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2017 DIGILAW 718 (KAR)

B. K. PUTTANNA v. K. B. GANAPATHY

2017-04-06

K.N.PHANEENDRA

body2017
JUDGMENT : K.N. Phaneendra, J. This Regular Second Appeal is preferred by the defendant, challenging the judgment and decree dated 08.08.2002 passed by the Principal Civil Judge (Junior Division), Madikeri in O.S. No. 164/1985, partly affirmed by the first appellate Court in the judgment dated 22.04.2013 passed in R.A. No. 59/2003, on the file of the Ad-hoc District Judge and Presiding Officer, Fast Track Court, Kodagu, Madikeri. 2. Heard the learned counsel for the appellant as well as the Respondent with regard to the admission of the appeal and perused the records. For the purpose of convenience, the parties in this appeal are referred to as per their ranks in the trial Court. 3. The factual matrix that emanate from the records are that:- The Plaintiff has filed a suit for declaration and for permanent/mandatory injunction that he has perfected his right to use the water by way of prescription and natural right and also for the relief of consequential injunction to restrain the defendant from digging any tank or pond, obstructing free flow of water and also from interfering with peaceful possession and enjoyment of the same. The plaintiff has urged before the trial Court that he is the owner of suit 'A' schedule property situated in Sy. No. 295/2, which is not in dispute. In the said property, he has been growing paddy, areca etc., he has also been in possession of 2nd item of 'A' schedule property i.e., Sy. No. 295/19 which has been converted into Areca garden and he has purchased another property in Sy. No. 293 in the year 1981 from one Vasantha, consisting of old Areca trees. Said Vasantha who was common owner of Sy. Nos. 293 and 295/14, has sold the property bearing Sy. No. 295/14 to the defendant. It is further case of the plaintiff that Sy.No.295/14 is a dry hilly land without any cultivation and at south-western portion of Sy. No. 295/15 is a narrow portion about five cents situated in a lower level consisting trees and it is not at all cultivated and bushes are grown there. The plaintiff had also encroached portion of paisary land in Sy. Nos. 295/1 and planted Areca plants. It is the case of the plaintiff that south-western portion of Sy.No.295/14 are in the nature of valley and that the water coming out of the springs in Sy. Nos. The plaintiff had also encroached portion of paisary land in Sy. Nos. 295/1 and planted Areca plants. It is the case of the plaintiff that south-western portion of Sy.No.295/14 are in the nature of valley and that the water coming out of the springs in Sy. Nos. 293, 295/19 and 295/14 flow throughout the year since time immemorial in a well defined channel from north to south and the plaintiff utilizing the said water to grow paddy and for Areca garden, as the same was the main source of water for irrigation of the property of the plaintiff in Sy. Nos. 295/2 & 295/19 and also Sy.Nos.293 owned by Vasanth and even after his purchase of land bearing Sy. No. 295/14, the defendant has not raised any objection or obstruction at any point of time, so far as using of the water by the plaintiff and thereby, the plaintiff has acquired right to use the water flowing on the defined channel through Sy. Nos. 295/19, 293 and 295/14 and in fact, the defendant, who had intended to dig a tank in the south-western portion of Sy.No. 295/14, in order to store the water which flow to the land of the plaintiff on the southern side, has filed a suit in O.S. No. 149/1985 against the plaintiff on false allegations and obtained an ex-parte injunction making false averments against the plaintiff. As the defendant did not desist himself from doing that, the plaintiff has filed a suit for various relief, as noted above. 4. The defendant, after appearance, filed his written statement, inter alia contending that the plaintiff has encroached upon the land situated in Sy. No. 295/15 belonging to the Government. While denying all the averments made in the plaint, the defendant has contended that he has not dug any water tank in Sy.No. 295/14 subsequent to the suit but he contended that, there was a small water storage tank exist in Sy.No. 295/14 which has nothing to do either with the boundary of the plaintiff's land or with the channel. He denied the allegation that he planned to dig a tank in about 5 cents of area to cut-off the flow of natural water to the plaintiff's land. It is specifically stated that there was no natural channel at all and hence, question of digging any water tank does not arise. He denied the allegation that he planned to dig a tank in about 5 cents of area to cut-off the flow of natural water to the plaintiff's land. It is specifically stated that there was no natural channel at all and hence, question of digging any water tank does not arise. It was further contended that the plaintiff is not entitled for the relief sought in the plaint and therefore, the defendant requested the Court to dismiss the suit. 5. On the basis of the above pleadings of the parties, the trial Court framed the following issues : 1. Does the plaintiff prove that he is the absolute owner of the suit schedule 'A' property? 