IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 6.10.2009 Coram: The Honourable Mr.Justice M.JAICHANDREN S.A.No.1625 of 1995 Velusamy Gounder .. Appellant/Plaintiff vs. 1. Palanisamy Gounder 2. Palanathal 3. Eswari 4. Ramasamy @ Velusamy .. Respondents/Defendants The Second Appeal has been filed against the judgment and decree, dated 6.10.1993, in A.S.No.48 of 1992, on the file of the Sub Court, Dharapuram, confirming the judgment and decree, dated 29.11.1991 made in O.S.No.90 of 1989 on the file of the District Munsif Court, Dharapuram. For Appellant : Mr.R.Asokan For Respondent : Mr.A.K.Sridharan for R1 J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 6.10.1993, made in A.S.No.48 of 1992, on the file of the Sub Court, Dharapuram, confirming the judgment and decree, dated 29.11.1991, made in O.S.No.90 of 1989, on the file of the District Munsif Court, Dharapuram. 2. The plaintiff in the suit, in O.S.No.90 of 1989, is the appellant in the present second appeal. The plaintiff had filed the suit, in O.S.No.90 of 1989, praying for the relief of declaration and for permanent injunction. 3. The plaintiff had claimed that a 5 H.P. Electric motor and pump set and other electrical equipments, the electricity service connection No.57, Pipe line, and A.1 well are the suit properties. The canal used for irrigation and the A.1 well, in S.F.No.850, with an extent of 1.23 acres, in Kuntadam village, Dharapuram Taluk, belong to the plaintiff. The plaintiff had claimed that the said items belonged to the plaintiff, by way of a partition amongst the members of the plaintiff's family. The plaintiff had also filed a sketch showing the A.1 and A.2 wells. The plaintiff had claimed 1/4th share in the A.1 well, based on the deed of partition. The remaining 3/4th share in the said well belonged to the mothers. However, due to https://hcservices.ecourts.gov.in/hcservices/ the possession and enjoyment of the remaining shares in the said well, the entire A.1 well belonged to the plaintiff. The A.2 well belonged to the plaintiff, entirely, as he had dug the said well and since he has been in enjoyment of the same. The 5 H.P motor in the A.1 well belonged only to the plaintiff. He has also been in enjoyment of the electricity service connection No.57. Accordingly, the defendants did not have any right, in respect of the electricity service connection No.57, the 5 H.P. motor and the pump set installed by the plaintiff, nor do they have any right, in respect of the A.1 and A.2 wells. The second defendant is the wife of the first defendant and the third defendant is the daughter of the defendants 1 and 2. The fourth defendant is the Husband of the third defendant. There is a well in 850C belonging to the plaintiff, as well as the defendants. The defendants have been asking the plaintiff to sell his share in 850C to the defendants. There has been a dispute between the plaintiff and the defendants, in respect of the land in survey No.850C, which is being irrigated by the Parambikulam Azhiyar project scheme, from the Azhiyar project. Therefore, there has been ill- feelings between the plaintiff and the defendants. In such circumstances, the defendants have been causing problems to the plaintiff, in respect of his peaceful possession and enjoyment of the suit properties. Hence, the plaintiff has preferred the suit, in O.S.No.90 of 1989. 4. In the written statement filed on behalf of the defendants, it has been stated that it is incorrect on the part of the plaintiff to state that there are two wells in the suit land, in survey No.850A, forming part of the suit properties. There has been only one well in the said property. Further, the first defendant is entitled to 1/12th share in the A1 well, as he had purchased the same from the legal heirs of one Subbaraya gounder, on 1.11.1971. Since then he has been in enjoyment of his share in the well and he has been pumping water and he has been irrigating the lands using the 5 H.P. electrical motor in the said well. The first defendant had also paid the electricity charges, in respect of the said electrical motor. The first defendant has been irrigating his land, in survey No.849, by using the 5 H.P. electricity motor in the A1 well. Due to the purchase of the 1/12th share in the well and due to his long and continuous possession and peaceful enjoyment of the electric motor for irrigating his land, in S.F.No.849, he has established his rights, contrary to the claims of the plaintiff. The first defendant does not have any knowledge about the partition deed mentioned by the plaintiff. The claim of the plaintiff that his mothers has a share in the well and that it had accrued to him by way of adverse possession, are false. Further, the claim of the plaintiff that he had obtained a separate electricity service connection in his name and that he had fixed an electric motor in the well and that he is in enjoyment of the same, are also false. The claims of the plaintiff that he had dug A2 well and that the defendants do not have any right in A1 well are incorrect. The statement of the plaintiff that there has been some https://hcservices.ecourts.gov.in/hcservices/ dispute between the plaintiff and the defendants with regard to the use of water from Parambikulam Azhiyar Project, is also incorrect. Further, the plaintiff has stated that it is also false to claim that the first defendant had asked the plaintiff to sell his 1/16th share, in S.F.No.850. Since the first defendant is having 1/12th share in A1 well and in respect of the 5 H.P. electricity motor, the claim of the plaintiff cannot be accepted. Further, there is no cause of action for the suit filed by the plaintiff. Hence, the suit filed by the plaintiff is to be dismissed with costs. 