(Prayer: This Second Appeal is filed against he Judgment and decree dated 10.06.2008 passed by the learned I Additional Subordinate Judge, Erode in A.S. No.84 of 2006 confirming the judgment and decree dated 31.3.2006 passed by the learned First Additional District Munisif, Erode in O.S. No.36 of 2003.)

1. This Second Appeal is focused by the defendants, animadverting upon the judgment and decree dated 10.6.2008 passed by the learned I Additional Subordinate Judge, Erode in A.S. No.84 of 2006 confirming the judgment and decree dated 31.3.2006 passed by the learned First Additional District Munsif, Erode in O.S. No.36 of 2003. For convenience sake, the parties are referred to here under according to their litigative status and ranking in the party array before the Trial Court.

2. The respondent/plaintiff, filed the Suit O.S. No.36 of 2003 seeking declaration, mandatory and permanent injunction as against the defendants. The defendants entered appearance. D2 filed the written statement resisting the Suit, which was adopted by D1 and D3; whereupon, the Trial Court framed the necessary issues, based on the pleadings.

3. During Trial, the plaintiff examined himself as P.W1 along with P.Ws.2 and 3 and Exs.A1 to A12 were marked. On the defendants side D2 examined himself as DW1 along with DW2 and no document was got marked.

4. Ultimately the Trial Court decreed the Suit, as against which the defendants, preferred Appeal before the learned First Additional Subordinate Judge, Erode for nothing but to be dismissed by the First Appellate Court. Being disconcerted and aggrieved by the judgments of both the Courts below, the defendants have filed this Second Appeal on various grounds and also suggesting the following substantial questions of law:

(i) Whether the Courts below erred in law and misdirected themselves in granting the relief of declaration and mandatory injunction merely on the basis of presumption as to the existence of the Suit Canal, in the absence of any other oral and documentary evidences to prove its existence and the identity of the north-south dispute canal, or in the absence of any other legal evidence in support of the plaintiffs claim over the Suit property

(ii) Whether the Courts below have committed material irregularity in relying upon the Commissioners report and plan specifically when they have not been marked as exhibits by examining the Advocate Commissioner as witness, if so, whether the findings of the Courts below on the basis of the unmarked evidence is sustainable in law

(iii) Whether the plaintiff is entitled to claim the right over the North-South Canal under Ex.A10 as well as under the plea of easement by prescription, when they are mutually contradictory and destructive pleas

(iv) Whether the Courts below erred in not taking into consideration or giving a specific finding on the question whether the Suit North-South Canal is different from the canal referred to under Ex.A10 to Ex.A12

(v) Whether the Suit is bad for non-joinder of necessary and proper parties, particularly when the plaintiff has claimed that the Suit Canal was formed by the Public Works Department and thereby he has made a complaint to them to restore the Suit Canal, more so, the Government is necessary and property for complete adjudication of the dispute in the Suit

(extracted as such from the memorandum of Second Appeal)

5. Heard the learned Counsel appearing for the appellants/defendants and the learned Counsel for the first respondent/plaintiff.

6. A bare poring over and perusal of the typed set of papers and the judgments of both the Courts below and also consideration of the argument put forth on either side would display and demonstrate that the plaintiff filed the Suit for declaration and for mandatory injunction mainly on the ground that the plaintiff was taking water to his land through the field-bothie running from South to North across the property of the defendants who demolished such field-bothie. Whereas the defendants entered appearance and resisted the Suit by filing written statement full of no-nos as against the averments in the Plaint, by way of remonstrating and refuting, challenging and impugning, the case of the plaintiff in the Plaint but however, contending that a channel was running on the extreme southern portion of the defendants land from West to East branching from the Government canal and turning towards North on the extreme eastern side of the defendants land and thereafter turning towards West on the Northern extreme of the defendants land and entering into the plaintiffs land; the defendants did not demolish the alleged imaginary bothie as alleged in the plaint. Both the Courts below gave a categorical finding of fact to the effect that the defendants did demolish the bothie running across the defendants land and accordingly decreed the Suit and as against which, this Second Appeal has come before this Court.

