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MARIA MICHEAL versus JOSEPH

High Court of Madras

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Maria Micheal v. Joseph - S.A.No.130 of 1997 [2007] RD-TN 1818 (7 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 07/06/2007

CORAM:

THE HONOURABLE MR.JUSTICE G.RAJASURIA

S.A.No.130 of 1997

1.Maria Micheal

2.Savarimuthu alias Balu .. Appellants

Plaintiffs Vs

1.Joseph

2.Maria Arokiam .. Respondent Defendants Prayer

Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 24.09.1996 made in A.S.No.31 of 1996, on the file of the learned Subordinate Judge, Sivaganga, in reversing the judgment and decree dated 13.03.1996 made in O.S.No.41 of 1992 on the file of the District Munsif Court, Manamadurai.

For Appellants : Mr.K.Govindarajan

For Respondents : No representation.

:JUDGMENT



This second appeal is focussed as against the judgment and decree dated 24.09.1996 made in A.S.No.31 of 1996 reversing the judgment and decree of the trial Court dated 13.03.1996 made in O.S.No.41 of 1992 on the file of the District Munsif Court, Manamadurai.

2. The facts giving rise to the filing of this second appeal as stood exposited from the plaint could be pithily stated to the effect that the plaintiffs laid the suit channel on the Government land and taking water from their well to their one other part of the land for the past about twenty years anterior to the filing of the suit. However, the defendants without any manner of right, are interfering with it. Hence, the suit.

3. Per contra, challenging and impugning the averments/allegations in the plaint, the defendants filed the written statement, that the defendants are having the right to take water through that channel to their land and that it is a Government channel. Over and above that, the defendants also raised the issue that the suit is bad for non-joinder of necessary party namely, the Government and accordingly, they prayed for the dismissal of this second appeal.

4. Ultimately, the trial Court decreed the suit and granted injunction.

5. As against which, the defendants preferred the first appeal, which was allowed by the appellate Court reversing the judgment and decree of the trial Court and the original suit was dismissed.

6. Being aggrieved by and dissatisfied with, such judgment and decree of the first appellate Court, the second appeal has been filed on the following main grounds among others:

The trial Court merely based on Ex.B.2, issued by the District Revenue Officer, simply set aside the judgment and decree of the trial Court which was based on proper appreciation of facts and law. The first appellate Court failed to take into account the continuous possession of the channel by the second appellants herein, the plaintiffs. Accordingly, they prayed for setting aside the judgment and decree of the first appellate Court and for reviving the judgment and decree of the trial Court.

7. My learned Predecessor framed the following substantial question of law:

"Whether the lower appellate Court was correct in reversing the judgment and decree of the trial Court and dismissing the suit on the basis of Ex.B.2, order passed by the D.R.O, Sivaganga, which order is meant for one basic year only?"

8. Heard the learned Counsel for the appellants in entirety. The learned Counsel for the respondents is absent.

9. The learned Counsel for the appellants would advance his argument to the effect that even though the land belongs to the Government, yet even twenty years anterior to the filing of the suit, the plaintiff laid the channel so as to take water from his well situated in his area through that channel to his one other land, that the defendants are having no manner of right to interfere with that by taking water through the same channel and that Ex.B.2 alone, cannot be the decisive factor to adjudicate the lis.

10. Perused the entire records.

11. Indubitably and admittedly, the land over which the Channel runs, belongs to the Government. The dispute is as to whether the plaintiffs have exclusive right to take water from their well in their land through that channel on the Government land, to their one other land and in such a case, I am of the considered opinion that the Government should have been added as a proper party, but it was not done so. When the facts are to the effect that the Government is the owner of the land over which the channel runs, it is not known as to how the plaintiffs could claim exclusive right over it.

12. Ex.B.2 is an order passed by the revenue authority only for the purpose of enabling the parties to amicably enjoy the channel and that the order concludes by stating that there should be compromise talk between the rival parties so as to arrive at an everlasting solution. In view of my discussion supra, the appellants/plaintiffs are having no right to challenge such an order in view of the Government being the owner of the land on which the channel runs. As such, it is clear that the first appellate Court adverting to the finding that the land belongs to the Government held that the plaintiffs were not justified in claiming exclusive right over the channel to the exclusion of the defendants.

13. The learned Counsel for the second appellants would pray that if the matter is referred to the Mediation, then both the parties would be benefited. It is open for the second appellants to approach the Mediation Centre and pray for amicable settlement.

14. So far as, this second appeal is concerned, in view of my discussion supra, there is no substance in it and accordingly, the second appeal is dismissed. However, in the facts and circumstances of the case, there is no order as to costs.

rsb

To

1.The Subordinate Judge, Sivaganga.

2.The District Munsif Court, Manamadurai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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