REVAPPA v. HASSAN PATEL — 1969 DIGILAW 119 (KAR)

( 1 ) THIS is an appeal against the judgment and decree passed by the civil Judge, Gulbarga, in Review Petition No. 38/5 of 1965 for review of his judgment in C. A. No. 267/4 of 1964. ( 2 ) IN order to appreciate the points that have been submitted before me by the learned Advocate appearing for the appellants and respondents, it is necessary to refer briefly to the facts and the decisions rendered by the courts below. Hassan Patel and his son wno are tne respondents in this appeal filed CS. No. 637/l of 1962 in the Court of the II Additional Munsiff, gulbarga, for a perpetual injunction against the defendants (the present appellants) restraining them not to divert the flow of water of the 'nala' into S. No. 608 owned by the plaintiffs and not to interfere with the bund construced by the plaintiff across the eastern boundary of his land. The plaintiffs averred that there had been an agreement between the predecessors in title of the two defendants some 30 years ago, that they had agreed to divert the course of the nala flowing from east to west. S. No. 588 directly to S. No. 608 and then into S. No. 582 belonging to defendant No. 2, and that on account of this agreement the plaintiffs had put up a bund from north to south against the eastern boundary of their loand S. No. 608. It was complained in the plaint that the two defendants who were the successors in interest of persons that had entered into an agreement SO years ago to take the nala water into their own lands by diverting its course so as to leave an out-let on the boundary of S. No. 608, had now been interfering with the course of the nala and also interfering with the bund put up by the plaintiff. According to them, the defendants were bound by the agreement entered into between their predecessors-in-title and they had no right either to divert the course of water or interfere with the plaintiffs' bund. According to them, the defendants were bound by the agreement entered into between their predecessors-in-title and they had no right either to divert the course of water or interfere with the plaintiffs' bund. ( 3 ) IN their written statement the defendants denied that there was any such agreement as alleged in the plaint and that the plaintiffs were merely diverting the water into their land instead of allowing it to flow along its natural course i. e. , from S. No. 588 directly into S. No. 608. ( 4 ) THE learned trial Judge after framing the issues and recording the evidence and also getting the report of the Commissioner, came to the conclusion that the plaintiffs had failed to prove the agreement that the plaintiffs had no right to compel the defendants to take the water into S. No. 582, and that they were accordingly not entitled to any reliefs. It may be mentioned at this stage that there appears to be an obvious mistake in the plaint wherein throughout there is the mention of S. No. 586 instead of 582 which is situated on the eastern boundary of S. No. 608 and to the south of S. No. 588. As a result of this finding the learned Munsiff dismissed the suit with costs on August 16, 1963. ( 5 ) THE plaintiffs then preferred CA. No. 267/4 of 1964 in the Court of the Civil Judge, Gulbarga. The learned Judge heard the Advocates for the parties, upheld the decision of the trial Court and dismissed the appeal with costs on March 5, 1965. ( 6 ) THEREAFTER the plaintiffs filed a Review Petition No. 38/5 of 1965 contending that the learned Judge had committed an apparent error by invoking S. 14 of the Indian Easements Act, even though it was not the case of the plaintiffs that what they were claiming was an easement of necessity, that the respondents who were the representatives in interest of the previous owners were bound by the agreement that had been entered into mutually between their predecessors-in-title and that the value of the Commissioner's report had not been considered in deciding the claims of the parties. ( 7 ) INSTEAD of considering whether the review petition was one which attracted the provisions of Or. ( 7 ) INSTEAD of considering whether the review petition was one which attracted the provisions of Or. 47, R. 1 and whether the review could be allowed to the plaintiffs-appellants on any of the grounds mentioned therein, the learned Judge disposed of the whole appeal and the review petition by a single order dated 17th August 1965. By this judgment he partly allowed the appeal, confirmed the decree of the trial Court in so far as it denied a perpetual injunction against the defendants from interfering with the present flow of the water of the streamlet, but he varied the other part of the decree by directing the issue of perpetual injunction against the defendants that they should not break the bund existing in the plaintiffs land bearing Survey No. 608 towards east. He directed the parties to bear their own costs. ( 8 ) IT may be pointed out at the outset that this decree passed after review is self-contradictory ; while the learned Civil Judge held that the defendants cannot be restrained from diverting the course of the water, he prevented them by issue of a perpetual injunction, from breaking any portion of the bund. The effect of this decree would be that the water would continue to flow in an undefined way in S. Nos. 588 and 582 and the plaintiffs would have virtually got the relief which on the Judge's own finding, they are not entitled to. ( 9 ) AT the hearing oi the appeal Mr. Murlidhar Rao, learned Advocate appearing for the respondents raised a preliminary objection and submitted, that in view ol what is contained in Or. 47, R. 7 (1) CPC. , it is not open to the appellants to raise any other ground except those mentioned in Clauses (b) and (c) of R. 7 (1) of Or. 47. In support of this contention reliance was placed on the decision of this Court in Abdul Shukoor and Co. v. Ibrahim Saheb and Co. , 1962 Mys. L. J. 299. What this decision lays down is that there is no conflict between Or. 43, R. 1 (w) which gives a right of appeal without specifying the grounds, and Or. 47. In support of this contention reliance was placed on the decision of this Court in Abdul Shukoor and Co. v. Ibrahim Saheb and Co. , 1962 Mys. L. J. 299. What this decision lays down is that there is no conflict between Or. 43, R. 1 (w) which gives a right of appeal without specifying the grounds, and Or. 47, R. 7 which limits the grounds available for appeal and the two can be read together so that an appeal shall lie against an order granting review only on the grounds set out in the latter rule, namely, contravention of the