7. The learned Counsel for the defendants/appellants would submit that the Trial Court was so unmindful in not even noticing the very objection filed by the defendants to the Commissioners report and decided the lis; even though the first Appellate Court traced out the said objection filed by the defendants, nonetheless it failed to appreciate the contentions of the defendants in proper perspective; the Advocate Commissioner deliberately omitted to depict in his sketch and report the very existence of the channel existing in the defendants land as narrated in the written statement; the evidence of PW3 would highlight that he was not aware of the truthfulness or otherwise of Exs.A10, A11 and A12, which were marked through him.

8. Whereas the learned counsel appearing for the plaintiff/respondent would set forth and put forth his argument to the effect that the Commissioner correctly noted in his report, the physical features and Exs.A10, A11 and A12 prepared by the Government officials are reliable ones and that DW2, the Village Administrative Office himself spoke about the existence of the said Bothie, which ran across the land of the defendants.

9. The learned counsel for the defendants alternis visibus argued that even assuming without admitting the existence of the bothie, there is nothing to indicate that for 20 long years as contemplated under Section 15 of the Indian Easements Act, 1882, the plaintiff was taking water through the bothie and thereby acquired easement by prescription.

10. Whereas the learned counsel for the plaintiff would contend that for several decades together the plaintiff has been using the said field-bothie for irrigating his land and in such a case, the defendants were not justified in demolishing it. Exs.A10, A11 and A12 are the documents prepared by the public officials; Ex.A10 is the report prepared by the Assistant Engineer on 1.10.2001, which would evince and evidence that the said Canal as stated by the plaintiff was running from South to North across the defendants land by branching from the small tank constructed by the agricultural department; the water from that small tank was flowing through the left vent of the small tank situated at the junction of Survey Nos.8/3 and 10 and that the said field-bothie was found demolished at the instance of the defendants. The report also would clearly demonstrate and exemplify that there was no other way of taking the water to the plaintiffs land except through the said field-bothie, which ran across the defendants land from South to North. The said report emerged consequent upon the Complaint given by the plaintiff. Ex.A11 is the report submitted by the Executive Engineer to the Collector based on Ex.A10. Ex.A12 is the report submitted by the Assistant Executive Engineer to the Executive Engineer relating to the same subject, wherefore, it is pellucidly and palpably clear that all those reports prepared by the responsible public officials would highlight the fact that as per Government records the said Canal was running from South to North for taking water from the Northern side vent of the small tank constructed by the Agricultural Department.

11. The learned counsel for the defendants would argue that there is no presumption that the water might have been taken only through the said bothie, which was allegedly destroyed by the defendants as even according to the Commissioners report there are several small tanks constructed by the Government for water being taken through bothies to the lands. Put simply, such an argument fails to carry conviction with this Court, for the reason that the Commissioners sketch would indicate and reveal that such small tanks are situated only in two places marked as 4 and 5 in the Commissioners sketch and through the vent of whichever tank, the water was taken from South to North, certainly, it would have run across the field of defendants only and as such the defendants cannot press into service that there was a channel running virtually in an almost "U" shaped manner adjoining the, eastern and northern borders of the defendants land. No doubt, PW3 through whom, Exs.A10, A11 and A12 were marked would state that he was not personally aware of the contention of those reports, but those reports were prepared by the officials only and through him the reports were marked. There is nothing to indicate that those officials had any antipathy or abhorrence, dislike or detest, aversion or abomination as against the defendants so as to see that the defendants are made to suffer in the litigative process and correspondingly the plaintiff to win and achieve success in the litigative battle.

