1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.01.2012 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Rev Appl (MD) No.97 of 2011 P.Murugan .. Applicant/1st Respondent Vs. 1.Shanmuga Ramalingam .. 1st Respondent/Appellant 2.Avudaiyappan .. 2nd Respondent/2nd Respondent Review Application filed under section 114 of CPC and Order 47 Rule 1 of CPC against the Judgment and decree dated 21.06.2011 passed in S.A.No.376 of 1997 by this Court. Second Appeal filed against the Judgment and Decree dated 16.11.1996 passed in Appeal Suit No.71/1996 by the Additional Sub Court, Tirunelveli confirming the Judgment and Decree dated 18.07.1996 passed in Original Suit No.972/1989 by the District Munsif Court, Tirunelveli For Applicant : Mr.S.Meenakshisundaram For R – 1 : Mr.M.P.Senthil For R – 2 : No appearance ORDER This Review Application has been directed against the Judgment and decree dated 21.06.2011 passed in Second Appeal No.376 of 1997 by this Court. 2. The first respondent herein as plaintiff has instituted Original Suit No.972 of 1989 on the file of the trial Court for the reliefs of declaration and perpetual injunction, wherein the present review applicant and second respondent have been shown as defendants. 3. In the plaint it is averred that the suit property is nothing but a sewage channel and the same has been shown as 'abcd' in the plaint plan. The house of the plaintiff is situate immediately on the eastern side of the suit property. Likewise, the house of the first defendant is situate immediately on the eastern side of the suit property. The plaintiff is having exclusive right over the suit property so as to discharge filthy water from his house and now the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his right. Under the said circumstances, the present suit has been instituted so as to declare that the plaintiff is having exclusive right over the suit property and consequently restraining the defendants by means of permanent injunction from interfering with the peaceful possession and enjoyment of the plaintiff. 4. In the written statement filed on the side of the first defendant it is averred that the plaintiff is not having exclusive right over the suit property. The defendants are the owners of the suit property and they are entitled to discharge filthy water from their https://hcservices.ecourts.gov.in/hcservices/ 2 houses and 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 plaintiff as appellant has preferred Appeal Suit No.71 of 1996 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 dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, Second Appeal No.376 of 1997 has been preferred on the file of this Court. 7. After hearing arguments of both sides and upon reappraising the evidence available on record, this court has found that the suit property is a common property and in which, both parties are entitled to drain their filthy water without causing any obstruction and to that extent decreed the suit without cost. 8. In order to review the Judgment and decree passed by this Court, the present Review Application has been preferred at the instance of the first respondent/first defendant as review applicant. 9. The learned counsel appearing for the review applicant has strenuously contended that in the plaint the plaintiff has claimed easementary right over the suit property and the same has not been established and further the plaintiff is not entitled to get easementary right even by using the suit property for long time and the first defendant has purchased his property under Ex.B1 wherein no mention has been made with regard to suit property and this Court without considering the above factual as well as legal aspects, has erroneously found that the suit property is a common property and in which, both parties are having equal right for the purpose of draining filthy water and therefore, the Judgment and decree passed by this Court are liable to be reviewed. 10. As a repartee to the contention put forth on the side of the review applicant, the learned counsel appearing for the first respondent/plaintiff has contended that in between the predecessors in title of the plaintiff and first defendant an agreement has come into existence on 18.05.1980 in respect of the suit sewage channel and the plaintiff has purchased his property on 11.05.1980 and the same has been registered on 22.05.1980. Under the said circumstances, the plaintiff is having right over the suit property and further the Advocate Commissioner has also found the existence of suit property and further he observed that except the suit property, the plaintiff is not having any source so as to discharge filthy water from his house and therefore, the Judgment and decree passed by this Court are not liable to be interfered with. 11. Basing upon the divergent submissions made on either side, the Court has to look into as to whether the Judgment and decree passed by this Court in Second Appeal No.376 of 1997 are liable to be reviewed? https://hcservices.ecourts.gov.in/hcservices/ 3 12. In the plaint it has been stated that the plaintiff is having easementary right over the suit property. But in the relief, it is prayed that the plaintiff is having exclusive right over the same. Therefore, it goes without saying that the plaint does not proceed on the basis of alleged easementary right and the entire reliefs have been sought for only on the basis of alleged exclusive right of the plaintiff over the suit property. 