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Judgment
Thanikkachalam, J.—This revision is directed against the order passed in I.A. No. 793 of 1994 in A.S. No. 40 of 1991 on the file of Sub
Court, Devakottai. The appellants in A.S. No. 40 of 1991 are petitioners herein.
The petitioners filed O.S. No. 308 of 1990 in the Court of District Munsif for themselves and on behalf of the villagers of Kadampatti village
and Periyanavayal village, praying for a decree that they are entitled to the easmentary right of taking water from the northern sluice of
Jayankondam Kanmoi through S. Nos.13, 78, 77 to the Kandarampatty Kanmoi through S. No.13 and S. Nos. 130, 134 and 150 to 160
Periyannavayal Kanmoi ayacut and also restraining the respondent from in any manner interfering with the peaceful possession and enjoyment of
the water from Jayamkondam Kanmoi through the last sluice on the northern side irrigating the fields by the plaintiff. Though the trial court agreed
with the contentions of the plaintiff, did not grant any relief as prayed for by the plaintiffs because of technical defect in the pleadings. The State
through the Collector and Tahsildar, Karaikudi have been impleaded as defendants 1 and 2. Defendants 3 to 5 were impleaded themselves and on
behalf of Jayankondam village. The defendants filed their written statement, resisting the suit. The trial court held that the villages of Kandarampatti
and Periyanavayal have been irrigating the lands in the ayacut through the Jayankondam 4th sluice for the past several years. The trial court also
found that during the pendency of the suit the plaintiffs were drawing water from the said sluice and yield from the crops in all the villages was good
and that Jayamkondam village has not suffered by supply of water to the lands of the plaintiffs. The trial court held that no right of easement can be
claimed against the State. On this technical defect in the pleadings the suit was dismissed. Against the judgment and decree of the trial court the
plaintiffs preferred an appeal, A.S. No. 40 of 1991. In the first appellate court the plaintiffs have filed an application for amendment of the plaint
seeking relief on the basis of customary right instead of easmentary right. The application for amendment was allowed. By judgment and decree
dated 11.2.1992 the appeal was allowed as against the defendants 3 to 5 and dismissed the suit as against defendants 1 and 2. Aggrieved by the
judgment and decree, defendants 3 to 5 filed S.A. No. 317 of 1992 and the plaintiffs also preferred a second appeal against the said judgment and
decree in so far as the suit was dismissed against defendants 1 and 2. Respondents 3 to 5 ought for suspension of the decree of the lowerr
appellate court. The learned single Judge of this Court held that the plaintiffs are entitled to take water and dismissed the said petition. This Court in
the second appeal held that the order allowing the amendment cannot be sustained, and observed that in view of the technical defects in the
pleadings, the trial court should have asked for withdrawal of the suit and of file a fresh suit on the same cause of action. The second appeal was
allowed and the matter was remanded to the first appellate court for fresh disposal.
According to the petitioners herein they claimed relief on the ground of easement on the erroneous assumption that the customery right acquired
by them as an easmentary right. In the body of the plaint they have alleged establishment of their right as customary right. They claimed relief only
on the basis that for several years past they have been drawing water from the Jayamkondan Kanmai through the 4th sluice for irrigating their
lands. Evidence has been let in on this aspect and the parties also understood the nature of the case. According to the petitioners their case would
have been decreed by the trial court, but for the technical defect in the pleadings had they claimed the relief on the basis of customary right instead
of easementary right. It is only because of the formal defect they could not get the relief. This Court observed that they could have withdrawn the
suit with liberty to file a fresh suit on the same cause of action. The appellate court is not having ample jurisdiction to permit the petitioners to
withdraw the suit with liberty to file a fresh suit on the same cause of action. In view of the formal defect in the pleadings, the petitioners should be
permitted to withdraw the suit with liberty to institute a fresh suit in respect of the subject matter of the suit.
Learned Government Pleader appearing for State submitted that since the suit and the application were filed in representative capacity and
notice under Order 1, Rule 8(4), C.P.C. was not given by the petitioners herein in I.A. No. 793 of 1994, the first appellate court was correct in
dismissing the application for withdrawal of the suit. Therefore, the revision is liable to be dismissed in limine.
