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2019 Supreme(Mad) 2778
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
R. PONGIAPPAN, J.
T.M. Subbiah and Ors. - Appellant
Versus
Athi V. Sathiah and Ors. - Respondent
S.A. Nos. 16 and 17 of 2001
Decided On : 20-08-2019
Advocate Appeared:
For the Appellant :A.L. Ganthimathi, Advocate
For the Respondent:M. Parameswari, Advocate for V. Maninarayanan, Advocate
Headnote:
Constitution Of India,1950 – Enquiry – Claim right - Appellants herein filed a suit as against the respondents on file of learned District seeking relief of permanent injunction restraining defendants/respondents from interfering with flow of water went through south - north and east-west channel and went up tank - Further for restraining defendants not to put up barrage in channel leads to tank - By judgment and decree District granted decree of permanent injunction restraining defendants from interfering with flow of water ran up to tank - Aggrieved over same defendants preferred an appeal before Subordinate Judge Subordinate Judge by judgment and decree had allowed appeal and set aside decree passed by the learned District Feeling aggrieved over same plaintiffs in suit are before this Court with present second appeal –Held, District Collector no contra evidence adduced on side of defendants - However as per recommended for blocking bund in tank said recommendation is nothing but opinion and same is not affected the right of party who claims right - Court only based on said recommendation letter has that existence is not proved by plaintiffs and hence there is no necessity for granting relief of permanent injunction said findings arrived at by first appellate Court is against the admission made by Government authority - Even though there was untoward incident was happened prior to filing of suit - Only because said reason Court are not in a position to deny right having by the parties - If said relief is not granted favour plaintiffs it amounts that Court fails enforce rights having by plaintiffs - In fact, in the judgment rendered by the first appellate Court it was identified that there was no existence of tank said reason is nothing but against case of Government authority Subordinate Judge came to the conclusion that documents marked on side of plaintiffs as are not admissible in evidences - In paragraph first appellate Court judgment said issue was decided and concluded that since those documents are not having any signature and seal of officer concerned there is no necessity to peruse said documents – In before trial Court order passed by Deputy was marked circumstances will clearly reveal that defendants are admitted said documents are genuine and original - Non-raising of objections by defendants is nothing but admission - As already stated in earlier paragraph our Honble Apex Court has also concluded evidentiary value of admission - But first appellate Court without seeing said aspect directly rejected said documents only for reason that signature is not available and also concluded appeals in favour of defendants - First appellate Court only on considering those documents came to the conclusion particularly about the existence tank and other tank Court opinion that are true and genuine documents - So reasons stated by first appellate Court for rejecting those documents cannot be accepted - Ultimately court of the opinion allowing the appeal filed by the defendants reason stated above is nothing but erroneous – Appeal allowed
JUDGMENT :
R. PONGIAPPAN, J.
1. These appeals are directed against the common Judgment and Decree dated 30.06.1999 passed in A.S. Nos. 7 and 10 of 1999 on the file of the learned Subordinate Judge, Devakottai.
S.A. No. 16 of 2000
2. Previously the appellants herein filed a suit as against the respondents, in O.S. No. 15 of 1998 on the file of learned District Munsif, Devakottai, seeking the relief of permanent injunction restraining the defendants/respondents from interfering with the flow of water went through south - north and east-west channel and went up to Pirambuvayal tank. Further for restraining the defendants not to put up the barrage in the channel leads to Pirambuvayal tank. By judgment and decree dated 08.12.1998, the learned District Munsif, Devakottai, granted the decree of permanent injunction restraining the defendants from interfering with the flow of water ran up to Pirambuvayal tank. Aggrieved over the same, the defendants 1 to 6 preferred an appeal before the learned Subordinate Judge, Devakottai in A.S. No. 10 of 1999. The learned Subordinate Judge, Devakottai, by judgment and decree dated 30.06.1999, had allowed the appeal and set aside the decree passed by the learned District Munsif, Devakottai. Feeling aggrieved over the same, the plaintiffs in the suit are before this Court with the present second appeal.
S.A. No. 17 of 2001
3. Before the trial Court the appellants in this appeal filed a suit as against the defendants in O.S. No. 15 of 1998 on the file of the learned District Munsif, Devakottai, seeking the relief of permanent injunction restraining the defendants from interfering with the flow of waste water came from Vellipatti, Kokaniyendal and Vemaniyendal in reaching Pirambuvayal tank. Further from restraining the defendants not to put up the barrage in the channel leads to Pirambuvayal tank. The learned District Munsif, Devakottai, by judgment and decree dated 08.12.1988, had allowed the suit in favour of the plaintiffs and passed the decree as prayed for.
4. Against the said findings, the defendants 1 to 6 preferred an appeal before the learned Subordinate Judge, Devakottai, in A.S. No. 7 of 1999 praying to set aside the decree granted by the learned District Munsif. The learned Subordinate Judge, by judgment and decree, dated 30.06.1999, allowed the appeal and set aside the decree passed by the learned District Munsif, Devakottai. Feeling aggrieved over the same, the appellants who are the plaintiffs in the suit are before this Court with the present second appeal.
5. For the sake of convenience, the parties are referred to as, as described before the trial Court.
6. The averments made in the plaint in O.S. No. 15 of 1998, in brief are as follows:-
(i) The suit has been filed by the plaintiffs for themselves and on behalf of the people, who are residing in Vellipatti and Kannuthope. There was a small tank situated in west of the Vellipatti in north south directions. On the eastern side of the said tank, an agricultural land measuring an extent of 60 acres belongs to the plaintiffs and others, are situated. The over flow water went to the Vemaniyendal tank through point 'D' as mentioned in the rough plan. Similarly in the Vemaniyendal tank there was a point mentioned as 'C' in the rough sketch, is available for draining the over flow water. Since the Vempaniyendal tank is having joint Ayyakattu, the waste water will come to Vellipatti to the point 'D'. Similarly the waste water has reached the Vellipatti small tank through point 'G' of the rough sketch. In the same way to the Vempaniyendal south lake through point 'C' and through point 'K' the waste water will reach the Vellipatti channel. In between the Vempaniyenthal south tank and Vellipatti north-south road there was no bund. From time immemorial, the waste water drained from the land of Vellipatti reached the Pirambuvayal small tank through Pirambu channel.
(ii) In the Prembu channel, the defendants are not having any rights and title. Since there wa
