Samayan and Vellaiyan vs N. Velu and Others

S. Palanivelu, J.—The Appellants are third and fourth defendants before the District Munsif Court. Manamadurai. The first and second

plaintiffs are the ayacutdars of Nedungulam Kanmai. They are also representing all the ryo.ts of the said Nedungulam Kanmai. The first and second

defendants are the Government officials. The appellants were impleaded in the plaint for themselves and also on behalf of the ayacutdars of

Ganapathiyenthal Kanmai. For the sake of convenience, the litigative status of the parties is mentioned in this judgment as found in District Munsif

Court proceedings.

The first and second plaintiffs along with 3 to 6 plaintiffs filed a suit for permanent injunction against ''the defendants for permanent injunction

restraining them from preventing the water obtained by them from the Ganapathiyenthal Kanmai by putting any obstacles. The District Munsif

Court. Manamadurai by its judgment in O.S. No. 259 of 1990 on 24-09-1994 dismissed the suit observing that the plaintiffs are not entitled for

any permanent injunction, as prayed for without costs. The plaintiffs carried the matter in appeal before the District Court, Sivagangai in A.S. No.

112, of 1994 and the said court on 31-08-1995 allowed the appeal granting permanent injunction to the plaintiffs as prayed for, setting aside the

judgment and decree of the District Munsif Court, Manamadurai, without costs. Aggrieved over the judgment of the first appellate court, the

District Court, sivagangai, the third and fourth defendants have come forward with this second appeal before this Court.

At the time of admission of this Appeal, this court has framed the following substantial question of law to be decided in the second appeal.

Question of Law: Whether the lower Appellate Court is correct in reversing the judgment and decree of the trial court, without formulating the

points will regard to non-joinder of parties and for cause of action, affecting the natural course of flow of water over the suit property?

The learned Additional Government Pleader appearing for the defendants filed a plan prepared by the Tahsildar, Manamadurai which is more

helpful for this Court to find out the locations of tanks and the channels and of the Survey numbers. The dispute is stated to be in survey No. 187.

All the above said properties are situated in Nedungulam village which is one among South Santhanoor Group of villages in Manamadurai Taluk in

sivagangai District. This Court directed the learned Additional Government Pleader to file a report with reference to the particulars as to which are

sources of water for the Vannanodai Kanmai and Ganapathiyenthal Kanmai. The learned Additional Government Pleader would submit that

inspection was conducted by the Tahsildar, Manamadurai along with Revenue Inspector and Village Administrative Officer and the report has

been furnished. The informations found in the said report throw much light on the subject. It is the main grievance of the plaintiffs herein that the first

and second (sic) Government officials are attempting to form a channel in Survey No. 187 by means of which the water from South Santhanoor

Kanmai would reach Vannnanodi Periya Kanmai which is the main source of irrigation to their lands. In fact, the plaintiffs are getting water for their

lands for irrigation from Nendungulam Kanmai and Vannanodi Kanmai which are on the north of survey number 187, whereas South Santhanur

Kanmai is situated far east in survey number 187. It is to be noted that Ganapathiyenthal is situated on the south-east of Survey No. 187.

4.1 It is stated by the learned Additional Government Pleader that northern portion of Survey No. 187 was assigned to various persons who are

landless Adidravidars and now they are holding patta with reference to specific items of lands in Survey No. 187 and the plaintiffs have now come

forward with the allegation of future action of the Government in forming a channel in survey number 187 in which the pattadhars are in enjoyment.

The individuals who got patta in the above said scheme are Alphonse, Savarimuthu, Arulanandu and Kulaindaisamy and they are holding Survey

Nos. 187/1A, 187/1B, 187/1C and 187/1D respectively. These facts are available from ''A'' register shown by the learned Additional Government

Pleader. It is also stated that previously the water was coming through Survey No. 187 from South Santhanoor Kanmai to Ganapathiyenthal

Kanmai which was a source of irrigation for the defendants and subsequently the said channel got obliterated by the assigness in Survey No. 187.

The report submitted by the Tahsildar, Manamadurai, would show that the sources of irrigation for Vannondai Kanmai are, the rain water and

Thambiran Nedungulam excess water. The water sources for Ganapathiyendal Kanmai are Alangulam Nanja lands excess water and Santhanoor

Kanmai excess water. The above said representation of the Tahsildar, Manamadurai is more categorical to state that Vannanodai peria Kanmai

has not at all been getting water from South Santhanoor Kanmai at any point of time. The particulars have reportedly been extracted from village

''A'' register maintained by the reveneue officials. Hence, there is no room to lay any suspicion over the statements in the report of Tahsildar.

The lower court appointed an Advocate Commissioner for inspecting and noting down the physical features of the properties involved in this

case, who carried out the work and filed his report with the plan. But the said report and plan are not at all rendering any help to this Court, since

the report is a reproduction of the versions which were stated before him by the parties at the time of inspection. irtually, it is a form of record on

oral evidence.

