Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 707 (KAR)

H. M. Suresh v. H. M. Prakash

2017-04-06

K.N.PHANEFNDRA

body2017
JUDGMENT : 1. Heard the learned counsel for the appellant and the respondent. 2. Earlier this court on 8.8.2013, after hearing both the parties has framed the following substantial question of law: "Whether the lower appellate court has rightly appreciated the evidence available on record for reversing the finding of trial Court?" 3. After hearing both the counsels on the entire case of the parties, I am of the opinion that the substantial question of law arises for consideration shall be re-framed in the following manner: "Whether the first appellate court has committed any serious legal error in holding that, the suit of the plaintiff is maintainable before the trial Court, and that the first appellate court has wrongly considered the provisions of the Irrigation Act? 4. The pleadings of the parties before the trial Court shows that the plaintiff has filed a suit for various reliefs against the defendant, i.e., declaring that the defendant/appellant has no right to dig the suit Schedule hikkal (canal) and directing the defendant to close the suit Schedule hikkal by issuing an order of Mandatory injunction or in the alternative, permit the plaintiff to close the hikkal at the cost of the defendant and for such other reliefs and for costs. In order to claim the said relief, the plaintiff has stated in his pleadings that the lands bearing Survey No. 187/2 and 188/1 are the properties of the plaintiff. The defendant's property is situated towards the south of the plaintiff's property. It is the case of the plaintiff that as per the sketch appended to the plaint, the hikkal (natural water course, through water canal) was flowing through 'EFGH' portion and at point 'G' it takes deviation and then it passes through the hikkal marked as 'HJ'. The said portion marked in the plaint sketch is a channel, constructed and maintained by the Government. It is the case of the plaintiff that in order to short cut the above said hikkal and to take the water course directly to the land of the defendant, the defendant illegally dug and constructed a private water course marked as 'ABCD' which falls within the middle portion of the land of the plaintiff in Survey No 188/1. Therefore, the plaintiff has sought for such declarations directing the defendant to close down the said illegal construction of the channel marked as 'ABCD'. Therefore, the plaintiff has sought for such declarations directing the defendant to close down the said illegal construction of the channel marked as 'ABCD'. The defendant who is the land owner whose land is situated adjacent to the plaintiff's land on the southern side has taken up the contention that the said water course marked as 'ABCD' in the plaint is not a newly constructed water channel and the said channel has been in existence from time immemorial and he has been using the water through the said hikkal or a channel in order to feed his lands. It is also the contention of the defendant that if the water course as stated by the plaintiff which passes in the line marked as 'EFGH' and then after deviation passes through 'H' and 'J' line, the said canal is much lower in the strata compared to the land of the defendant. Therefore, through that water course, the defendant cannot in any manner feed his lands. Therefore, he contended that the said channel shown as hikkal by the plaintiff in the plaint sketch cannot be accepted. It is contended that in fact, the Government has dug the channel in 'ABCD' portion in the land of the plaintiff since long it is in existence and the defendant has been feeding his lands through that channel marked as ABCD'. With these pleadings, the parties have proceeded to lead evidence. 5. The trial Court on the basis of the above said contentious pleadings, framed the following issues: (1) Whether the plaintiff proves that the defendant has illegally dug 'ABCD' hikkal in the suit property? (2) Whether the defendant proves that 'FBCDA' hikkal is in existence since decades as claimed in the written statement? (3) Whether the plaintiff is entitled for the relief of declaration as prayed in the plaint? (4) Whether the plaintiff is entitled for the relief of Mandatory injunction as prayed in the plaint? (5) What order or decree? 6. The plaintiff examined himself as PW1 and got marked Exs.P-1 to P-13. The defendant examined himself as DW-1 and got marked Exs.D-1 to D-9. The trial Court though not framed any issue with regard to the maintainability of the suit or the jurisdiction of the court, selected issue Nos.3 & 4 in order to answer the jurisdiction of the court and maintainability of the suit. The defendant examined himself as DW-1 and got marked Exs.D-1 to D-9. The trial Court though not framed any issue with regard to the maintainability of the suit or the jurisdiction of the court, selected issue Nos.3 & 4 in order to answer the jurisdiction of the court and maintainability of the suit. The trial Court in fact, as could be seen from its judgment, has not at all giver; any finding so far as issue Nos.1 & 2 are concerned. The trial Court mainly relied upon the ruling of this court reported in ILR 1989 KAR 705 between Abdul Jahbars. Devarajaiah, to come to the conclusion that the Civil Courts have no jurisdiction to deal with the irrigation matter. The aggrieved parties have to approach the Irrigation Officer under the Act and the Irrigation Officer of the rank of an Assistant Commissioner or Assistant Engineer as the case may be as provided