Durairaju vs Natesan

Maheswaran, J.—The defendant is the appellant. The suit out of which this second appeal arises has been filed by the plaintiff for a

permanent injunction restraining the defendant from interfering with his right to use the motor pumpset installed in the suit well and for recovery of

possession of a channel shaded red in the plaint plan and for a mandatory injunction to restore the channel to its original length of three feet. The

plaintiff and the defendant are brothers. There was another brother, one Kaliaperumal. These brothers had properties in two villages, namely,

Thirani and Thiranipalayam. The lands in Thirani were allotted to the share of Kaliaperumal and the properties in Thiraniapalayam were divided

between the plaintiff and the defendant. There is a well in Survey No. 229/ 5A and 5B which is the only source of irrigation for the plaintiff and the

defendant in Thiranipalayam village. A motor pumpset has been installed in the said well. According to the plaintiff, even during the lifetime Of their

father, the well and the pumpset were Common properties. The plaint averred that the defendant is trying to obstruct the plaintiff from irrigating his

lands by using the motor pumpset and therefore he has filed the suit for injunction. It is also averred that the defendant closed the channel passing

through the middle of Survey Field No. 229/3A belonging to the defendant rendering it impossible to irrigate the plaintiff''s land in survey No.

229/9. The Plaintiff prayed for restoration of that channel by a mandatory injunction and also for possession of the Channel. The defendant resisted

the suit on the ground that the motor pumpset is his exclusive properly as he has purchased it from one Rajagopal Reddy and also stated that the

plaintiff did not contribute any amount.

The trial court found that the motor pumpset is common to both the plaintiff and the defendant and that the defendant and the plaintiff have not

contributed and that the plaintiff has also been using the pumpset for irrigation of his land and the defendant has obliterated the channel and that the

plaintiff is entitled to the relief of possession and mandatory injunction and decreed the suit as prayed for. The learned appellate Judge in appeal,

allowed the appeal in part and modified the decree to the following terms :

The decree and judgment of the lower court is modified to the extent that instead of recovery of possession of suit 2nd item the respondent-plaintiff

will be entitled to irrigate his field through the suit channel and the relief of recovery of possession of suit item 2 is accordingly denied. In other

respects, the decree of the lower court is confirmed and the appeal dismissed. The cross appeal is also dismissed.

The defendant has filed this second appeal challenging the correctness of the judgment and decree of the appellate Court.

A learned Judge of this court who admitted the second appeal has formulated the following substantial question of law :

Whether in law and in equity the plaintiff was entitled to get a decree for injunction unless and until he had contributed a half share in the total

expenditure in connection with the motor and pumpset, their installation, construction of a shed for housing them and purchase of accessories ?

The plaintiff and the defendant are brothers. The partition between them is admitted. The fact that the well in Survey Field No. 229/5A and 5B is

common is also admitted. The short question that now arises for consideration is whether the motor pumpset exclusively belongs to the appellant-

defendant. Before adverting to that question, I must point out that the decree of the appellate Court granting a right to the plaintiff to irrigate his

lands through the suit channel and denying the relief of possession of suit item 2, has not been challenged by the plaintiff in cross objection or cross

appeal and that has become final. As regards the ownership of the motor pumpset, the appellate court has clearly found that the plaintiff did not

advance even a single pie for the purchase of the motor pumpset. The appellate Court also observed that ""the plea of contribution made by the

plaintiff is a cock and bull story"". Though the plaintiff has stated that he contributed a sum of Rs. 2,500 he has not produced any document to

prove that be has contributed. On the other hand, Exs. B1 to B3 would show that it was the defendant who paid towards the discharge of loan for

the purchase of the motor pumpset.

The appellate Court also found that the accessories for installation of the motor pumpset have also been purchased by the defendant as evidenced

by Exs.B4 to B30. There is clear evidence that the motor pump-set has been purchased only by the defendant. But however, the lower appellate

Court holds that the right of the plaintiff is to institute a suit for contribution and he cannot resist the suit of the plaintiff for an injunction. This view of

the learned appellate Judge, according to the learned counsel for the appellant, Mr. K. Sampath, is wrong. He invited my attention to certain

observations of the appellate Judge and says that in paragraph 12 of the Judgment, the appellate Court holds that the right of the plaintiff is to

institute a suit for contribution and he cannot resist the suit of the plaintiff for an injunction. This view of the learned appellate Judge, according to

learned counsel for the appellant, Mr. K. Sampath, is wrong. He invited my attention to certain observations of the appellate Judge any says that in

paragraph 12 of the Judgment, the appellate Judge has stated that the plaintiff has not come with clean hands to the Court as he pleaded at first

instance that he paid his contribution, but later deposed that he is prepared to pay the contribution, which would show that he has not paid his

contribution"". He replied upon certain observations of the learned author J.R. Lewis in the ""Outlines of Equity"", 1968 Edition, at page 20, under the

heading, ''He who comes to equity must come with clean hands"" which run thus:

The maxim noted above is concerned with the conduct of the plaintiff at the time he brings his action; the maxim here discussed demands that the

plaintiff must show rot only that his conduct is reasonable at the present time but also that his conscience is clear as to his past conduct. The maxim

above thus refers to present and future conduct.

My attention was also invited to certain observations of the Full Bench of this Court in Seeni Chettiar v. Santhanathan Chettiar ILR 20 Mad. 58 at

page 67 The following are the observations:

For another reason also the case is one which falls under the comprehensive rule embodied in clause (j) of S.56 of the Specific Relief Act. That

rule on the maxim that he who seeks equity must do equity and implies that a plaintiff seeking an injunction must come with clean hands With

reference to this point, it is laid down in Kerr on Injunctions, on the authority of the case therein cited, that a plaintiff, who asks for an injunction,

must be able to satisfy the court that his own acts and dealings in the matter have been fair and honest and free from any taint of fraud or (sic) and

that if, in his dealings with the person against whom he seeks relief or with third parties, he has acted in an unfair or in, equitable manner, he cannot

have relief (3rd edition page 16).

It should be noted that old S.56(j) of the Specific Relief Act corresponds to S.41(1) of the present Specific Relief Act, 1963 and it runs thus :

An injunction cannot be granted when the conduct of the plaintiff or his agent has been such as to disentitle him to the assistance of the court.

It is pointed out by the appellant that the respondent plaintiff who has not contributed any amount for the purchase of the motor pumpset has been

using the pumpset and has come to the court with a case that he has contributed Rs. 2,000 and odd for the purchase of the pumpset which he has

not done and it was found to be false by the court below and in such circumstances the plaintiff should not be granted an injunction, Learned

counsel appearing for the respondent says that his client has already staled in the box that he will contribute towards his share of the purchase

money. It is now agreed between the counsel for the respective parties that a sum of Rs. 2,000 shall be paid by the plaintiff to the defendant

towards his share of the cost of the motor pumpset. In the circumstances, there is no need to modify the decree except to this extent, namely, that

the respondent-plaintiff will use the motor pumpset as usual, but she would pay a sum of Rs. 2,000 (Rupees two thousand only) to the defendant

appellant within a period of three months from this date. The appeal is allowed in part to this extent and is dismissed in other respects. There will

be no order as to costs.