Learned Counsel appearing for the other respondents submitted that the petitioners herein filed I.A. No. 322 of 1991 on the file of the first
appellate court for amendment of the plaint by basing their claim on the customary right instead of easmentary right. This amendment application
and the first appeal were disposed of simultaneously by the first appellate court. Both the plaintiffs and the defendants filed their respective appeals
before this Court. This Court set aside the order passed in I.A. No. 322 of 1991 and remanded the first appeal for fresh disposal. When the
petitioners were not permitted to sue on the basis of customary right as per the order passed by this Court in an appeal preferred against I.A. No.
322 of 1991, it is not open to the petitioners herein to ask for permission to withdraw the suit claiming the relief on the basis of the easmentary right
so as to enable them to file a fresh suit on the same cause of action on the basis of customary right. According to the learned Counsel the order
passed by this Court in an appeal filed against the order passed in I.A. No. 322 of 1991 would operate as res judicata against the petitioners
herein in seeking permission to file a fresh suit on the same subject-matter for the relief on the basis of customary right. According to the learned
Counsel there is neither formal defect nor sufficient ground for the present case for seeking permission to withdraw the suit and to file a fresh suit
on the same subject matter under Order 23, Rule 1, C.P.C. It was therefore submitted that the revision is liable to be dismissed.
By way of reply, the learned Counsel appearing for the petitioners submitted that the petitioners have filed a petition under Order 23, Rule 1,
C.P.C. in a representative capacity and not under Order 1, Rule 8 and it is for the court to order notice by publication under Order 1, Rule 8(4)
even though the petitioners have not specifically asked for such notice. Inasmuch as the court failed to pass such an order of publication of notice
the order passed in I.A. No. 793 of 1994 should be set aside and the petition should be remanded back to the file of the first appellate court with
a direction to issue such notice as contemplated under Order 1, Rule 8(4) of C.P.C.
I have heard the rival submissions.
The fact remains that in A.S. No. 40 of 1991 the plaintiffs/petitioners filed I.A. No. 793 of 1994 under Order 23, Rule 1 for permission to
withdraw the suit with liberty to file a fresh suit on the same subject matter. In the affidavit filed in support of I.A. No. 793 of 1994, it was clearly
stated that the application was filed on behalf of the villagers of Kandarampatty and Periyannavayal. This application was dimissed by the first
appellate court. Under Order 23, Rule 1 permission to withdraw the suit can be allowed at any stage provided if there is any formal defect or when
the plaintiff-petitioner shows sufficient cause. Customary right and easementary right are two different concepts easementary right can be
established if the plaintiffs prove that they are in enjoyment of a particular right over their property for a period of 22 years. In the case of a
customary right, it must be proved that such custom was prevailing in the society from time immemorial and uninterrupted. Therefore, the relief
claimed on the basis of easementary right instead of customary right cannot be considered to be a formal defect. Again the relief as contemplated
under Order 23, Rule 1, C.P.C. can be granted if the plaintiffs show that there is sufficient cause for claiming relief on the basis of customary right.
Plaintiffs/petitioners has not shown sufficient cause for the petition filed under Order 23, Rule 1, C.P.C. The only cause shown by them is that in
the second appeal proceedings, this Court of observed that the plaintiffs would have been permitted to withdraw the suit already filed and file a
fresh suit on the same subject matter. Even the observation made by this Court is taken as the one permitting the plaintiffs to file a petition under
Order 23, Rule 1, C.P.C. even then it is for the plaintiffs/petitioners to prove that there is a formal defect or sufficient cause for permitting the
plaintiffs/petitioners to withdraw the suit and file a fresh suit on the same subject-matter.
In Parbhawati Devi and Others Vs. Mahendra Narain Singh and Others, , it was held that ""a customary right is not easement. An easement
belongs to a determinate person or persons in respect of his or their land. A fluctuating body like the inhabitants of the locality cannot claim an
easement. Easements are private rights belonging to a particular person while customary rights are public rights annexed to the place in general.
