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Madhya Pradesh High Court · body

2011 DIGILAW 1165 (MP)

Mangilal v. Mangilal

2011-10-12

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. The unsuccessful plaintiffs by taking the aid of section 100 CPC have assailed the judgment and decree passed by learned two Courts below dismissing their suit. 2. The plaintiffs-appellants filed a suit against defendants-respondents for declaration and injunction in respect of a Well which is the subject-matter of the suit. The name of Mangilal is common between the first plaintiff and first defendant. The father’s name of first plaintiff Mangilal is Veniramji while that of first defendant is Sawaji. 3. According to the plaintiffs, the disputed Well is in the land of first defendant and he (first defendant) has been shown to be the Bhumiswami in the revenue record of the said land. Further it has been pleaded by the plaintiffs that adjoining to the first defendant’s land, the land of plaintiffs is situated and they are irrigating their agricultural land from the disputed Well which is in existence of first defendant’s land. Further it has been pleaded by the plaintiffs that for the last more than 60 years they are irrigating their lands from the water of the Well of the first defendant. It has also been pleaded that defined channels to irrigate the land are also in existence adjoining to the surface of the Well and therefore from these channels, after uplifting the water from the disputed Well, it flows to the land of plaintiffs and thus they are having easementary right on the Well of the first defendant. 4. It is also the case of the plaintiffs that in the relevant column of the revenue record there is an entry of the existence of Well and further there is an entry that plaintiffs are taking water from the said Well and this entry in the revenue record was never changed and is still continuing. Hence, on the basis of the easement, the plaintiffs have filed a suit for declaration that it be declared that they are entitled to take water from the Well of the first defendant. By amending the plaint they have also pleaded that because they are taking the water to irrigate their land for the last 60 years, a decree of injunction be granted against the defendants that they should not create any obstruction, while taking water by the plaintiffs from first defendant’s Well. 5. By amending the plaint they have also pleaded that because they are taking the water to irrigate their land for the last 60 years, a decree of injunction be granted against the defendants that they should not create any obstruction, while taking water by the plaintiffs from first defendant’s Well. 5. The first defendant by filing written statement denied the plaint averments and also denied that plaintiffs are having any easementary right on his Well. The other averments made in the plaint are also denied. 6. The learned trial Court framed necessary issues and after recording the evidence of the parties dismissed the suit. The first appeal which was filed by the plaintiffs has been dismissed by the impugned judgment and decree. 7. In this manner this second appeal has been filed by the appellants. 8. This Court on 27.3.1997 has admitted the second appeal on the following substantial question of law : “Whether, the Courts below have committed an error of law in holding that the appellants-plaintiffs have not acquired easementary rights?” 9. The contention of Shri Sandeep Kochatta, learned counsel for the appellants is that there is overwhelming documentary as well as oral evidence on record in order to demonstrate that plaintiffs are having easementary right to take water from the Well of the first defendant to irrigate their land and therefore learned two Courts below erred in substantial error of law in dismissing the suit. In support of his contention learned counsel has placed reliance on Shankarariah v. Ramiah [AIR 1954 Mysore 184]. It is also put forth by him that even if it is held that plaintiffs are not having any easementary right, since it is proved from the record that the plaintiffs are irrigating their land from the water of the Well of first defendant, therefore, in these state of affairs a decree of injunction should be granted restraining first defendant not to obstruct in taking the water from his Well. 10. On the other hand Shri P.C. Vaya and Shri B.L. Tripathi, learned counsel for the respondent No.1 argued in support of the impugned judgment passed by the two Courts below and submitted that two Courts have concurrently found that plaintiffs have not acquired any easementary right and therefore the suit be dismissed. 