When an Advocate Commissioner is appointed by the Court either to note down the physical features of the suit property or its measurements

or the other connected characterstics, he is expected to execute the Warrant of Commission, as per the directions contained therein. He is not

supposed to exceed the directions mentioned in the Warrant of Commission.

The object of local investigation under Order XXVI Rule 9 of the CPC is to obtain evidence, which from its peculiar, nature, can be had from

the spot itself, such evidence enables the Court to properly and correctly understand and assess the evidence on record. It clarifies or explains any

point, which is left doubtful on the evidence on record.

It is to be borne in mind that the Court delegates its powers to the Commissioner to inspect the property and to secure the available materials as

per the instructions in the Warrant of Commission, for better adjudication of the case. Those materials might be inevitable to elicit any point, which

could be doubtful on the evidence produced before the Court.

The duty of Commissioner is not to collect the evidence, which is in the nature of oral testimony of the parties in the place of commission, but

to graphically elucidate the matter, which is local in character. If the Commissioner exceeds his limit of inspecting the property by gathering the

evidence with reference to the physical features, measurements etc. and proceeds to make his report as to the recording of oral statements made

by the parties and other persons, it would (sic) the object of issue of commission, which would ultimately shatter the very purpose of the

commission.

It is a simple logic that when a Commissioner records oral statements of the parties and others available in the site of inspection, the Court

could not at all place any reliance upon the said statements, because, firstly, the statements are not brought to record on oath and, nextly, the other

party would not have a right to cross examine. Hence, in the absence of any specific direction for recording of oral evidence in the Warrant of

Commission, the Commissioner shall not record the statements adduced by the persons available in the place of inspection. Further, an

adjudication on a material issue has to be undertaken only by the Court and the said power is not at all delegated to the Commissioner, while he is

directied to make local inspection alone. Though it may be stated that a statement is given by a party to the Commissioner at the time of inspection,

which had not received any objection from the other side, still, it would suffer from infirmity, as it was not taken on oath so, the non-objection on

the part of other side could not be stated that it was a cooperation from him.

As for the contentions of the learned Counsel for the third and fourth defendants who are the appellants before this Court, from the very fact

that the plaintiffs and their predecessors in title have been obtaining water from Vannanodai Periya Kanmai and Thambiran Kanmai alone and at no

point of time they obtained water from South Santhanoor Kanmai, which is supported by the records available with the revenue department, they

are not entitled for injunction as prayed for in this case.

The learned Additional Government Pleader also contends that if there was any proposal for making any channel in Survey No. 187 for

passing the water from South Sathanoor Kanmai to Ganapathiyenthal Kanmai, it is the prerogative of the Government and neither the plaintiffs nor

anybody else is entitled to object to it, since the said right of the Government is statutorily protected.

Learned Counsel for the appellants in this juncture would draw attention of this Court that even though the plaintiffs have pleaded easementary

right to get the water from South Santhanoor Kanmai, in fact, they could not make any claim against the Government, since the Government''s

rights could not be curtailed by any private individual and there is a statutory bar in the Indian Easement Act, 1882. Section 2(a) of the Act reads

as follows:

Any right of the Government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, and

of natural lakes and ponds, or of the water flowing, collected, retained or distributed in or by any channels or other work constructed at the public

expense.

He also garnered support from the provisions contained in the Tamil Nadu Irrigation Tanks (Improvement) Act (Tamil Nadu Act No. XIX of

1949) in which Section 4 puts a bar for instituting suits for injunction to restrain the exercise of any powers conferred on the Government by

Section 3.

Sections 3 and 4 of the said Act read as follows:

Power to take measures for increasing the capacity or efficiency of irrigation tanks:

3(1) Not withstanding anything contained in any other law for the time being in force, the Government sahll have power to raise the fulltank level of

any tank or to take any other measures for increasing its capacity of efficiency, wherever it may be situated and whether in a ryotwari, zamindari,

inamdari or other area.

(2) The owner of a tank not belonging to the Government shall not be required to bear any portion of the cost of carrying out any measures in

respect of the tank under Sub-section (1).

(3) Where, in pursuance of Sub-section (1), any measures are carried out, in respect of a tank, the cost of carrying them out or such portion of the

cost as the Government may specify, may be recovered by the District Collector from the owners of the lands and other properties benefited by

the work in such proportions, and in such manner, as may be prescribed.

Suits and applications for injunctions barred:

No Court shall entertain any suit or application for the issue of any injunction to restrain the exercise of any powers conferred on the

Government by Section 3.

From the above statutory provisions, it is very clear that no suit for injunction would lie before any civil court curtailing or restraining the power

of the Government in the matter of irrigation and the Government has got every right to regulate the water available to the ryots in the particular

locality.