proviso to R. 4 (2) of Or. 47 CPC. Rule 7 (1) of Order 47 which is relevant lays down:"7 (1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to on the ground that the application was- (b) in contravention of the provisions of Rule 4, or (c) after the expiration of the period of limitation prescribed therefor and without sufficient cause. Such objections may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit. "the concluding portion of this rule contemplates two remedies to a person who is aggrieved by an order granting an application for a review. " (1) It is open to him to prefer an appeal at once i. e. , before the judgment which is sought to be reviewed is re-heard on its merits; and that this is so, is clearly indicated by Or. 43, R. 1 (w) which provides for an appeal from "an order under R. 4 of Or. 47 granting application for review " (ii) the other remedy open to the aggrieved party is to wait till the judgment already delivered is reviewed and "the final decree or order" is passed in the suit or in appeal. "the contention of Mr. Appa Rao, learned Counsel for the appellants, is that his appeal is against the final decree passed by the Civil Judge after allowing the review petition and he is not therefore barred from preferring this appeal. ( 10 ) THERE is no doubt, that the objection raised by Mr. Murulidhar rao is not tenable in the present case. Appa Rao, learned Counsel for the appellants, is that his appeal is against the final decree passed by the Civil Judge after allowing the review petition and he is not therefore barred from preferring this appeal. ( 10 ) THERE is no doubt, that the objection raised by Mr. Murulidhar rao is not tenable in the present case. It will be seen from the order of the Civil Judge, that instead of dealing with the review petition first and finding out whether it was tenable under the provisions of rule 1 of Order 47, he has dealt with the review petition and the appeal before him together and passed a single decree by setting aside the decree already passed. In effect it is a composite decree comprising the order on the review petition and the judgment modifying the judgment already delivered by him in the appeal before the review petition was filed. In these circumstances, I have no hesitation in rejecting the preliminary objection. ( 11 ) COMING to the merits of the case it is strange that under the guise of exercising the powers of review under Order 47 rule (1) the learned Civil Judge has actually sat in judgment over his own judgment and modified the judgment passed by him even though none of the grounds alleged in the review petition fall within the relevant provisions of Order 47 CPC. It is pertinent to mention that even after the review the learned Civil Judge has come to the conclusion, that the plaintiff had failed to prove the agreement between the predecessor-in-title of S. Nos. 588 and 582. This was also the conclusion reached by the trial Court. The learned Judge further agreed with the trial Court in concluding that even if there was such an agreement it was not a covenant running with the land and cannot be pressed into service against the present defendants who are the successors in interest of the parties alleged to have entered into that agreement. It therefore follows that in the absence of the agreement as alleged in the plaint the plaintiff cannot compel the defendants to allow the water to flow from S. No. 588 to S. No. 582, and thereafter enter his land at some corner of S. No. 608. It therefore follows that in the absence of the agreement as alleged in the plaint the plaintiff cannot compel the defendants to allow the water to flow from S. No. 588 to S. No. 582, and thereafter enter his land at some corner of S. No. 608. It is necessary to mention that in the plaint itself it has been admitted in paragraph 2, that as per the settlement map, the streamlet was flowing from S. No. 588 to S. No. 608. The map filed with the plaint also shows, that the streamlet flows from east to west and enters the plaintiffs' land at some point in the south-western corner. It may be that they have constructed a bund across their own land at a heavy cost. Nobody can prevent them from constructing a bund of this type to protect their own land so long as they do not materially interfere with any of the rights vested in the owners of adjoining lands. So, on their own showing the streamlet was entering from S. No. 588 directly into their land bearing S. No. 608, at the corner pointed in the sketch annexed with the plaint. In my opinion, the defendants have every right to insist upon the plaintiffs allowing the water of the streamlet to flow in its natural course as it had been doing in the past. Their interference if any with the bund was probably with a view to see that the diversion of the water course set up by the plaintiff, namely, water flowing from S. No. 588 to s. No. 582, was not allowed to be retained or maintained to the detriment of their own interest. It is very difficult to understand the learned Civil judge, when he modified his own order after the review petition while he recognised that the owner of S. No. 582 had a right to resist the water course flowing into his own land. He some-how came to the conclusion, that the defendants could not break up any portion of the bund in order to make the streamlet water to take its own course. As already pointed out the decree passed bv the learned Civil Judge is self-contradictory, The only basis of the plaintiffs' contention, that the defendants should take the streamlet water into their own land is the agreement alleged to have been entered into 30 years ago. As already pointed out the decree passed bv the learned Civil Judge is self-contradictory, The only basis of the plaintiffs' contention, that the defendants should take the streamlet water into their own land is the agreement alleged to have been entered into 30 years ago. There is a concurrent finding of fact of both the courts that there was no such agreement. Therefore the plaintiffs' assertion that the defendants should allow the water to flow into S. No. 582 was without any substance and the decree should not, have been varied bv purporting to act under Order 47. when there were no grounds at all for review. ( 12 ) IN the result the appeal is allowed, and the decree passed by the appellate Court, is set aside and the decree passed bv the Munsiff, dismissing the entire suit is confirmed The appellants shall get the costs of the trial Court and of the first appellate Court from the plaintiffs. There shall be no order as to the costs of this Court. --- *** --- .