2. Does the plaintiff further prove that there exists a channel as alleged in para-4 of the plaint? 3. Does the plaintiff further prove that he has perfected right to use the water which flows through a channel in Sy. Nos. 292/19, 293 and 295/14 as alleged? 4. Does the plaintiff further prove that the defendant has no right to dig up a tank in Sy. No. 295/14 land? 5. Does the plaintiff further prove his possession and enjoyment of the suit schedule Sy. Nos. 293 and 295/19 lands? 6. Does the plaintiff further prove the alleged interference by the defendant? 7. Is the suit has not been properly valued for the purpose of payment of court fee? 8. Is the suit has not been properly valued for the purpose of jurisdiction? 9. Is the suit barred by Section 17(c) of the Indian Easement Act? 10. To what relief or reliefs the plaintiff is entitled? 11. What order and what decree? ADDITIONAL ISSUES:- 1. Whether the suit is not within limitation period for mandatory injunction? 2. Whether defendant proves that plaintiff has no natural right as prayed? 6. In order to establish his case, the plaintiff examined himself as PW.1, apart from examining other two witnesses as PWs 2 & 3 and got marked Ex.P.1 to P.12. On behalf of the defendant, the defendant examined himself as DW.1 and examined another witness as DW.2 and closed his side. 7. On appreciation of the oral and documentary evidence and placing reliance on the various decisions, as regards 'riparian rights', the trial Court has answered issue Nos. On behalf of the defendant, the defendant examined himself as DW.1 and examined another witness as DW.2 and closed his side. 7. On appreciation of the oral and documentary evidence and placing reliance on the various decisions, as regards 'riparian rights', the trial Court has answered issue Nos. 1 to 6 and additional issue No. 1 in the affirmative and issue No.8 and additional issue No. 2 in the negative and ultimately decreed the suit of the plaintiff and granted the relief's sought in the plaint, declaring that the plaintiff is the absolute owner of the suit 'A' schedule property, he has perfected his right to use the water flowing from the Sy. No. 295/19, Sy. No. 293 and south-western portion of Sy. No. 295/14 through natural defined channel. Further, the defendant-appellant herein has been restrained from digging any tank in the south-western portion of Sy. No. 295/14 and also from interfering with peaceful possession and enjoyment of the suit schedule property and further the trial Court ordered that, the tank dug by the defendant in Sy. No. 295/14 shall be filled with mud within two months from the date of the order and failure on the part of the defendant, liberty was given to the plaintiff to take the assistance of the Court to execute the order. 8. The above said order of the trial Court would indicate that the defendant did dug a temporary tank in Sy. No. 295/14 which virtually obstruct the natural flow of water to the land of the plaintiff and therefore, in order to prevent reduction of water to the land of the plaintiff, by means of preventing natural flow of the water to the plaintiff's land, the trial Court granted the relief's sought by the plaintiff. 9. Aggrieved by the said judgment and decree passed by the trial Court, the defendant has preferred an appeal in R.A. No. 59/2002, before the Ad-hoc District Judge and Presiding Officer, Fast Track Court, Kodagu, Madikeri. The First Appellate Court, by the impugned judgment dated 22.04.2013 allowed the appeal in part, confirming the judgment of the trial Court, insofar as it relates to right of easement the plaintiff through natural right and permanent injunction is concerned. The First Appellate Court, by the impugned judgment dated 22.04.2013 allowed the appeal in part, confirming the judgment of the trial Court, insofar as it relates to right of easement the plaintiff through natural right and permanent injunction is concerned. However, as regards declaration of right of easement through prescription and declaration of ownership and possession of the plaintiff is concerned, the first appellate Court has held that the prayer are redundant, in view of the nature of the relief of easement is concerned which is one based on the natural right of the riparian owner. The first appellate Court, in fact, culled out the pleadings of the parties and on re-appreciation of the evidence on record, had formulated the following points for its consideration: "Point No. 1: Whether the Appellant/Defendant has shown to the satisfaction of this Court that the Judgment and Decree passed by the trial Court in O.S. No. 164/1985 on dated 08-08-2002 is erroneous, not sustainable in law? Point No. 2: Whether the Appellant/Defendant has shown to the satisfaction of this Court that the interference of this Court in the Judgment and Decree passed by the trial Court in the above said suit is necessary?" 