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2012 Supreme(Mad) 46
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
Alagesan & Others
Versus
Ramanujam (Died) & Others
S.A. No. 1452 of 1996
Decided on : 03-01-2012
For the Petitioners:J. Muthiah for Sarvabhuman Associates, Advocates.
For the Respondents:R2 to R7 - Avinash Wadhwani for V. Raghavachari, Advocates.
The central legal point established in the judgment is the court's reliance on the Indian Easement Act, 1882, and the evidence presented to uphold the grant of injunctions in favor of the Respondent/Plaintiff.
Headnote:
Easement Rights - Dispute over water channel and land irrigation - Indian Easement Act, 1882, Section 2 - The court discussed the existence of a detailed channel, the right to destroy a portion of the channel, and the reliance on the Advocate Commissioner's report and plan. The court upheld the grant of permanent and mandatory injunction based on the evidence and confirmed the lower court's judgments.
Fact of the Case:
The Respondent/Plaintiff claimed that the Appellants/Defendants destroyed a portion of the channel through which water was irrigated to the suit property. The Trial Court granted permanent injunction and mandatory injunction in favor of the Respondent/Plaintiff. The First Appellate Court upheld the decision, leading to the Second Appeal before the present Court.
Finding of the Court:
The Court found that the Respondent/Plaintiff's claim regarding the destruction of the channel was acceptable based on the evidence presented. It upheld the grant of permanent and mandatory injunction by the lower courts.
Issues: The issues revolved around the existence of a detailed channel, the right to destroy a portion of the channel, and the reliance on the Advocate Commissioner's report and plan.
Ratio Decidendi: The Court relied on the Indian Easement Act, 1882, Section 2, and the evidence presented to uphold the grant of injunctions in favor of the Respondent/Plaintiff.
Final Decision: The Second Appeal was dismissed, confirming the judgments of the lower courts. The parties were left to bear their own costs.
1. The Appellants/Defendants have filed the present Second Appeal as against the Judgment and Decree dated 10.4.1996 in A.S. No.127 of 1994 passed by the Learned Principal District Judge, Villupuram.
2. The First Appellate Court viz., the Learned Principal District Judge, Villupuram, while delivering the Judgment in A.S. No.127 of 1994. dated 10.4.1996 (in the Appeal preferred by the Appellants/Defendants), has among other things observed that ‘it is to be accepted that as prayed for by the Respondent/Plaintiff in the Plaint in the suit land, as seen from the Commissioner’s Report, though AB Channel, the Arumpattu lake water flows and in the said channel, the Appellants/Defendants have destroyed the ‘DC portion’ and further, the water is not flowing to the land of the Respondent/Plaintiff and moreover, the appellants/Defendants in AB Channel have no right to destroy any portion’ and consequently, confirmed the Judgment and Decree of the Trial Court in regard to grant of the relief of mandatory injunction and permanent injunction and dismissed the Appeal with costs.
3. Earlier, in the main Suit before the Trial Court, Issues 1 to 5 have been framed for determination.
4. On behalf of the Respondent/Plaintiff, witnesses PW1 to PW4 have been examined and Ex.A.1 to Ex.A.3 have been marked. On the side of the Appellants/Defendants, witnesses DW1 to DW3 have been examined and Ex.B.1 to Ex.B.15 have been marked. However, Ex.C.1, Commissioner’s Report and Ex.C.2, Commissioner’s Plan, dated 2.3.1987, have been marked.
5. The Trial Court, on an appreciation of oral and documentary evidence available on record, has come to a resultant conclusion that ‘in the suit property though channel AB, the Respondent/Plaintiff has cultivated the land and further, it is held that the Appellants/Defendants have not spelt out any reason as to why they have destroyed the DC portion and accordingly, granted the relief of permanent injunction in favour of the Respondent/Plaintiff and furthermore, granted the relief of mandatory injunction and decreed the Suit with costs. It also granted two months’ time to execute the relief of mandatory injunction.
6. Feeling aggrieved against the Judgment and Decre3e of the Trial Court in O.S. No.34 of 1987, dated 15.2.1994, the Appellants/Defendants have projected A.S. No.127 of 1994 before the First Appellate Court viz., the Learned Principal District Judge, Villupuram, after contest, the Appeal filed by the Appellants/Defendants by upholding the Judgment and Decree of the Trial Court and dismissed the Appeal with costs.
7. Being dissatisfied against the Judgment and Decree of the First Appellate Court dated 10.4.1996 in A.S. No.127 of 1994, the Appellants/Defendants have preferred this Second Appeal before this Court.
8. At the time of admission of the Second Appeal, this Court has formulated the following substantial questions of law for determination.
“(1) Whether in law there could be a decree by picking loopholes in the evidence of the Defendants especially when the Plaintiff had failed to prove the claim made by him regarding the existence of a detailed channel in S.No.264, which is the land belonging to the Appellants?
(2) Whether the Courts below are correct in law in granting a decree by relying upon the report and plan filed by the Advocate Commissioner pursuant to an ex-parte order and the Plaintiff had not taken any steps to examine him as a witness to prove the report and plan?
(3) Have not the Court below committed a grave error in law in not non-suiting the Plaintiff by drawing an adverse inference against him for not producting the revenue records to prove the existence of a detailed channel as claimed by him?”
9. The Contentions, Discussions and Findings on substantial questions of law Nos.1 to 3: According to the Learned Counsel for the Appellants/Defendants, the Trial Court as well as the First Appellate Court have committed an error in granting the relief of permanent injunction and