5. In view of the averments made in the plaint and in the written statement, the trial Court had framed the following issues for consideration: "1. Whether the plaintiff is entitled to the relief of declaration and for permanent injunction as prayed for in the suit? 2. what other reliefs, the plaintiff is entitled to?" 6. One Veluswamy Gounder has been examined as P.W.1. One Palaniswamy Gounder has been examined as D.W.1. Nine documents had been marked on behalf of the plaintiff, as Exhibits A.1 to A.9. Eight documents have been marked on behalf of the defendant as Exhibits B.1 to B.8. Four documents have been marked as Court documents. 7. Based on the contentions raised on behalf of the plaintiff, as well as the defendants and on considering the evidence available on record, the trial Court had declared that 1.33 acres, in S.F.No.855, belongs to the plaintiff. The trial Court had also declared that A.2 well also belongs to the plaintiff. Further, it was also declared that the electricity service connection No.57, the 5 H.P. Electric motor and pump set, the pipe line and other electrical equipments belong to the plaintiff. Consequently, the relief of permanent injunction had also been granted, in respect of the properties declared to be belonging to the plaintiff. However, the reliefs sought for, in respect of A1 well, in S.F.No.850A have been denied. 8. The trial Court had held that even though the plaintiff had claimed that he is entitled to 1/4th share in A1 well, and that his mothers are entitled to 3/4th share in the said well, in accordance with the 'C' schedule of the document, marked as Exhibit A.1, dated 20.7.1960, which is the partition deed, it had been accepted that there is no mention of the same in Exhibit A.1. However, since the mothers of the plaintiff had not been in enjoyment of their shares, in the well, the plaintiff has been in enjoyment of the entire A1 well, from the date of the settlement deed. Since there was no documentary evidence in support of such a claim made by the plaintiff, the trial Court had refused to believe the same. Further, https://hcservices.ecourts.gov.in/hcservices/ the trial Court had found that the mothers of the plaintiff were not parties in the suit. 9. It had also been found that the plaintiff had not been in a position to prove that his mothers were entitled to 3/4th share in the A1 well. The trial Court had also found that the first defendant is entitled to 1/12th share in A.1 well, in view of Exhibit A.1, A7 and A8. In view of the mortgage deed, dated 1.6.1928, marked as Exhibit B.7 and the sale deed, dated 13.6.1940, marked as B.8, the first defendant was found to be entitled to 1/12th share in the suit A.1 well. 10. The trial Court had further held that Exhibits B.7 and B.8, being registered documents, which were more than 30 years old and therefore, their evidentiary value have to be accepted. In such circumstances, the trial Court had held that the first defendant is entitled to 1/12th share in the suit A.1 well. 11. Even though it was claimed that the electricity connection No.57 and the 65 H.P. motor fixed in A1 well were belonging to the plaintiff and the defendants in common and that the first defendant had 1/5th share in them, it was not accepted by the trial Court. It was found that the first defendant had not refuted the claim of the plaintiff that he had signed as a witness in the application made by the plaintiff for the grant of electricity service connection No.57 in the name of the plaintiff. Since the first defendant had not taken any defence against such a claim of the plaintiff, the claim of the plaintiff is that the electricity service connection No.57 and the 5 H.P. motor belong to the plaintiff, exclusively, has to be accepted. The signature of the first defendant had been obtained in the electricity service connection application, fraudulently, has not been taken as defence in the written statement filed on behalf of the defendants. Further, the name of the plaintiff had been entered in the electricity meter card. The receipts for the payment of electricity charges, marked as Exhibits A.4 to A.8, are in the name of the plaintiff. The exhibits B.2 to B.6, marked on behalf of the first defendant, to show that the electricity charges had been paid by the first defendant do not show that the receipts are in respect of the electricity service connection No.57. From Exhibits A.5 to A.9, the trial Court had come to the conclusion that the electricity service connection No.57, the 5 H.P. electricity motor and other electrical equipments belong to the plaintiff, exclusively. 12. Aggrieved by the rejection of the claim of the plaintiff, in respect of A.1 well, by the judgment and decree of the trial court, dated 29.11.1991, made in O.S.No.90 of 1989, the plaintiff had preferred a first appeal on the file of the Sub Court, Dharapuram, in A.S.No.48 of 1992. https://hcservices.ecourts.gov.in/hcservices/ 13. The first appellate Court had framed the following point for consideration: "Whether the appeal is liable to be allowed?" 