1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL(MD)No.164 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.Kaliappa Nadar 2.Ganesan 3.Balasubramanian .. Appellants/Defendants Vs. 1.Thangamani 2.Jeyalakshmi 3.Saradha 4.Nagajothi .. Respondents/Plaintiffs Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 21.09.2010 passed in Appeal Suit No.54 of 2006 by the Additional Sub Court, Dindigul reversing the Judgment and decree dated 13.03.2006 passed in Original Suit No.324 of 1997 by the District Munsif cum Judicial Magistrate's Court, Vedasanthur. For Appellants : Mr.R.Ramadurai For Respondents: Mr.S.Harihara Ramachandran JUDGMENT The Judgment and decree dated 21.09.2010 passed in Appeal Suit No.54 of 2006 by the Additional Sub Court, Dindigul are being challenged in the present second appeal. 2. The respondents herein as plaintiffs have instituted Original Suit No.324 of 1997 on the file of the District Munsif cum Judicial Magistrate's Court, Vedasanthur for the reliefs of mandatory injunction and also for damages to the tune of Rs.10,000/-, wherein the present appellants have been shown as defendants. 3. In the plaint it is averred that the first plaintiff is the widow of Krishnasamy. The plaintiffs 2 to 4 are her children. The first defendant is the father of the defendants 2 and 3. The properties described in the schedule are ancestral properties of Krishnasamy and he passed away on 13.09.1998 leaving behind him the present plaintiffs as his legal heirs. A well is situate in Survey No.367/2. All the lands, which have been coloured in green in the plaint plan are being irrigated through irrigation channel, which has been shown as 'X Y' in the plaint plan. The defendants have asked the plaintiffs to sell their land comprised in Survey No.575/1B. The plaintiffs have refused to consider the demand made by the defendants. Under the said circumstances, the defendants have illegally obliterated the irrigation channel on 20.11.1997. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. https://hcservices.ecourts.gov.in/hcservices/ 2 4. In the written statement filed on the side of the defendants, it is averred that the first defendant has purchased his property under a registered sale deed dated 06.10.1997. It is true that there is a well in Survey No.367/2. But it is false to say that the defendants have obliterated the channel mentioned in the plaint. The alleged channel is passing through Survey No.367/3, which belongs to one Paramasivam and he has not been impleaded in the present suit and therefore the present suit is bad for non-joinder of necessary party. There is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiffs as appellants have preferred Appeal Suit No.54 of 2006 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal in part and thereby decreed the suit with regard to the relief of mandatory injunction. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the defendants as appellants. 7. As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 8. On the side of the appellants/ defendants, the following substantial questions of law have been raised for consideration: a) Whether the suit is bad for non-joinder of necessary party? b) Whether the suit for mandatory injunction will lie against the third party, when actual owner was not arrayed as the party? c) Whether the suit is maintainable especially, when the plaintiff has not claimed any of right of easement? 9. Before perpending the rival submissions made on either side, the Court has to look into the juxtaposition of the alleged irrigation channel and also its surrounding properties. 10. In the trial Court, an Advocate Commissioner has been appointed and he inspected the suit property and its adjoining properties and filed his Report and Plan, which have been marked as Exs.C.1 and C.2. In Ex.C.2, it is clearly mentioned that in Survey No.367/2, a well is situate. From the said well an irrigation channel is passing through Survey Nos.367/3 and 367/4 and subsequently it goes towards northern side. The property of the defendants is comprised in Survey No.369 and the same is situate immediately on the southern side of the points 'X Y'. https://hcservices.ecourts.gov.in/hcservices/ 3 11. The contention of the plaintiffs is that from points 'X Y' an irrigation channel has existed and the defendants have illegally obliterated the same and under the said circumstances, the present suit has been filed. 