u/s.3(6) of the Act. Upon a dispute having been preferred to the Irrigation Officer u/s.12 of the Act, the latter is expected to hold a formal enquiry and resolve the same in terms of the enquiry held by him. If the dispute is not satisfactorily resolved off by the Irrigation Officer, then it would be open to the aggrieved person to file an appeal to the jurisdictional Deputy Commissioner and the Deputy Commissioner's order becomes final and however, the said order of the Deputy Commissioner is subject to the decree of a Civil Court if approached therefrom. Merely relying upon the above said ruling, the trial Court has come to the conclusion that the parties have already filed the applications before the Irrigation Officer without waiting for the decision of the Irrigation Officer, the plaintiff has rushed to the court for his reliefs. The court has come to the conclusion that in view of the provisions under the Irrigation Act, the suit is not maintainable u/s.69(5) of the Karnataka Irrigation Act, 1965 and accordingly, dismissed the suit. 7. Aggrieved by the said judgment, the plaintiff has approached the Civil Judge (Sr. Dvn.) Nanjangud by way of an appeal in RA No. 51/2011, the first appellate court not only reversed the above said finding of the trial Court with reference to the jurisdiction of the Civil Court, but also decided the case even giving finding of the fact on issue Nos. Dvn.) Nanjangud by way of an appeal in RA No. 51/2011, the first appellate court not only reversed the above said finding of the trial Court with reference to the jurisdiction of the Civil Court, but also decided the case even giving finding of the fact on issue Nos. 1 to 4 and in fact granted the relief to the plaintiff as prayed for. Against that judgment passed by the first appellate court, the defendant is before this court. The first appellate court while dealing with the above said point has come to the conclusion that the dispute is between the parties with reference to the private channel in the land of the plaintiff. It has observed that the Irrigation Act is only applicable when there is any dispute with regard to the water course, taking of water in a defined channel which are constructed and maintained by the Government. Otherwise, if there is any allegations that private party has dug the channel which is not a Government notified channel and it is independently dug, then the civil court gets jurisdiction to decide that particular aspect. Having come to such conclusion, the first appellate court has reversed the judgment of the trial Court and also dispose of the appeal on merits, answering the other issues framed by the trial Court, which were not answered by the trial Court. 8. In the above said background, this court has to first see whether the Irrigation Act is applicable so as to non suit the plaintiff as held by the trial Court or whether the Irrigation Act is not applicable so as to provide an opportunity to the plaintiff to prosecute his suit, and requesting the trial Court to answer all the issues after providing opportunity to the parties. In this background, it is just and necessary to have a cursory look at the provisions of the Irrigation Act. Of course the provision of Section 69 of the Irrigation Act, bars the jurisdiction of the Civil Court from entertaining the suit. Section 69(1) to (4) of the Act are not so much important so far as this case is concerned. Therefore, Section 69(5) is the relevant provision which is necessarily to be considered by this court which reads thus - "69. Section 69(1) to (4) of the Act are not so much important so far as this case is concerned. Therefore, Section 69(5) is the relevant provision which is necessarily to be considered by this court which reads thus - "69. Bar of certain proceedings etc., (1) Xxx to (4) Xxx (5) Save as otherwise expressly provided in this Act, no Civil Court shall entertain any suit instituted in respect of any matter to which the Act applies." The above said provision clearly discloses that the civil courts gets no jurisdiction in respect of any matter to which the remedy is provided under the Irrigation Act. In this background, the other provision to be noted is Section 12 of the Karnataka Irrigation Act. Section 12 of the Karnataka Irrigation Act, under which, the Irrigation Officer may after the publication of the Notification u/s.11, issue an order to any person causing or having control over any such obstruction, to remove or modify the same as may be specified in such an order. It is worth to note here, Section 11 also, because only when the Irrigation Officer found any obstruction to the Irrigation work, then only he can pass appropriate order u/s.12 of the Act. Section 11 of the Act reads thus - "11. It is worth to note here, Section 11 also, because only when the Irrigation Officer found any obstruction to the Irrigation work, then only he can pass appropriate order u/s.12 of the Act. Section 11 of the Act reads thus - "11. Government may prohibit obstructions of rivers, etc., within certain limits - Whenever it appears to the State Government that injury to the public health, or public convenience, or to any irrigation work or to any land for which supply from an irrigation work is available, has arisen or may arise from the obstruction of any river; stream or natural drainage channel, the State Government may, by Notification, prohibit within limits to he defined in such Notification, or may, within such limits, order the removal or other modification of such obstruction; and thereupon so much of the said river, stream