12. DW2, the Village Administrative Officer, who was examined on the side of the defendants would support the case of the plaintiff by highlighting that in the defendants land bearing Survey No.8/3 the said Bothie was running from South to North. In fact, DW2, deposed from his personal knowledge as he happened to be the Administrative Officer of that locality and in such a case, I am having no reason to look askance at his evidence. DW2, the Village Administrative Officer had no axe to grind in the matter and in an unbiased manner without any embellishment, he deposed before the Court in support of the plaintiffs case. Wherefore, the deposition of PW1 and PW2 gains support to the effect that the plaintiff had been taking water to his land for several decades together and it is therefore crystal clear that it was the defendants, who happened to be the recent purchaser of the property, demolished the said field bothie and deprived the plaintiff of his right to take water. In such a case, the defendants were not justified in simply insisting that precisely there should be evidence as per Section 15 of the Indian Easements Act, 1882 that the plaintiff has been taking water for 20 years so as to prove the acquisition of easement by prescription.

13. The evidence of P.Ws.1 and 2 coupled with the oral evidence of DW2 and Exs.A10, A11 and A12 would clearly evince and evidence that for several decades the plaintiff has been taking water through the said field-bothie and it is common or garden principle of law that onus of proof is ambulatory and not static. As such, the onus of proof got shifted on the defendants side to prove that the case of the plaintiff is false. It is a peculiar case, in which the defendants had chosen to demolish the field-bothie and in such a case, adverse inference could be drawn as against them that they being the recent purchasers of the said land ought not to have demolished the said field bothie.

14. In such a case, the defendants cannot call upon the plaintiff to, prove by any documentary evidence that from a particular date onwards, he started taking water through the field-bothie. Here the oral evidence of P.Ws.1 and 2 are supported by documentary evidence and over and above that the officials oral evidence also supports the case of the plaintiff.

15. At this juncture, my mind is reminiscent and redolent of the following maxim-omnia praesumuntur contra spoliatorern - Every presumption is made against a wrongdoer. In such a case, I could see no merit in this Second Appeal.

16. Accordingly,

(i) the suggested substantial questions of law Nos.1 to 4 are based on the wrong assumption as though both the Courts below were perverse in appreciating the evidence. But my discussion supra would highlight that there were no wrong analysis and much less perversity in appreciating the oral and documentary evidence in deciding the case by both the Courts below.

(ii) the suggested substantial question of law No.5 is relating to non-joinder of necessary parties. I would like to highlight that such a question of law does not arise at all and that too, when in the written statement, there is no reference to the plea of non-joinder of the Government as a party. I would like to refer to Order 1, Rule 9 of the Code of Civil Procedure and it is extracted hereunder for ready reference:

Mis-joinder and non-joinder. No Suit shall be defeated by reason of the mis-joinder 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 non-joinder of a necessary party

It is therefore crystal clear that the Suit cannot held to be bad for non-joinder of necessary party and that too when the defendants have for the first time raised it before this Court without calling upon the lower Court to frame an issue in that regard after pleading to that effect.

17. At this juncture my mind is redolent and reminiscent of the following decisions of the Honble Apex Court.

(i) Hero Vinoth (Minor) v. Seshammal, 2006 (5) SCC 545 , [LQ/SC/2006/449] certain excerpts from its would run thus:

"17. After the amendment a Second Appeal can be filed only if a substantial question of law is involved in the case. The memorandum of Appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case..

18. It has to be kept in mind that the right of Appeal is neither a natural nor an inherenth right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a Second Appeal can be maintained and no Court has the power to add or to enlarge those grounds. The Second Appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this Section. Further, a substantial question of law has to be distinguished from a substantial question of fact .

(ii) Kashmir Singh v. Harnam Singh and another, 2008 (4) SCALE 300. [LQ/SC/2008/552]

A bare perusal of those decisions would evince and convey that the Second Appeal is not by way of right. If at all the High Court finds that there is perversity or gross violation on the part of the lower Court in applying the law or refraining from applying the law, the question of interference could arise under Section 100 of the Code of Civil Procedure. But, in this case, as discussed supra, absolutely there is no perversity in the judgments rendered by both the Courts below, warranting interference by this Court.

18. In the result, the Second Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is dismissed.