13. The plaintiff has claimed his right over the suit property on the basis of Exs.A2 and A3. Ex.A2 is an agreement between the predecessors in title of the plaintiff and first defendant and the same has come into existence on 18.05.1980, wherein it has been clearly stipulated that the predecessor in title of the plaintiff is having right over the suit sewage channel for the purpose of discharging filthy water from his house. Even though the sale deed which stands in the name of the plaintiff has come into existence on 11.05.1980 and the same has been registered only on 22.05.1980. Since Ex.A2 has come into existence in between the predecessors in title of the plaintiff and first defendant, the Court cannot belittle the alleged right of the plaintiff over the suit property. 14. It is an admitted fact that 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. In the Commissioner's plan it has been clearly stated that the house of the plaintiff is situate on northern side and the house of the first defendant is situate immediately on the southern side of the house of the plaintiff. The bone of contention in the present suit is nothing but a sewage channel and the same is situate immediately on the western side of the house of the plaintiff. In fact, this Court has closely perused the Commissioner's report and plan, wherein the Commissioner has explicitly stated to the effect that the suit sewage channel is in existence. 15. Considering the materials found in the Commissioner's report and plan and also considering the existence of Ex.A2, this Court has found that the suit property is a common property, in which both parties can drain filthy water, even though the plaintiff has claimed exclusive right over the same. 16. At this juncture, the learned counsel appearing for the review applicant/first defendant has contended that immediately on the eastern side of the house of the first defendant a common pathway is situate, wherein so many pipe lines have been impedded and only through the same, the plaintiff and first defendant have discharged filthy water and therefore, the claim of the plaintiff cannot be accepted. 17. As stated earlier, in the Commissioner's report and plan it has been clearly stated that except the suit sewage channel no other place is available to the plaintiff so as to discharge filthy water from his house and further absolutely there is no indication to the effect that pipelines have been impedded in the alleged common pathway which situates immediately on the eastern side of the house of the first defendant. Therefore, the contentions urged on the side of the review applicant cannot be accepted. https://hcservices.ecourts.gov.in/hcservices/ 4 18. The learned counsel appearing for the review applicant has drawn the attention of the Court to the decision reported in AIR 1983 Allahabad 223 (Prabhu Narain Singh V. Ram Niranjan (deceased by L.Rs) and others), wherein it has been held that “drain water flowing from one's house over other person's land from twenty years would not create easement right. 19. In the instant case, it has already been pointed out that even in only place in the plaint it has been stated that the plaintiff is having easmentary right over the suit property. The entire plaint proceeds on the basis that the plaintiff is having exclusive right over the suit property. Even in the prayer, it is prayed to the effect that the plaintiff is having exclusive right over the same. Since the plaint does not proceed on the basis of alleged easmentary right over the suit property, the decision referred to supra cannot be attuned in the present case. 20. It has already been pointed out that after analysing the juxtaposition of the suit property as well as the houses of the plaintiff and first defendant and also on the basis of Ex.A2, this court has found that the suit property is a common property, in which both parties are having right to drain filthy water and therefore, this Court has not committed any mistake apparent on the face of the record. Under the said circumstances, the present Review Application is liable to be dismissed. 21. In fine, this Review Application deserves to be dismissed and accordingly is dismissed without cost. Sd/- Assistant Registrar (AE) /True Copy/ Sub Assistant Registrar TO 1.The Additional Subordinate Judge, Tirunelveli 2.The District Munsif, Tirunelveli +1cc to M/s.S.Meenakshi Sundaram, Advocate, SR.No.1756 mj GH : 30.01.2012 : 4p/4c order in Rev Appl (MD) No.97 of 2011 https://hcservices.ecourts.gov.in/hcservices/