Customary right is also different from customary casement and Easement Act does not at all deal with it. In expressly excludes it from its scope
and purview.
In B. Elumdlai v. Naina Mudali (1986) 2 M.L.J. 81, it was held that, ""the conception of easementary right cannot go with the claim of title and
both are contradictory to each other. A title to the property and a right of easement on it are conceptions totally distinct and contradictory to each
other. One is the right to possess, enjoy and use the land in assertion of that right and to the exclusion of another, while a right of easement is a right
in, to or over the property of another. One is a personal right while the other is annexed to and claimed over the land of another and it runs with it.
A relief claimed on the basis of title is totally inconsistent with the relief claimed on the basis of other. To acquire easement by prescription, the user
during the statutory period, should have been with the animus of enjoying the easement as such in the land of another, and there must be
consciousness and acceptance that the title in the land vests with another and the plaintiff cannot assert title in the land in himself as that would
militate against the very acquisition."" The same distinction between the easementary right and customary right were found acceptance in the
decisions, viz., Karuppan Ambalam v. Karuppan Ambalam 77 L.W. 705, Mahadeo Gir and Others Vs. Smt. Lalita Devi, .
The plaintiffs filed O.S. No. 308 of 1990 wherein the State of Tamil Nadu and the Tasildar of Karaikudi are defendants 1 and 2 and the
persons representing the villages of Jayamkondam are defendants 3 to 5. The suit was filed for a declaration that the plaintiffs are entitled to take
water from the northern sluice of Jayakondam Kanmai through S. Nos. 13,78,77 to the Kandarampatty Kanmoi through S.Nos. 13 and S. Nos.
130, 134 and 150 to 160 Periyannavayal Kanmoi ayacut, and restraining the defendants from in any manner interferring with the peaceful
possession and enjoyment of the water from Jayakondam Kanmoi through the last sluice on the northern side irrigating the fields by the plaintiffs.
The plaintiffs claim their title on the basis of easementary right. The trial court held that the plaintiffs are not entitled to base their claim on
easementary right. Accordingly the suit was dismissed. As against the judgment and decree rendered in O.S. No. 308 of 1990, A.S. No. 40 of
1991 was filed. I.A. No. 322 of 1991 was filed for amending the plaint to base their claim on customary right instead of easementary right. This
was allowed by the first appellate court on 11.2.1992. The first appellate court allowed the appeal insofar as defendants 3 to 5 are concerned and
dismissed the appeal in so far as defendants 1 and 2 are concerned. Defendants 3 to 5 filed S.A. No. 317 of 1992. The petitioners herein filed
S.A. No. 980 of 1992 as against the defendants 1 and 2. This Court set aside the judgment and decree of the lower appellate court remanded the
appeal and directed the lower appellate court to dispose of the appeal afresh. In its judgment, this Court pointed out that what would be before the
first appellate court was the judgment rendered by the trial court and it is open to the defendants 1 and 2 to agitate their claim before the first
appellate court. However, this Court while rendering its judgment in S.A. Nos. 317 and 980 of 1992 also dismissed the order passed by the first
appellate court in allowing the amendment in I.A. No. 322 of 1991. When the appeal was remanded before the first appellate court the plaintiffs
filed I.A. No. 793 of 1994 in A.S. No. 40 of 1991 under Order 27, Rule I.C.P.C. for permission to withdraw the suit with liberty to file a fresh
suit on the same subject-matter. In the plaint filed originally the allegations as to when the customary practice of taking water accrued has been
mentioned, and further title by prescription has also been mentioned. The court-fee was also paid as per Section 25(D) of the Court-Fees Act.