or natural drainage channel as is comprised within such limits, shall be deemed to be a drainage work as defined in Section 2." Section 11, if it is meticulously read, it clearly discloses that the injury to the public health or public convenience or to any irrigation work or to any land for which supply from an irrigation work is available, has arisen or may arise from the obstruction of any river, stream or natural drainage channel, the State Government may, by Notification, prohibit the said obstruction within limits defined in such Notification. If any violation of such Notification, then the Irrigation Officer would get the jurisdiction to pass appropriate order. This court also should see what is the meant by Irrigation work. The Irrigation work is also defined u/s. 2(h) of the Act which reads thus - (h) "irrigation work" includes,- (i) all reservoirs, tanks, wells, anicuts, bandharas, ponds, spring ponds, canals, field-channels, thalaoariqes, pipes, channels, aqueducts and sluices constructed, maintained or controlled wholly or partly by Government for the supply, conveyance or storage of water; (ii) all works, embankments, structures, supply and escape channels, connected with such reservoirs, tanks, anicuts. bandharas, channels, canals, pipes, sluices, and all roads constructed for facilitating the construction or maintenance of such reservoirs, tanks, anicuts, bandharas, canals, channels pipes and sluices: (iii) all drainage works and flood embankments; (iv) any part of a river, stream, lake, natural collection of water or natural drainage channel to which the State Government may apply the provisions of section 5 or of which the water has been applied or used before the commencement of this Act for the purpose of any existing irrigation work; (v) all lands appropriated by the State Government for the purpose of such reservoirs, tanks, anicuts, bandharas, canals, channels, pipes, sluices and all buildings, machinery, fences, gates and other erections upon such lands." (Emphasis Supplied) On careful meticulous reading of this provision, it clearly discloses that Irrigation work is only with reference to reservoirs, tanks, wells, anicuts, bandharas, ponds, spring ponds, canals, field-channels, thalapariges, pipes, channels, aqueducts and sluices constructed, maintained or controlled wholly or partly by Government for the supply, conveyance or storage of water. The rest of the provision may not be so important sofar as this case is concerned. If the provisions are properly understood, the Irrigation Officer can only pass appropriate order if the irrigation work is affected or any Notification of the Government is violated by any private individual. Here, it is manifest to express that it is the irrigation work which is controlled or maintained wholly or partly by the Government, then only, the Irrigation Officer will get jurisdiction to decide the dispute between the parties and pass appropriate order u/s.12 of the Act, otherwise, the Act is not be applicable. 9. Now, returning back to the facts of this particular case, as per the allegations made in the plaint, the plaintiff has specifically taken up the contention that the Irrigation work i.e., the channel as shown in the plaint sketch by the plaintiff as 'EFGHI' [is the hikkal or the channel or the water coursel] has been in existence since long which is the Government notified area and it is the Government channel constructed and maintained by the Government. It is the specific case of the plaintiff that 'ABCD' new water canal or channel has been illegally dug by the defendant, in the land of the plaintiff. It is the specific case of the plaintiff that 'ABCD' new water canal or channel has been illegally dug by the defendant, in the land of the plaintiff. Therefore, he sought for declaration that the said act of the defendant is illegal and sought for the relief directing the defendant to close down the said water course. 10. Unless and until the trial Court comes to a definite conclusion that 'ABCD' portion is a Government channel constructed or maintained partly or wholly by the Government, which cannot relegate the parties to the authority under the Irrigation Act. It is the fundamental duty of the trial Court to hear the parties after providing opportunity to both the parties and find out whether 'ABCD' portion is a Government channel or the water course is maintained by the Government wholly or partly, then the court can take a decision whether the suit is maintainable or not. If for any reason after recording evidence and hearing the parties, the court comes to the conclusion that 'ABCD' is the portion which is not in the Government control or constructed or maintained wholly or partly by the Government, but if the court is of the opinion that the defendant dug the Channel illegally, then the court can grant appropriate relief in favour of the plaintiff. In such an eventuality, irrespective of the fact that the plaintiff or the defendant had already approached the Irrigation Officer the jurisdiction of the Civil Court is not ousted. 11. In the above said facts and circumstances of the case, I am of the opinion that the first appellate court has committed a serious legal error in pre judging the issue and giving opinion that the Act is not all applicable and the Civil Court has got jurisdiction. 12. 11. In the above said facts and circumstances of the case, I am of the opinion that the first appellate court has committed a serious legal error in pre judging the issue and giving opinion that the Act is not all applicable and the Civil Court has got jurisdiction. 