11. Having heard learned counsel for parties, I am of the view that this appeal deserves to be allowed in part. 11. Having heard learned counsel for parties, I am of the view that this appeal deserves to be allowed in part. Regarding substantial question of law framed : 12. The plane and simple case of plaintiffs is that their land are adjacent to the land of first defendant in which there is a Well from which plaintiffs are taking water for last 60 years. Unfortunately, though there is specific pleadings of plaintiffs in their plaint that firstly their ancestors and after their death they are taking water from the disputed Well for the last 60 years, there is no finding of either Court on this point. Although there is overwhelming ample material on record in this regard.The plaintiffs have filed certified copy of the khasra of year 1956-57 (Samvat 2013) and in relevant column No.26 it has been mentioned that there is a Well from which Veniram, Govindram, Lakmichand, Musmaat Godawari, Dukhtar, Rupra and Shyobaram are taking water for irrigation purpose. This document is quite old and was at time of Madhya Bharat when the Madhya Bharat Land Revenue and Tenancy Act was applicable and according to section 52 of the said Act, the entries made in the annual village papers are having presumptive value. True, documents Ex.D-5, D-6 and D-7 of the year 1944-45, 1947-48 and 1948-49 are on record wherein it has been mentioned that there is a Well in the land of Rama (first defendant’s predecessor) but on going through these documents it is clear that they are only a licence to cultivate the land and therefore certainly what is required to be written in the khasra, will not find place in these documents. Indeed, relevant documents in this regard is the khasra only because there are relevant columns in which the description of existence of Well etc. is mentioned. 13. On bare perusal of the document Ex.D-1 which is the copy of the sale-deed, this Court finds that first defendant purchased the suit property from one Rama on 23.12.1970. However, much prior to this sale-deed, in the khasra of the year 1956-57, the description of Well is mentioned in the relevant column No.26 as well the names of predecessors of plaintiffs are mentioned that they are taking the water for irrigation purpose from the Well. However, much prior to this sale-deed, in the khasra of the year 1956-57, the description of Well is mentioned in the relevant column No.26 as well the names of predecessors of plaintiffs are mentioned that they are taking the water for irrigation purpose from the Well. In the year 1967-68 (Ex.P-12), 1969-70 (Ex.P-13), 1973-74 to 1976-77 (Ex.P-14), 1978-79 to 1980-81 (Ex.P-15), 1983-84 to 1985-86 (Ex.P-16), 1988-89 to 1991-92 (Ex.P-17), 1993-94 (Ex.P-18), 1988-89 to 1991-92 (Ex.P-19), 1993-94 (Ex.P-20) respectively it has been mentioned that plaintiffs are irrigating the land from the Well which is situated in khasra No.820 of first defendant. Hence, continuously from 1955-56 it is mentioned that firstly ancestors of plaintiffs and after their death the plaintiffs are irrigating their land which are situated adjacent to the land of first defendant in which the disputed Well is situated. In the present case, no khasra entry in rebuttal has been filed by the first defendant showing that these entires are incorrect. The Supreme Court Shri Raja Durga Singh of Solon v.Tholu [ AIR 1963 SC 361 ], has held that if there is any dispute about khasra entries, the latest entries will prevail. But, the present case is on better footings because in the present case there is no dispute about the khasra entries and no khasra in rebuttal has been filed by the first defendant. 14. From 2.10.1959 the M.P. Land Revenue Code came into force and under section 117 of the said Code also the entries made in annual village papers are having the presumptive value. True, the first defendant has filed copy of khasra of the year 1969-70 (Ex.D-4) which states that first defendant is the Bhumiswami of survey No.820 and 821 and in survey No.820 there is a Well. There is no dispute to this preposition for the simple reason that plaintiffs’ own case is that the disputed Well is situated in the land of first defendant survey No.820. Thus, from overwhelming revenue record it is proved that firstly ancestors of plaintiffs and after their death the plaintiffs are taking water from the Well of first defendant situated in survey No.820 and they are irrigating their land which are adjacent to the land of first defendant. Thus, from overwhelming revenue record it is proved that firstly ancestors of plaintiffs and after their death the plaintiffs are taking water from the Well of first defendant situated in survey No.820 and they are irrigating their land which are adjacent to the land of first defendant. The learned two Courts below by ignoring these material documents going to the root of the matter has dismissed the suit of plaintiffs and did not give any finding in respect to taking of water from the disputed Well by the plaintiffs since 1955-56. 