Thereafter, the plaintiffs filed an amendment application in the lower court in I.A. No. 1583 of 1990 for substituting ''easementary right of taking
water'' in the place of ''title'' and deleting lines ''6'' to ''8'' in para4 of the plaint mentioned about the customary practice of taking water and also
substituting valuation and court-fee particulars, by deleting Section 25(d) and inserting Section 31. The said application was filed when the suit was
posted for trial. The amendment was allowed on 18.12.1990. Thus when the suit was filed the claim was made both on the basis of the customary
right and easementary right and by way of amendment, the plaintiffs based their claim before the trial court on the basis of customary right, which
was negatived by this Court. In the second appeal proceedings, this Court remanded the matter to the first appellate court for fresh disposal. While
first appellate court disposing of the first appeal, it is not open to the first appellate court to traverse beyond the issues arising in the first appeal.
Therefore, even on this ground also the plaintiffs are not entitled to claim their relief in a petition filed under Order 23, Rule 1, C.P.C.
In Vidhydhar Dube and Others Vs. Har Charan and Others, , it was held as under:
The plaintiff has a right to continue or withdraw a suit till a decree comes into existence. Once the court makes a final adjudication and passes a
decree, certain rights become vested in the party in whose favour the decree is made. Where the suit is dismissed, certain rights become vested in
the defendants inasmuch as the findings given in the judgment become binding on the parties and operate as res judicata in the subsequent litigation
between right by deleting their claim made under customary right. After the suit was dismissed the plaintiffs filed A.S. No. 40 of 1991. In A.S. No.
40 of 1991, I.A. No. 322 of 1991 was filed to amend the plaint. Amendment was allowed by the first appellate court. In the second appeal, this
Court set aside the order passed in I.A. No. 322 of 1991. The order passed by this Court in the second appeals would operate as res judicata
against the plaintiffs. This Court held that the first appellate court was not correct in allowing the amendment in I.A. No. 322 of 1991. Therefore,
again the plaintiffs cannot ask for with drawl of the suit afresh by claiming their right on the basis of customary right. What was not permitted by this
Court in setting aside the order passed in I.A. No. 322 of 1991 cannot be indirectly asked for. The plea of res judicata applicable in the matter of
public right is stated in Section 11, Explanation 6 of C.P.C. In view of the abovesaid provision, it is not possible for the plaintiffs to ask for
permission to withdraw the suit with liberty to file a fresh suit on the same subject matter on the parties. The right of a plaintiff to withdraw the suit
at the appellate stage thus becomes subject to the rights acquired by the defendant under the decree and ceases to be an absolute right. The
appellate court may permit the plaintiff to withdraw the suit when by such withdrawal no vested or substantive right of the defendant is to be
adversly affected by the plaintiff may not be permitted to withdraw the suit at the appellate stage if it results in depriving the defendant of some
vested or substantive right.
In S. Charles Samuel v. Board of Trustees Davaswom Board Office, Suchindram 91 L.W. 320, it was held as under:
If the plaintiff at this stage is allowed by this Court to withdraw his suit that would have the effect of setting aside the decree under appeal. It seems
to me clear that to allow the plaintiff to withdraw the suit in these circumstances would not destroy the existing decree in the defendants favour, but
it would also effectively obliterate the presently available ground of defence on which the Devaswom has succeeded and has a right to succeed.
Therefore, the privilege of applying for withdrawal of suit under Order 23, Rule 1(2) should be held to be unavailable to the plaintiff what is here
involved is no mere formal defect, incapable of doing any harm to any one if it were removed. On the contrary, formal defect or no formal defect
the grant of the plaintiff s request would certainly amount to reversing the decree obtained by the defendant without hearing the defendant on
merits.
Similar view has taken in Ammini Kutty and Others Vs. George Abraham, and Scientific Instruments Co. Ltd. Vs. Collector of Customs
(Valuation Section) and Another, . After the Order passed by this Court in the second appeal proceedings, dismissing the order passed by the first
appellate court in I.A. No. 322 of 1991 a vested right accrued to the defendants and it cannot be disturbed. Right from the beginning of the filing of
the plaint, till the proceedings in the second appeal before this Court, the plaintiffs were keep on changing their stand and that would show the
prevarication in their mind in asking for their right on what basis. Thus, the facts arising in this case on this aspect would go to show that the
plaintiffs cannot ask for withdrawal of the suit as contemplated under Order 23, Rule 1 of C.P.C.
