ORDER : Petitioners herein being the defendants in the respondents’ civil suit O.S. No.82/2017 have called in question the judgment and order dated 09.10.2018, at Annexure-A, rendered by the learned Senior Civil Judge, Bilagi, in respondents’ M.A. No.3/2018, whereby the petitioners are restrained from obstructing to the laying of water course beneath their suit lands. This restraint is conditioned by a direction to the respondents herein to pay inter alia to the petitioners the compensation. 2. After service of notice, the contesting respondents/plaintiffs have entered appearance through their counsel, Sri.Jayakumar Patil, Senior Counsel, who make submissions in justification of the impugned order and resisting the writ petitions. 3. Learned counsel for the petitioners, Sri. Anant Hegde finds fault with the impugned order on the grounds that, (a) the Appellate Court ought to have considered respondents’ application filed under Order XLI Rule 27 of the Code of Civil Procedure seeking it’s leave to produce additional evidence, along with the main appeal itself, and this having not been done the impugned order is liable to be set at naught; (b) the order of Tahsildar granting permission to the respondents-sugar factories to lay the water course beneath the land of the petitioners itself is without jurisdiction since it is not for the agricultural purpose; and (c) Writ Petitioners’ appeal challenging the Tahsildar’s order granting permission under Section 90A of the Karnataka Land Revenue Act, 1964 (hereafter the ‘Act’), is pending before the Assistant Commissioner who on account of imminent election duty is not in a position to take up the same for consideration immediately and therefore, the lower Appellate Court ought to have deferred the consideration of the appeal. 4. Learned Senior Advocate, Sri Jayakumar S.Patil, appearing for the counsel on record for the respondent-plaintiffs per contra submits that the sugar factories being the agro based industries intend to lay the pipeline five feet beneath the land of the petitioners; already, out of 21 acres, the pipeline is laid in 20 acres with the agreements reached between his clients and the other land owners; these agreements were sought to be produced before the lower Appellate Court which granted leave for production; it is not an inviolable rule that, in no circumstances, the application under Order XLI Rule 27 of CPC should be heard along with the main matter. 5. Learned Senior Advocate, Sri. 5. Learned Senior Advocate, Sri. Patil further submits that State Legislature has introduced a new Chapter VII-A to the Act vide Amendment of 1986 with effect from 10.05.1986 enabling laying of water course through and beneath the land of others, of course, subject to certain conditions of which payment of compensation is one; the Tahsildar being the Competent Authority has already accorded the permission under clause (a) of sub-section (2) of Section 90A since the petitioners did not come forward for executing the agreements; the agreements executed by other land owners which were permitted to be produced by the lower Appellate Court, even if are excluded from the record of evidence, still the Tahsildar’s order constitutes a new substratum acting upon which the impugned order has been made and the same is unexceptionable. 6. I have heard the learned counsel for the petitioner and the learned Senior Advocate for the respondents. I have perused the petition papers and I have adverted to the Rulings cited at the bar. 7. The first contention of the petitioners that the lower Appellate Court ought to have taken respondents’ application under Order XLI Rule 27 of CPC seeking leave to produce additional evidence along with the main matter and not separately is supported by the decision of the Apex Court in the case of State of Rajasthan Vs. T.N.Sahani reported in (2001)10 SCC 619 , wherein at paragraph No.4 reads as under: “4. It may be pointed out that this Court as long back as in 1963 in K. Venkataramiah v. Seetharama Reddy, pointed out the scope of unamended provision of Order 41 Rule 27(c) that though there might well be cases where even though the court found that it was able to pronounce the judgment on the state of the record as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 21(b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate.” 8. However, the above will not strengthen the case of the petitioner for the grant of relief namely for setting aside the impugned order for the reasons that follow infra. The contention of Mr.Patil to the contrary is not convincing since no case is made out for brining the stand of the respondents within the exceptions if any, to the General Rule laid down by the Apex Court in the aforesaid judgment. 9. The contention of Shri Patil that by the application filed under Order XLI Rule 27 of CPC, the respondents had sought for permission to produce copies of the agreements which other land owners had entered into for facilitating laying of the water course beneath their lands and even if all these agreements are removed from the records of evidence, still the Tahsildar’s orders granting permission under Clause (a) of sub-Section (2) of Section 90-A of the Act, would constitute a new substratum which has been justifiable acted upon by the Court below has full force, especially in petitioners’ challenge to the said orders, the Assistant Commissioner has not yet granted any interim stay. 10. 10. Relevant portion of sub-Section (1) of Section 90-A reads as under: “90-A. Construction of Water Course through land belonging to other persons.— (1) If the State Government or a co-operative farm or any person (hereinafter in this chapter called the applicant), desires to construct a water course to take water for the purpose of agriculture from a source of water to which he or the State Government or such farm is entitled, but such water course is to be constructed through any land which belongs to, or is in possession of, another person (hereinafter in this Chapter called the neighbouring holder), and if no private agreement is arrived at for such construction between the applicant and the neighbouring holder, the person desiring to construct the water course may make an application in the prescribed form to the Tahsildar.” Clause (a) of sub-Section (2) reads as under: “(2) On receipt of the application, if the Tahsildar after making an inquiry and after giving to the neighbouring holder and all other persons interested in the land an opportunity of stating any objection to the application, is satisfied that for ensuring the full and efficient use for agriculture of the land belonging to the applicant, it is necessary to construct the water course, he may by order in writing direct the neighbouring holder to permit the applicant to construct the water