12. Further, as could be seen from Order XVI Rule 23 of CPC it provides that - Remand of case by Appellate Court - Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re -admit the suit under its original number in the register of civil suits, and proceed to the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence if any recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand." 13. The above provision clearly empowers the appellate court, whenever a finding on the preliminary point given by the trial Court is set aside, normally the first appellate court should not venture upon to dispose of the matter on merits by giving finding on the other issues, where no evidence of the trial Court is available. 14. As I have already mentioned above, the trial Court has not at all given any finding on any of the issues framed by it, but selected issue Nos.3 & 4 to find out its jurisdiction or the maintainability of the suit, though those issues are not specifically referable to the jurisdiction of the court or maintainability of the suit. The trial Court has committed serious legal error in not framing proper issue with regard to the maintainability of the suit. It is not that the court cannot frame an issue even though there are no pleadings of the parties. The trial Court has committed serious legal error in not framing proper issue with regard to the maintainability of the suit. It is not that the court cannot frame an issue even though there are no pleadings of the parties. If the court is of the opinion that under any of the substantive law or procedural law, oust the Jurisdiction of a civil Court, then the court itself can frame such issue for the purpose of convenience and to dispose the suit. In this background, I am of the opinion that the trial Court should have framed an issue with regard to the maintainability of the suit along with the other issues already framed and answered all the issues together. 15. Having come to the above said conclusion, it is just and necessary to say here that neither the trial Court nor the first appellate court could have decided the jurisdictional point or maintainability of the suit as a preliminary point and dispose of the appeal or the suit. What the trial Court could have done is, after providing opportunity to both the parties to lead evidence and then after hearing the parties, the court has to give its finding first whether 'ABCD' portion is a channel constructed, maintained or controlled wholly or partly by the Government (Irrigation Department). If the answer is 'yes' then only the court can see whether the court has got jurisdiction to try the same in view of Section 65 of the Karnataka Irrigation Act. If the answer of the trial Court is 'No' the trial Court is of the opinion that the defendant has illegally, constructed a channel and took the water course marked as 'ABCD' in the plaint sketch in order to facilitate his land with the channel water, in such an eventuality, the suit is very well maintainable and the court can grant the remedy to the plaintiff in accordance with law. Therefore, in my opinion, the first appellate court has not committed any serious legal error in temporarily holding that the suit is maintainable but the trial Court has committed serious legal error in answering all the issues framed by the trial Court without there being a finding recorded by the trial Court. Therefore, in my opinion, the first appellate court has not committed any serious legal error in temporarily holding that the suit is maintainable but the trial Court has committed serious legal error in answering all the issues framed by the trial Court without there being a finding recorded by the trial Court. Hence, in view of the order XLV Rule 23 of CPC I am of the opinion that it is a fit case to remit the matter to the trial Court with certain observations. Hence, I answer the above substantial question of law in favour of the appellant and proceed to pass the following: ORDER The appeal is allowed. Consequently, the judgment and decree passed by the trial Court in OS No.370/2008 and the first appellate court in RA No.51/2011 dated 28.11.2012 are hereby set aside. The matter stands remitted to the trial Court with a direction that the trial Court has to frame an additional issue along with the issues already framed to the effect that - "Whether the suit is maintainable before the court in view of Section 65 of the Karnataka Irrigation Act, 1965?" The trial Court has to give opportunity to both the parties to lead evidence to establish whether the water course mentioned in the plaint sketch as 'ABCD' is a channel or water course constructed, maintained or controlled wholly or partly by the Government or whether the said 'ABCD' portion has been dug by the defendant illegally and without the permission of the irrigation department or the plaintiff. Thereafter, the court has to give its finding on the maintainability issue and then if the court is of the opinion that the suit is maintainable and the irrigation Act is not applicable, then specifically by giving finding on issue Nos.1 to 4, the suit has to be disposed of. Under the peculiar circumstances of the case, the parties have to bear their costs. As the matter is of the year 2008, it is just and necessary for this court to direct both the parties to co-operate with the trial court to dispose of the matter as expeditiously as possible. The trial Court shall also make all its endeavour to dispose of the suit preferably within six months from the date of receipt of the copy of this order.