14. In view of the rival contentions and in view of the evidence available on record, the first appellate Court had come to the conclusion that the plaintiff, who is the appellant in the first appeal, had only 1/4th share in A.1 well. The first appellate Court had noted that the plaintiff had claimed 1/4th share in A.1. well, based on the partition deed, marked as Exhibit A.1. However, the plaintiff had claimed that his mothers, namely, Thangammal, Ammaniammal and Valliammal, had 3/4th share in the suit A.1 well. They were using the water from A.1 well to irrigate their lands in survey No.847 and 848. However, since they were not exercising their rights by utilising the water from the suit A.1 well and since the plaintiff was using the suit A.1 well, exclusively, since 20.7.1960, which was the date of the deed of the partition, marked as Exhibit A.1, he is entitled for the relief of declaration and permanent injunction, in respect of the suit A.1 well, to exclusion of the defendant. 15. The plaintiff had also claimed that the defendants were not using the suit A.1 well and therefore, the plaintiff, who has been in continuous possession and enjoyment of the suit in A.1. well, for a long time, has obtained the title to the said well, by adverse possession. 16. The first appellate Court had not accepted the claim made by the plaintiff, in view of the fact that the plaintiff had not supported his claims, either by oral or documentary evidence. Since the plaintiff could only show that he was entitled to 1/4th share of the suit A.1 well by way of the partition deed, dated 20.7.1960, marked as Exhibit A.1, he was not entitled to any further share in the said well. There was no evidence to show that he was in enjoyment of the entire well to the exclusion of the defendant. Further, the first appellate Court had found that the claim of the plaintiff that 3/4th share in the suit A.1 well had been assigned to his mothers for irrigating their lands, had not been proved. 17. The lower appellate Court had also come to the conclusion that the defendants in the suit, who are the respondents in the first appeal, were entitled to 1/12th share in the suit A.1, well based on Exhibits B.7 and B.8. In such circumstances, the first appellate Court had confirmed the findings of the trial Court, by its judgment and decree, dated 6.10.1993, made in A.S.No.48 of 1992. 18. Aggrieved by the said judgment and decree of the first appellate Court, dated 6.10.1993, the plaintiff in the suit, in O.S.No.90 of 1989, who is the appellant in the first appeal, in https://hcservices.ecourts.gov.in/hcservices/ A.S.No.48 of 1992, had preferred the present second appeal. The defendants in the suit are the respondents in the second appeal. 19. The second appeal had been admitted on the following substantial questions of law: "(1) Whether the plaintiff is exclusively entitled to the A.1 well by adverse possession? (2) Is not the plaintiff entitled to a decree as against the defendants in the suit in respect of the 11/12th share in the A.1 well when the defendant claim only 1/12th share in the A.1 well?" 20. The learned counsel appearing for the appellant had submitted that the Courts below had erred in declaring only 1/4th share in the suit A.1 well, in favour of the plaintiff. It was also contended that the Courts below had erred in placing reliance on Exhibits B.7 and B.8 to hold that the defendant had 1/12th share in the suit A.1 well, in spite of the fact that the defendants were not entitled to any share in the said well. Further, the Courts below had erroneously rejected the claim of the appellant that he is entitled to the suit A.1 well, by way of adverse possession. 21. Per contra, the learned counsel appearing for the respondent had submitted that the Courts below had rightly held that the appellant is entitled to only 1/12th share in the suit A.1 well, based on the partition deed, dated 20.7.1960, marked as Exhibit A.1. Since the defendants have been using the suit A.3 well, the plaintiff cannot claim that he is entitled to the entire well, by way of adverse possession. Exhibits B.7 and B.8 clearly show that the defendants had 1/12th share in the suit A.1 well. Further, the appellant has not been in a position to prove his claim, either by oral or documentary evidence. 22. In view of the contentions raised by the learned counsel appearing for the appellant and the learned counsel appearing for the respondent and on a perusal of the records available, this Court is of the considered view that the appellant had not shown sufficient cause or reason for this Court to interfere with the concurrent findings of the Courts below. 23. Both the trial Court, as well as the first appellate Court, had rightly come to the conclusion that the appellant is entitled to only 1/12th share in suit A.1 well, based on Exhibit A.1 partition deed, dated 20.7.1960. The appellant has not been in a position to substantiate his claim that he is entitled to the entire suit A.3 well, exclusively. The claim of the appellant is that the remaining 3/4th share in the suit A.1 well was in continuous possession and enjoyment, could not be proved, either by oral or documentary https://hcservices.ecourts.gov.in/hcservices/ evidence. On the contrary, the Courts below have found that the defendants were entitled to 1/12th share in A.1 sale, in view of Exhibits B.7 and B.8. Further, the appellant had not been in a position to prove that he is entitled to 11/12th share in the suit A.1 well. In such circumstances, the second appeal is liable to be dismissed. Hence, it is dismissed confirming the judgment and decree of the courts below. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To: 1. The Sub Judge, Dharapuram 2. The District Munsif, Dharapuram Copy to:The Section Officer, VR Section, High Court, Madras. S.A.No.1625 of 1995 PA(CO) sra 21.01.2010 https://hcservices.ecourts.gov.in/hcservices/