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2022 DIGILAW 36 (KAR)

Shashi Hengsu v. Vasu Devadiga

2022-01-05

M.G.S.KAMAL

body2022
JUDGMENT M.G.S. Kamal, J. - This Regular Second Appeal is filed by the appellant/defendant aggrieved by the judgment and decree dated 17.11.2015 passed in Regular Appeal Nos. 42/2007 on the file of Senior Civil Judge, Kundapura (hereinafter referred to as 'the First Appellate Court') in and by which, the First Appellate Court while allowing the appeal of the respondent/plaintiff set aside the judgment and decree dated 08.03.2007 passed in O.S. No. 82/2004 and consequently decreed the suit of the plaintiff restraining the defendant from interfering into 'B' schedule property and damaging the channel existing in the 'B' schedule property. 2. The case of the plaintiff is that he is the absolute owner of the schedule 'A' properties being agricultural land and he being the member of the undivided family is looking after the agricultural operations as a manager of this family. A land in survey No. 265/1 (plaint 'B' schedule property) a government land, which is situated towards the eastern side of the 'A' schedule properties. There is a big rain water reservoir measuring 2.91 acres (plaint 'C' schedule property), in the adjoining land bearing survey No. 211/8 of Paduvary Village. The rain water gets collected in the said reservoir Plaint 'C' Schedule Property and the same is being used by the plaintiff through a channel running on Plaint 'B' Schedule Property. The plaintiff and the nearby land holders are using the water to their paddy fields from the Plaint 'C' Schedule Property, which is the only source of water for their agricultural activities. 3. That Schedule 'A' property is Kadim warg land, which is abutting to the 'B' schedule property. 'B' schedule property forms purported Kumki and the plaintiff is enjoying Kumki privileges over the plaint 'B' schedule property. It is further alleged that the defendant with an intention of grabbing schedule 'B' property has encroached upon the same and he is also blocking the water channel, which is running through schedule 'B' property to schedule 'A' property by constructing mud dhare across it. The plaintiff was constrained to file complaint before the Police and since the matter is of civil nature, the plaintiff was advised to approach the appropriate legal forum. Hence, the plaintiff filed the suit. 4. Defendant on his/her appearance filed written statement denying the plaint averments also disputed the title of the plaintiff over the schedule 'A' properties. The plaintiff was constrained to file complaint before the Police and since the matter is of civil nature, the plaintiff was advised to approach the appropriate legal forum. Hence, the plaintiff filed the suit. 4. Defendant on his/her appearance filed written statement denying the plaint averments also disputed the title of the plaintiff over the schedule 'A' properties. The claim of the purported Kumki privileges by the plaintiff over 'B' schedule property is also denied. Defendant also denied the existence of water channel over schedule 'B' property and also denied the alleged interference by constructing mud dhare. Defendant further contended that she has been in actual peaceful physical possession of 75 cents of land in survey No. 265/1 for over 30 years continuously, openly and uninterruptedly and has thus perfected her right over the said property by adverse possession. The defendant has also put up tiled roof house on the schedule 'B' property and has dug a well, planted 6 coconut trees and cashew trees in the said lands. The property in survey No. 265/1, which is in possession of the defendant never forms kumki to the schedule 'A' properties as claimed by the plaintiff. Hence, sought for dismissal of the suit. 5. The trial Court based on the pleadings framed the following issues for consideration:- 1. Whether the plaintiff proves that he is in lawful possession and enjoyment over the suit 'A' schedule properties? 2. Whether the plaintiff proves the interference by the defendant as stated in para 5 of the plaint? 3. Whether the plaintiff is entitled for the reliefs claimed? 4. What decree or order? 6. Plaintiff examined himself as P.W. 1 and another witness as P.W. 2 exhibited 27 documents marked as Exs. P1 to P27. Defendant on the other hand examined three witnesses as D.W. 1 to D.W. 3 and produced no documentary evidence. On appreciation of the evidence, the trial Court by its judgment and decree dated 08.03.2007 dismissed the suit of the plaintiff with cost. Being aggrieved by the said judgment and decree, the plaintiff preferred appeal in R.A. No. 42/2007 considering the grounds urged in the appeal memorandum. The First Appellate Court framed the following points for its consideration:- 1. Whether the trial Court is justified in holding that there was no interference of the defendant over the suit schedule property? 