10. After appreciating the material on record, the First Appellate Court has come to the conclusion that the declaration of ownership and possession of the plaintiff is concerned, the said prayer has become redundant, inasmuch as, the suit was with reference easement, which is based on the natural right of the riparian owner. 11. On perusal of the material on record and on appreciation of the evidence let in by both the parties, the trial Court has considered in detail with regard to the ownership of the suit schedule property by the plaintiff which is not in dispute. It is the case of the defendant-appellant that the tank in question was already existed even prior to the litigation and therefore, he is not supposed to close down the said tank and he can utilize the said tank for storage of water for his field. But the trial Court has come to the conclusion that there is a marshy area which is like a spring water flow from the lands of both the plaintiff and the defendant into a defined channel, which originates from Sy. Nos. 295/14, 293 and 295/19 and transforms into a defined channel and runs parallel to Sy. But the trial Court has come to the conclusion that there is a marshy area which is like a spring water flow from the lands of both the plaintiff and the defendant into a defined channel, which originates from Sy. Nos. 295/14, 293 and 295/19 and transforms into a defined channel and runs parallel to Sy. No. 295/19. Existence of marshy area and existence of spring in these three survey numbers has been proved by the plaintiff. Further having regard to the report of the Court Commissioner, wherein the Commissioner has described in his report that there exist spring and channel and if water is allowed to flow through channel, it flows by gravitation to the land of the plaintiff and a pond was built in the land of the defendant. Hence, the trial Court has come to the conclusion that if the defendant allowed to dig tank, the same would affect the natural flow of water to the stream which would definitely affect the plaintiff's right to make use of the water from the stream, as a riparian owner. 12. However, while re-appreciating the material on record, the First Appellate Court has come to the conclusion that the plaintiff being a riparian owner, has a natural right to use the water source from the adjoining land belonging to the defendant which flow through the natural defined channel and that right is to be granted by way of natural right and not by way of prescriptive right. Accordingly, the First Appellate Court has rightly modified the decree granted by the trial Court. 13. In the above facts and circumstances of the case, the entire ambit of cases of plaintiff and defendant has been understood by both the trial Court and the First Appellate Court, on facts, with reference to the flow of natural stream in the land of the plaintiff. 14. Looking to the above factual aspects, either the trial Court or the first appellate Court have not framed any issues with regard to any legal aspects, but both the Courts below have followed the law for the time being in force, as regards utilization of the natural water source that flow through the naturally defined channel, without making permanent obstruction of free flow of such water passing through the land of the defendant. Both the Courts below have merely centralised on the factual aspects of the case and decided the rights of the parties. On re-appreciation of the material on record and the reasoning assigned by both the Courts below, this Court do not find any error in the findings recorded by both the Courts below. Hence, there is no substantial questions of law arising in this appeal for consideration of this Court. Consequently, the appeal deserves to be dismissed at the admission stage, as the same is devoid of merits. 15. Accordingly, the appeal is dismissed. Both the parties are directed to bear their own costs in the peculiar facts and circumstances of the case. 16. In view of the disposal of the main appeal, the interlocutory application 1/2013 for stay does not survive for consideration and accordingly, the same stands disposed of.