S.A.(MD) No.779 of 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 15.12.2022

CORAM

THE HON'BLE Mr. JUSTICE B.PUGALENDHI

S.A(MD)No.779 of 2022

and C.M.P(MD)No.11836 of 2022

R.Iyaswamy Pandian

... Appellant/Appellant/Plaintiff

Vs.

1.S.I.P.Rajeswaran

2.R.P.Kannan

... Respondents/Respondents/Defendants

Prayer:- Second Appeal is filed under Section 100 of Civil Procedure Code

to set aside the judgment and decree dated 02.11.2018 passed in A.S.No.19

of 2018 on the file of the Principal Subordinate Judge, Nagercoil,

confirming the judgment and decree dated 18.01.2018 made in O.S.No.283

of 2014 on the file of the Principal District Munsif Court, Nagercoil.

For Appellant

:

Mr.G.Prabhu Rajadurai

For Respondents

:

Mr.G.Mohan Kumar

******

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S.A.(MD) No.779 of 2022

J U D G M E N T

This Second Appeal is filed by the plaintiff in O.S.No.283 of 2014

as against the concurrent findings of the courts below.

2. This appellant has filed the above suit in O.S.No.283 of 2014

for the relief of declaration that the appellant is having a right to draw water

from the well, borewell and pumpset situated in 'B' schedule property. He

also sought for an injunction restraining the respondents from obstructing

this appellant from drawing water from 'B' schedule property to 'A' schedule

property and for a declaration to declare that he is having a right of way

over 'C' schedule property to reach 'D' schedule property and also for a

injunction restraining the respondents from interfering with his right of way.

3. The suit was dismissed by the Principal District Munsif Court,

Nagercoil by its judgment and decree dated 18.01.2018 and the First Appeal

preferred by this appellant before the Principal Subordinate Court,

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S.A.(MD) No.779 of 2022

Nagercoil in A.S.No.19 of 2018 was also dismissed by its judgment and

decree dated 02.11.2018 and as against the concurrent findings, the present

Second Appeal is filed.

4. In this Second Appeal, the following substantial questions of

law have been raised:

i) Whether the courts below are correct in law in

dismissing the plaintiff's suit when it is clearly proved that the

properties in schedule A and B were previously lie as single unit

and though the well and pumpset in B schedule water drawn to

the coconut trees in A schedule and the plaintiff is having right

even after the segregation under Section 13 of the Indian

Eastment Act?

ii) Whether the Courts below are correct in law in

denying the easement right claimed by the plaintiff being the

dominant easement from the servient tenement when such right of

plaintiff is protected under Section 13 of the Easement Act?

iii) Whether the courts below are correct in law in

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S.A.(MD) No.779 of 2022

denying the right of drawing water from the B schedule through

the C schedule finding that the 'A' schedule already had a

borewell and such right does not exist?

5. The learned counsel for the appellant submits that the suit

schedule property consist of 3 schedules in Sy.No.83/10 of Agastheeswaram

Village, which are described as 'A', 'B' and 'C' schedules. 'A' schedule is

measuring 31.247 cents and 'B' schedule is measuring 41.241 cents and 'C'

schedule is measuring about length of 244 links and width of 9 links

pathway. By way of a settlement deed dated 06.05.2014, 'A' schedule

property was given to the share of the appellant and even before the

execution of settlement deed dated 06.05.2014, 'A' and 'B' schedule

properties were enjoyed jointly. The coconut trees standing in 'A' schedule

properties were irrigated through the well in 'B' schedule property. 'C'

schedule property is pathway from 'A' schedule property to 'B' schedule

property. Though by settlement deed dated 06.05.2014