The above second appeal arises out of the Judgment and Decree, dated 17.07.1997, passed in A.S.No.65 of 1996, on the file of the 2nd Additional Subordinate Court, Tiruchirapalli, reversing the Judgment and Decree, dated 26.04.1995, passed in O.S.No.797 of 1987, on the file of the District Munsif, Tiruchy.
2.Parties herein are hereinafter referred to as they were arrayed in the original suit.
3.The plaintiffs in O.S.No.797 of 1987 on the file of the District Munsif, Trichirapalli are the appellants herein. They have filed the above suit for permanent injunction restraining the first defendant viz., the Electricity Board from supplying electricity from the electric poles erected on the suit property and through the suit property to the second defendant's house.
3.First plaintiff is the husband of second plaintiff. First plaintiff died pending suit. Thereafter, third defendant has been impleaded as a party to the suit. According to the plaintiffs, the suit pathway belongs to the second plaintiff and three others, whose houses are situated on the eastern side of the suit pathway. Two electric poles were erected for supply of electricity to the house of the second plaintiff and to the other houses situated on the eastern side. The second defendant's house is situated on the western side of the suit pathway. Electricity supply was given to him from pole No.322. This pole is on the public road situated on the southern side of the suit pathway. The second defendant attempted to get fresh electric connection from the electric poles erected on the suit property. The first defendant is not entitled to draw electric wires over the suit land for supply of electricity to the second defendant.
4.The first defendant filed a written statement stating that it is an unnecessary party to the suit. The second defendant has given an application for supply of electricity and it is under consideration. The first defendant will abide by the decision of the Court.
5.The second defendant in his statement has stated that the properties, where the electric poles stand is a common pathway and the pathway does not belong exclusively to the plaintiffs. It is also his case that the plaintiffs cannot claim any exclusive possession over the electric poles. He has further stated that previously, he was having electricity connection passing through one Ramar's property situated on the south and as the said Ramar put up construction, electricity supply has been cut off by the first defendant Electricity Board on 24.02.1987 and that therefore, he applied for fresh service connection to his property and it was also sanctioned by the first defendant. He prayed for dismissal of the suit.
6.During trial, in support of the case, the second plaintiff was examined as P.W.1. The Village Administrative Officer of Navalpattu Village was examined as D.W.2. The plaintiffs have marked six exhibits as Exs.A.1 to A.6. The second defendant marked a copy of Field Measurement Book and a copy of settlement register relating to Sy.No.373 of Navalpattu village as Ex.B.1 and Ex.B.2 respectively.
7.A Commissioner was appointed by the trial court to inspect the suit property. He inspected the suit property and filed his report. The report and sketch have been marked as Ex.C.1 and Ex.C.2 respectively.
8.The trial court, on appreciation of materials, has held that the plaintiffs have been in possession of the suit property. The trial court granted injunction as prayed for. Aggrieved by the judgment and decree, the second defendant approached the first appellate court in A.S.No.65 of 1996 on the file of the learned Subordinate Judge, Trichy.
9.The first appellate court, placing reliance on revenue records and the evidence of the Village Administrative Officer, has come to the conclusion that the suit property is not a private pathway, as claimed by the plaintiffs. Hence, the first appellate court set aside the judgment and decree passed by the trial court and dismissed the suit.
10.Aggrieved by the judgment and decree of the first appellate court, the present second appeal has been filed.
11.At the time of admitting the second appeal, the following substantial questions of law have been formulated for consideration.
?1. Whether the lower appellate court is right in rejecting Ex.A5 which clearly proves the existence of the pathway?
2. Whether the lower appellate court is right in relying upon Ex.B2 which had been created after the filing of the suit?
3. Whether the lower appellate court is right in appreciation of Ex.B2 and A5 and whether its finding on the aforesaid document is not perverse, and illogical?
12.The learned counsel for the appellant would submit that the first appellate court has committed an error in rejecting Ex.A.5/Will, wherein, it has been mentioned that the second plaintiff and three others can use the suit pathway as usual and no other person can claim any right over the suit pathway. However, it is an admitted fact that neither the second defendant not his predecessor was a party to the Will. Therefore, the first appellate court was justified in not placing reliance on the recitals found in the will. No document of title has been filed to show that the suit pathway belongs to the said four persons exclusively.
13.It is seen from the evidence of the Village Administrative Officer that the suit land and other lands of the village were surveyed. The suit property is comprised in Sy.No.373/24, as could be seen from the Ex.B.1-FMB sketch and Ex.B.2 Settlement Register. It cannot be said that revenue records were corrected at the instance of the second defendant. The evidence of the Village Administrative Officer coupled with the revenue records would show that the suit property is not a private pathway. Simply because the pathway was not vested with the panchayat, it cannot be said that the first defendant is not entitled to take electric wires over the suit land. The plaintiffs have also not established that the electric poles are their properties.
14.The learned counsel for the respondents submitted that the plaintiffs cannot prevent the Electricity Board from drawing electric wires from the electric poles erected on the suit land and draw the wires over the suit land to the house of the second respondent for supply of electricity. In this connection, he relied on a decision of this Court in the case of Superintending Engineer and Others Vs. Thangaprakasam, (AIR 1999 Madras 365), wherein, it has been held that the Electricity Board cannot be prevented by an order of injunction as they are entitled to erect electric poles to draw electric wires for supply of electricity over any land, subject to the owner's right to claim damages if proved, in terms of Section 42 of Electricity Act, 1948 r/w Section 10 and
16 of the Indian Telegraph Act, 1885. This decision squarely applies to the case on hand.
15.In the light of the decision of this Court in Superintending Engineer and Others Vs. Thangaprakasam (AIR 1999 Madras 365) and in view of the findings of fact that the suit property is a Natham poromboke pathway, I hold that the first appellate court was right in dismissing the suit. The findings of fact cannot be interfered with in the second appeal. The substantial questions of law raised in the second appeal are answered accordingly against the appellant.
16.In the result, this second appeal is dismissed, by confirming the judgment and decree passed by the first appellate court in A.S.No.65 of 1996, dated 17.07.1997. No costs.
To.
1.The Second Additional Subordinate Court, Tiruchirapalli.
2.The District Munsif Court, Tiruchirapalli.
3.Tamil Nadu Electricity Board, Thiruverumbur, Tiruchirapalli rep. By The Assistant Engineer Trichy-14..