test report is marked document as Ex.A.5. Consequently, connected Miscellaneous Petition is closed. No costs.