The two clauses in Sub-rule (3) of Order 23, Rule 1, C.P.C. would go to show that the legislature has used a distinctly different language in
both these clauses. Clause (a) refers to the pending suit which was filed by reason of some formal defect; Clause (b) refers to the suit to be
instituted with the leave of the court. When a matter falls under Clause (a)the court is concerned with the question whether the suit must fail by
reason of some formal defect. On the other hand, if Clause (b) is invoked by a party then the court must address itself to the question whether
there are sufficient grounds for allowing the part to institute a fresh suit for the same subject matter or part thereof. Therefore, it is not correct to
submit that sufficient grounds should be read ejusdem generis with formal defect or that they should be analogous thereto. In the present case,
since the plaintiffs were shifting their stand in claiming the relief constantly and frequently from the date of filing the plaint till the date of commencing
the proceedings in the first appeal, after remand, it cannot be said that there is formal defect which if it does not allow is fatal to the suit. Therefore,
the plaintiffs failed to establish that there is a formal defect which would warrant allowing the petition under Order 23, Rule 1(3) of C.P.C. What
was rejected by this Court by dismissing the order passed in the amendment application cannot be smuggled through by asking to allow the petition
filed under Order 23, Rule 1, C.P.C. Further the order passed by this Court in dismissing the order passed in the amendment application by the
first appellate court would operate as res judicata. Therefore, it cannot be said that there is sufficient cause for permitting the plaintiffs to withdraw
the suit with liberty to file a fresh suit on the same subject-matter or part thereof. Therefore, the plaintiff failed to substantiate their case on both the
grounds enumerated in Order 23, Rule 1(3), C.P.C. Therefore, even on merits also the plaintiffs are not entitled to an order under Order 23, Rule
1, C.P.C.
The learned Government Pleader submitted that notice as contemplated under Order 1, Rule 8 was not given in the interlocutory application
filed in the representative capacity for permission to withdraw the suit and to file a fresh suit on the same subject-matter. The learned Counsel
appearing for the petitioner herein submitted that it is the duty of the court to issue the notice and a suit cannot therefore be dismissed for the failure
of the party to move the court. Reliance was placed upon a decision reported in Kumaravelu v. Ramasamy AIR 1933 P.C. 103. It was further
submitted that if the defect is noticed by the appellate court the suit may be remanded for the notice being given. Reliance was also placed upon the
decision reported in Shyam Lal Vs. Musammat Lalli and Another, . On the other hand, the learned Counsel for the respondent relied on the
decision reported in Shyam Lal Vs. Musammat Lalli and Another, , in order to contend that the issue of notice of the institution of the suit is pre-
emptory. It was further submitted that non-complaince with the provision as to notice cannot be cured u/s 99. Reliance was placed upon the
decision reported in Smt. Munni Devi and Others Vs. Satgur Dayal Tandon and Others, .
The facts remain that the suit was filed in representative capacity and notice under Order 1, Rule 8, C.P.C. would have been complied with.
The suit was dismissed. In the first appellate court an application was filed for amendment of the plaint. The first appellate court allowed both the
appeal and the interlocutory application for amendment. Second appeals were filed. The High Court set aside the judgment arid decree of the first
appellate court and remanded the appeal to the first appellate court with direction to dispose of the saem afresh on merits. The order passed in the
interlocutory application for amendment was set aside. In the remanded appeal petition under Order 23, Rule 1, C.P.C. was filed. In the remanded
appeal the parties to the suit are already on record. In the suit, notice under Order 1, Rule 8, C.P.C. was given and complied with. Therefore, in a
remanded appeal, strictly speaking, notice under Order 1, Rule 8 need not be given again in the interlocutory application filed by the plaintiffs.
Further, respondents herein at a later stage submitted that they are not pressing this ground of notice and they desire to contest the revision on
merits. Accordingly, I hold that there is no infirmity in the order passed by the first appellate court in dismissing I.A. No. 793 of 1994 in A.S. No.
40 of 1991. Therefore, I am not inclined in interfere with the same.
In the result, the revision petition and the C.M.P. are dismissed. No costs.