MOHAN RAJES Vs. M S P RAJAH

JUDGEMENT

(1.) THE above Second Appeal has been filed by the plaintiffs in O.S. No. 824/81 on the file of the District Munsif Court, Salem, who succeeded before the trial court, but have lost in the first appellate court, against the judgment and decree of the learned Subordinate Judge, Salem dated 30.6.1982 in A.S. No. 94/81 reversing the judgment and decree of the District Munsif, Salem, dated 31.8.1981 in O.S. No. 824/81. THE case of the plaintiffs before the courts below was that the plaintiffs are the owners of Mohannad Peak Estate, Yercaud, that there was an earlier litigation between the plaintiffs on the one hand and the defendants and the family members on the other hand in respect of various estates owned by them in common and suits were filed for partition and thereafter in O.S. No. 501/75, on the file of the Sub Court, Salem, a compromise final decree was passed in I.A. No. 399/77 on 23.3.1977 and that thereafter the plaintiffs were enjoying the whole of Mohannad Peak Estate without any let or hindrance and the defendants were enjoying likewise Carrara Estate as owners. THE case of the plaintiffs was that both parties arc bound by the various terms of the compromise embodied in the final decree, that there is a tank in Carrara Estate, the water from which could be and was being utilised for spraying and other purposes for the benefit of Mohannad Peak Estate also and to enable the plaintiffs to do so, a specific provision was made with reference to this right in clause 12 of the memorandum of compromise (clause 14 of the compromise decree) permitting the plaintiffs to continue to draw water through the existing 3" pipeline for spraying and other purposes from Carrara Tank which lies below the Carrara Estate Pump House. THE further claim of the plaintiffs was that they have been exercising these rights of the user of the tank water for the purpose of spraying etc., through the regular 3" pipes connected from the tank, that the defendants had no right to interfere with the said exercise of the right by the plaintiffs, but however the defendants were giving much trouble to the plaintiffs in enjoying the said right of the plaintiffs by the defendants' men coming to the border of Mohannad Peak Estate on 2.1.1978 to meddle with the pipeline so that the water cannot flow into Mohannad Peak Estate. Such attempts were said to have been thwarted and therefore the present suit came to be filed and numbered originally before the Sub Court, Salem as 1071/76 and thereafter due to the revision in the pecuniary jurisdiction of the Courts in the District level, the suit was transferred to the Court of the District Munsif at Salem and numbered as O.S. No. 824/81 and the relief of permanent injunction subsequently came to be amended as relief of mandatory injunction by virtue of the amendment ordered on 20.8.1979 in I.A. No. 245/79.

(2.) THE first defendant who represents the other defendant by means of Power of Attorney filed a written statement as also an additional written statement contending that clause 12 in the compromise memo and 14 in the compromise decree was brought about by fraud and misrepresentation as far as the right of drawing water in Mohannd Peak Estate was concerned and therefore, was not binding on the defendants, that there was no pipeline existing between the Carrara Tank and the Mohannad Peak Estate at the time of compromise and even before or after the compromise also, that on a misrepresentation by the plaintiffs that such a pipeline exists, the signature of the defendants were obtained in the compromise, that in view of the above factual position even subsequent to the compromise no water was taken at any time through the alleged pipelines since there was no such connecting pipe line between the Carrara tank and Mohannad Peak Estate. It was also contended that the alleged pipelines connecting Carrara tank and Mohannad Peak Estate were not in existence before the filing of the suit or before or after the Commissioner's visit and as per the Commissioner's plan and report, the pipelines found in existence at the time of Commissioner's visit were only to take water to the Estate of the defendants themselves and not to the plaintiffs' estate, and therefore, there was no question of disconnecting the said pipelines by the defendants since the fact remains that there was no such pipe line in existence at any time by connecting the Carrara tank to Mohannad Peak Estate. THE defendants also pleaded that the plaintiffs are not entitled to any mandatory injunction as prayed for.

(3.) AGGRIEVED the defendants filed an appeal origionally before the District Court, Salem in A.S. No. 201/81 which subsequently came to be transferred to the learned Subordinate Judge of Salem as A.S. No. 94/81 and disposed of by him as such. The learned Subordinate Judge also concurred with the trial judge to hold that the case of fraud and misrepresentation as vitiating the clause in question pleaded by the defendants was devoid of merit since the appellants have not chosen to take such a stand seriously in the appeal. As for the claim relating to the existence of the pipeline in question, the learned first appellate Judge disagreed from the findings of the trial judge and held that as on the date of suit there was no pipeline as such in existence connecting Mohannad Peak Estate with the tank in Carrara estate and water was not taken from Carrara tank to Mohannad Peak Estate. Learned Subordinate Judge was also of the view that even if the case of the plaintiffs that the defendants have meddled with the existing pipelines is true the plaintiffs cannot be granted any mandatory injunction since according to the learned judge the cause of action for the restoration of the tank was said to have arisen after the filing of the suit, and at any rate, even otherwise, the remedy of the plaintiffs is to ask for a declaration of their right and for restoration of the pipes not only on the basis of the compromise decree, but also by way of grant and in as much as this course of action has not been adopted by the plaintiffs, they cannot be granted even the relief of mandatory injunction, even though it is assumed that the defendants were responsible for the disconnection of the pipes. Further, the first appellate judge has held that the plaintiffs have not adduced any evidence at all to prove the allegations made in the plaint and they have not taken the witness stand to testify to the fact that on the date of suit viz., 4.9.1978 the pipe line existed and that they were enjoying the right of taking water from Carrara tank to the Mohannad Peak Estate. The absence of any oral evidence according to the first appellate judge to prove that only after receipt of the communication the disconnection was effected disentitled the plaintiffs to get the relief of mandatory injunction. Further infirmity in the judgment and decree of the trial court according to the first appellate court was that the decree has not been properly drafted and as it stood it was impracticable and unworkable in that in the absence of any direction to the defendants to restore the pipeline within a stipulated time so that beyond the period within which such restoration has to be effected consequential action can be taken, and the manner action to be taken in case of default by the defendants, so also according to the learned first appellate judge the mere mention of pipelines in the compromise decree will not be conclusive proof of the plaintiffs' case and therefore, he also came to the conclusion that the pipelines were not in existence on the date of the suit, and therefore, the plaintiffs were not entitled to an injunction as prayed for.