12. The defence taken on the side of the defendants is that a well is situate in Survey No.367/2, wherein an irrigation channel emanates and passes through Survey Nos.367/3 and 367/4 and subsequently it goes towards northern side and further the defendants have not obliterated the alleged irrigation channel at any point of time. 13. The learned counsel appearing for the appellants/defendants has repeatedly contended that in the instant case, no acceptable evidence has been forthcoming on the side of the plaintiffs so as to prove the obliteration alleged to have been made by the defendants and the trial Court has rightly dismissed the suit, but the first appellate Court has erroneously decreed the suit in part in respect of the relief of mandatory injunction and further P.W.1 has clearly admitted in her evidence that an alternative channel is in existence and therefore the Judgment and decree passed by the first appellate Court are liable to be interfered with. 14. The learned counsel appearing for the respondents/plaintiffs has also equally contended that prior to filing of the suit the defendants have obliterated the irrigation channel which existed in between points 'X Y' and due to that the present suit has been filed and immediately an Advocate Commissioner has been appointed and he inspected the suit channel and its adjoining properties and he filed his Report and Plan and the same have been marked as Exs.C.1 and C.2 and in Ex.C.1, it has been clearly mentioned that from points 'X Y' paddy saplings have been transplanted and the first appellate Court after considering the materials found in Ex.C.1 has rightly decreed the suit in respect of the relief of mandatory injunction and therefore the Judgment and decree passed by the first appellate Court do not warrant interference. 15. The plaintiffs have filed the present suit stating that the defendants have obliterated the channel in question in between points 'X Y'. It is stated on the side of the plaintiffs that after obliteration a police complaint has been given. But a copy of the same has not been marked except the receipt given by the concerned Police Station (Ex.A.7). Since on the side of the plaintiffs, no copy of police complaint has been marked, the Court has to necessarily look into Ex.C.1. In Ex.C.1 at paragraph No.3, it is stated like thus: "The irrigation channel from the well is coloured blue in the sketch. The width of the channel is ranging from 2 feet to 2½ feet. Between the points marked 'X' and 'Y' in the sketch, the irrigation channel has been recently obliterated. Between the points marked 'X' and 'Y' in the Sketch paddy seedlings have been transplanted about a week ago". https://hcservices.ecourts.gov.in/hcservices/ 4 16. The present suit has been instituted on 25.07.1997. The Commissioner has visited the suit property on 27.11.1997. Considering the date of filing of the suit and also considering the date of visit of the Commissioner, the Court can very well accept the observations made in Ex.C.1. 17. As stated earlier, immediately on the southern side of the points 'X Y', the property of the defendants is situate in Survey No.369. Except the defendants, nobody would have obliterated the channel in dispute and transplanted paddy saplings. 18. The trial Court without considering Ex.C.1 in a proper perspective has erroneously dismissed the suit. But the first appellate Court after considering Ex.C.1 properly has rightly decreed the suit in respect of the relief of mandatory injunction. In view of the discussion made earlier, this Court has not found any error in the Judgment and decree passed by the first appellate Court and further the substantial questions of law raised in the present second appeal are not having substance at all and altogether the present second appeal deserves to be dismissed. 19. In fine, this second appeal deserves dismissal and accordingly is dismissed without costs at the stage of admission. The Judgment and decree passed in Appeal Suit No.54 of 2006 by the Additional Sub Court, Dindigul are confirmed. Consequently, connected Miscellaneous Petition is dismissed. Sd/- Assistant Registrar(AS) /TRUE COPY/ Sub Assistant Registrar To 1.The Additional Subordinate Judge, Dindigul. 2.The District Munsif cum Judicial Magistrate, Vedasanthur. +1cc to Mr.R.Ramadurai, Advocate SR.No.19813 +1cc to Mr.S.Harihara Ramachandran, Advocate SR.No.19639 S.A(MD)No.164 of 2011 and M.P(MD)No.1 of 2011 23.06.2011 smn PA/08.08.2011/4P/5C https://hcservices.ecourts.gov.in/hcservices/