Learned Counsel for the appellants also drew attention of this court to a decision of this Court which have been rendered on the strength of

Section 4 of the above said Act. The operative portion of the said decision is as under:

a) In State of Tamil Nadu Vs. V.A. Abdul Karim and Another, is held that in para 9 as follows:

We have carefully considered the submissions of the Learned Counsel appearing on either side. In Lachuma Goundan v. Pandiyappan 1950) 2

MLJ 658, Viswanantha Satri, J. held that the obligation of the Government is to supply water necessary and sufficient for the accustomed

requirements of the ryotwari proprietor so long as such supply is not adversely affected by natural causes such as deficiency of rainfall or scarcity

of water in the rivers from which the supply channels take off. It was also held therein that in other cases, the interference by the Government with

the existing rights of irrigation from artificial channels constructed by Government is not an actionable wrong and the ryotwari proprietor is not

entitled to insist that the entire volume of water which had been flowing through the artificial channel should, for all times, be allowed to run along

the channel without diminution or diversion by the Government. We are therefore, of the view that despite the rights of the ryot to receive from the

Government supply of water necessary for irrigation of his registered wet lands, as an incident to the Ryotwari tenure, the prerogative right of the

Government to regulate the same in the larger interest of the society is equally beyond challenge.

b) In 2003 (3) LW 855 in C. Arulsamy and Ors. v. State of Tamil Nadu represented by District Collector, Pudukottai and Ors. it is held in para

17 as follows:

The plaintiffs have filed the suit not only for declaration of their alleged mamool and customary right, but also consequentially prayed for

injunction, against the Government. Prima facie, the suit itself is not maintainable and the trial court ought not to have taken the case on file. But

unfortunately, this point was not raised either by the Government or by the learned Counsel appearing for the parties, before the trial Court,

thereby allowing the suit to remain on the file fo the trial Court, then proceeding with the trial, ending in a conclusion, which is impugned before me.

When the suit itself is not maintainable under law, even as otherwise held by the courts below, the question of granting a scheme like decree is also

not permissible, since the same is in a way restricts the power of the Government, to regulate the water supply, which will amount to injunction

impliedly, indirectly, which is barred u/s 4 of the Act, as said supra.

This Court has taken a consistent view on the basis of Section 4 of the above said Act and held that the right of the Government in exercising

its power under the said legislation could not be curtailed.

In view of the above said propostion of law and in the unambiguous terms of Section 4, it is rightly contended by the learned Counsel for the

appellants as well as the learned Additional Government Pleader that the Civil Court is bereft of the jurisdiction to grant any injunction, preventing

the rights of the Government to regulate the water supply to the agricultural lands.

The substantial question of law has been framed by this Court to the effect that the suit is bad for misjoinder and non-joinder of parties and

also for absence of cause of action. With regard to non joinder of necessary parties, it is contended that the assignees in survey number 187 as

aforementioned are the necessary parties before this Court and the non-joinder of parties is very much fatal to the claim of the plaintiffs. If the

above said persons are proper parties, this court may hold that the suit will not suffer on that score. But, if those individuals are the necessary

parties as per law, the plaintiffs should go out of the court. Order I Rule 9 of the CPC reads as follows:

Order I Rule 9. Misjoinder and non-joinder:-No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in

every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

[Provided that nothing in this rule shall apply to nonjoinder of a necessary party]

If the Court finds that proper parties are not on the record, may grant some more opportunity to the plaintiffs to implead them subsequently

and proceed further with the trial. But, if any party, who is very much necessary for adjudication and to finally decide the rights of the parties, is not

impleaded at the time of the suit, there is no option for the courts (sic) to reject claim of the plaintiffs. As far as the facts of this case are concerned,

the assignees in Survey No. 187, found in ''A'' Register of the revenue department, are very much essential for the suit, since the plaintiffs are

alleging that the Government may lay a channel in the said survey number. Hence, they are necessary parties to the suit and, in their absence, the

claim of the plaintiffs could not be finally adjudicated. Since they have not been impleaded in this case, it is to be observed that the suit is bad for

non-joinder of necessary parties.

As far as the factual aspects are concerned, both the Courts below have discussed the matter and it is not necessary for this Court to go deep

into the pleadings and the oral evidence, which have already been subjected to a thorough scrutiny by the Courts below.

In view of the settled legal position by this Court, it is held herein that the plaintiffs are non-suited for the relief claimed and they are not entitled

to irrigate their lands from South Sathanoor Kanmai and that they are entirely alien to the sorce of water from South Santhanoor Kanmai.

For the forgoing reasons, this Court is of the view that the plaintiffs are not entitled for the relief of pemanent injunction as prayed for in this suit.

The substantial question of law is answered as stated above.

In the result, this Second Appeal is allowed, setting aside the judgment and decree of the Principal District Judge, sivagangai, in A.S. No. 112

of 1994 and restoring the judgment and decree of the District Munsif, Manamadurai, in O.S. No. 259 of 1990. No costs.