15. The question now would rest whether the plaintiffs are having any easementary right to take water from the Well of first defendant or not. True, it is borne out from the record and it is proved by overwhelming oral and documentary evidence placed on record that plaintiffs are taking water from the year 1955-56. The suit was filed on 24.2.1993. Thus, from the documentary evidence Ex.P-1 and Ex.P-12 to P-19, it is proved that for the last 43 years from the date of filing of the suit the plaintiffs are taking water from the Well of the first defendant. The question is whether they have acquired easementary right or not. According to me, the plaintiffs have not at all acquired any easementary right and in this regard section 7 of the Indian Easements Act, 1882 (in short the ‘Act’) is quite clear which speaks about the restriction of easement on certain rights. If the facts of the present case is tested on the touchstone and anvil of illustration (g) to this section it is clear that the owner is having all the right to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel. Thus, I am of the view that because the water in the well is beneath the surface and no defined channels are beneath the surface, therefore, the plaintiffs are not having any easementary right to take water from the well of the first defendant. Thus, I am of the view that because the water in the well is beneath the surface and no defined channels are beneath the surface, therefore, the plaintiffs are not having any easementary right to take water from the well of the first defendant. The House of Lords in The Mayor, Aldermen and Burgesses of the Borough of Bradford v. Edward Pickles [(1895) AC 587], has held that the owner of land containing underground water, which percolates by undefined channels and flows to the land of a neighbour, has the right divert or appropriate the percolating water within his own land so as to deprive his neighbour of it : Chasemore v. Richards [7 HLC 349]. And his right is the same whatever his motive may be, whether bona fide to improve his own land, or maliciously to injure his neighbour, or to induce his neighbour to buy him out. This decision is applicable in the present case also. 16. I do not find any merit in the contention of the learned counsel for the appellants that on the surface of survey No.820 the channels are there and through those channels the water flows to irrigate the land of the plaintiffs and therefore it should be deemed that these channels would come within the ambit of illustration (g) to section 7 of the Act. Indeed, one cannot deny that these channels are not natural but they have been constructed and therefore these channels cannot be termed as ‘defined channels’ used in illustration (g) of the Act and therefore I am of the view that plaintiffs are not having any easementary right to take water from the Well of the first defendant. The decision of Mysore High Court in Shankariah (supra), appears to be per incurium because section 7 and illustration (g) of the Act was not taken into account in that case. 17. Since I have already held herein above that firstly ancestors of plaintiffs and after their death the plaintiffs are taking water from the Well of the first defendant, certainly they are entitled for a decree of injunction because they are taking water for the last 43 years and the first defendant without adopting due procedure prescribed under the law cannot stop the plaintiffs to take water from his Well. In this regard section 38 of the Specific Relief Act, 1963 may be taken into consideration which speaks about perpetual injunction and according to sub-section (1) of section 38 of this Act, a perpetual injunction may be granted to the plaintiffs to prevent the breach of an obligation existing in his favour, whether expressly or by implication. The word ‘obligation’ has also been explained in the definition clause of the said Act and according to section 2(a) ‘obligation’ includes every duty enforeceable by law. Because the plaintiffs are taking water for the last more than 43 years from the Well of the first defendant and if that right is infringed by the first defendant in contravention to the obligation which is existing, certainly a decree of perpetual injunction in that regard can be granted against the first defendant that without obtaining due procedure it cannot stop plaintiffs to take the water from his Well. 18. The substantial question of law is thus answered that although the two Courts below did not err in holding that appellants-plaintiffs have not acquired easementary right, but, certainly they are entitled for a decree of injunction to take water till the first defendant by adopting due procedure prescribed under the law may obtain necessary order for stopping it. 19. Resultantly, this appeal succeeds in part. The decree passed by the two Courts below is modified to the extent that although plaintiffs are not having easementary right to take water from the Well of the first defendant but they are entitled for a decree of injunction to the extent that till first defendant obtain necessary order prescribed under the law from the competent Court he shall not obstruct plaintiffs from taking water from his Well. Let a decree be drawn up accordingly. 20. This appeal is accordingly allowed in part with no order as to costs. .............