course subject to the following conditions, namely:— (a) the water course shall be constructed through such land in such direction and manner as is agreed upon by the parties or failing such agreement, as directed by the Tahsildar so as to cause as little damage to the land through which it is constructed, as may be possible; xxxxx as the Tahsildar may decide to be reasonable.” Section 90-A of the Act apparently is a peace of Legislation intended for agrarian reforms. The good olden view that the land from the center of the earth upto the heaven belongs to the owner has been dead and gone. Legislations are replete with instances where the State retains ownership over the land beneath the surface; it is open to the State to grant certain rights to the third parties subject to certain conditions to make limited use of sub-soil without materially affecting ownership rights of others. Legislations are replete with instances where the State retains ownership over the land beneath the surface; it is open to the State to grant certain rights to the third parties subject to certain conditions to make limited use of sub-soil without materially affecting ownership rights of others. The scheme of Section 90-A apparently is for the benefit of the Society since it facilitates agricultural production by enhanced levels of irrigation facility. Sub-Section (1) of Section 90-A provides for laying of water course beneath the surface of the land belonging to others with agreement whereas sub-Section (2) provides an alternate compulsive way where the owner of the land is not agreeable. 11. In the instant case, all owners of other lands having agreed and the petitioners not having agreed, the Tahsildar invoked his power under sub-Section (2) of the Act and permitted the respondents herein to lay water course beneath the lands of the petitioners. The challenge to the same before the Assistant Commissioner is yet to be decided and there is not yet interim stay granted to the same, either. This fact matrix constitutes a new substratum which the lower appellate Court has rightly acted upon to grant relief to the respondents herein by making the impugned order, which cannot be faltered on the grounds urged by the petitioners. The Court while making the discretionary order has also made a provision for payment of compensation to the petitioners, and thus the likely prejudice to them is mitigated. 12. The learned Senior Advocate Mr. Patil fairly submits that he has no objection for directing the Assistant Commissioner to take up the appeal for expeditious disposal and that in the event petitioners’ succeed therein, these respondents on their own would removed the water course/pipeline which they are laying in the petition lands on the strength of the order impugned herein, of course subject to the respondents availing all lawful remedies there-against. This is a fair gesture, which the writ Court appreciates. 13. The contention of Mr. This is a fair gesture, which the writ Court appreciates. 13. The contention of Mr. Hegde that even after the Tahsildar grants an order under Clause (a) sub-Section (2) of Section 90-A of the Act, still the respondents cannot undertake the work of laying the water course till after they execute an agreement in the prescribed form in favour of the neighbouring holder i.e., the petitioners herein is founded on literal interpretation of clause (f) of sub-Section (2) of Section 90-A, which reads as under: “(f) The applicant shall within the prescribed period execute an agreement in the prescribed form in favour of the neghbouring holder.” The draftsman of this clause appears to have employed the word “agreement” inadvertently and in the place of “undertaking”. Even the other words namely “in favour of the neighbouring holder” also do not loosen this view inasmuch as an argument to the contrary in tune with Mr.Hegde’s view will liquidate the very purpose and intent of sub-Section (2) and would take the case to sub-Section (1) partially. The spirit of sub-Section (2) cannot be lost sight of inasmuch as the said sub-Section invokable in the absence of consensus between the applicants and neighbouring holders in terms of sub-Section (1). This view is supported by the text of the prescribed form appended to the Rules whose unnecessary reproduction would only lengthen this judgment. To put it succinctly, the Clause (f) of sub-Section (2) of Section 90-A is to be read down as requiring the applicants to execute an undertaking in favour of the Tahsildar and not in favour of the neighbouring holders. However, if the neighbouring holders are agreeable to have such an agreement/undertaking, there is nothing in the text of the Section that prohibits the same. 14. The contention of Mr. Hegde that the respondents could not have applied for permission under Section 90-A at all since they are not agriculturists who want to lay the water course for the benefit of agriculture on their lands is again a bit difficult to accept. The expression agriculture needs to be granted widest connotation and it may include agro-based industries such as the sugar factories. The expression agriculture needs to be granted widest connotation and it may include agro-based industries such as the sugar factories. However, since this aspect is been considered in the petitioners appeal before the Assistant Commissioner, this Court leave the debate to go on there itself so that in an appropriate case the views of the revenue officials like the Assistant Commissioner/ Deputy Commissioner may be an in put for the interpretation of this Chapter. 15. The contention of Mr. Hegde that his appeal against the order of the Tahsildar should not be allowed to be kept pending indefinitely is appreciable. Since the rights of the parties are involved in respect of the lands, it is desirable that the Assistant Commissioner is concerned shall take up the matter at the earliest and dispose off the same after hearing all the stake holders without giving scope for any allegations and also for separate intervention of this Court. The imminent Parliamentary Elections are also kept in view while making this observations. 16. In the above circumstances, these writ petitions fail. The undertaking given on behalf of the respondents sugar factories for removal of the water course/ pipeline from the lands of the petitioner in the event the petitioners succeed in their appeal against the order of the Tahsildar pending before the Assistant Commissioner, subject to the respondents availing any legal remedies there-against, is placed on record. It is needless to mention that the observations made hereinabove being confined to the disposal off these writ petitions shall not influence in any way the consideration of the petitioners’ appeal by the Assistant Commissioner in accordance with law. No costs.