2. Being aggrieved by the said judgment and decree, the plaintiff preferred appeal in R.A. No. 42/2007 considering the grounds urged in the appeal memorandum. The First Appellate Court framed the following points for its consideration:- 1. Whether the trial Court is justified in holding that there was no interference of the defendant over the suit schedule property? 2. Whether the judgment passed by the Trial Court is illegal capricious and liable to set-aside and interference of this Court is warranted? 3. What order/decree? 7. The First Appellate Court by impugned judgment and decree dated 17.11.2015, allowed the appeal decreed the suit as referred to hereinabove. Aggrieved by the same, the defendant is before this Court in this second appeal. 8. Learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submits that the First Appellate Court grossly erred in decreeing the suit without there being any evidence with regard to existence of water channel over the 'B' schedule property. He further submits that the trial Court had rightly appreciated and declined to accept the documents at Ex. P6 as it was fabricated by the plaintiff. The trial Court had also rightly declined to accept the report of the commissioner on the premise that the commissioner report was prepared on the instruction of the plaintiff since there is a serious dispute with regard to very existence of the water channel over the 'B' schedule property and without there being any acceptable evidence, the First Appellate Court ought not to have decreed the suit. He further submits that the defendant has been in possession of 75 cents of land in survey No. 265/1, which includes 'B' schedule property. The judgment and decree impugned directing the defendant not to interfere with the 'B' schedule property would adversely affect her interest. This aspect of the matter has not been considered by the First Appellate Court requiring interference by this Court. He further submits that in view of the defendant being in possession of schedule 'B' property over 30 years, she could not have been restrained by the order of injunction as done by the First Appellate Court. Thus, the appeal gives rise to a substantial question of law to be considered. Hence, seeks for allowing of the appeal. 9. He further submits that in view of the defendant being in possession of schedule 'B' property over 30 years, she could not have been restrained by the order of injunction as done by the First Appellate Court. Thus, the appeal gives rise to a substantial question of law to be considered. Hence, seeks for allowing of the appeal. 9. On the other hand, learned counsel for respondent/plaintiff justifying the order passed by the First Appellate Court submits that the relief sought for by the plaintiff is with respect to the water source/channel which is running from schedule 'C' property through schedule 'B' property to the schedule 'A' properties which sought to be illegally obstructed by the defendant by constructing mud dhare affecting the rights of the plaintiff. He further submits schedule 'B' property being Kumki, the plaintiff is entitled to derive the benefits/privileges for the purpose of cultivating schedule 'A' properties. It is these two rights/privileges, namely; right to draw water and kumki benefits which are sought to be obstructed by the defendant constraining the plaintiff to file a suit seeking injunctive relief. He submits the existence of the water channel is established by the sketch at Ex. P6 and also by the report of the commissioner. By drawing attention of the Court to the depositions of DWs. 2 and 3. He submits that admittedly 'C' schedule property, where the water reservoir existing is the only source of water for cultivation by the surrounding land owners. The plaintiff's property situating abutting schedule 'B' property, derives the water from 'C' schedule property through schedule 'B' property, which fact has not been disputed by the defendant's witnesses proves beyond any doubt the existence of water channel. Thus, he submits no substantial question of law is involved in this matter warranting interference with the impugned judgment and decree. 10. It is necessary to note that learned counsel for the appellant/defendant as well as respondent/plaintiff submit both the plaintiff and the defendant have made claim of ownership over the Schedule 'B' Property by filing necessary applications before the Revenue Authorities for regularization of their respective occupation/claims and the said applications are pending consideration. There is no dispute with regard to this crucial aspect of the matter that schedule 'B' property remains government land, notwithstanding the claim of the defendant of she having perfected the title by way of adverse possession over the same. There is no dispute with regard to this crucial aspect of the matter that schedule 'B' property remains government land, notwithstanding the claim of the defendant of she having perfected the title by way of adverse possession over the same. It is necessary to note that schedule 'C' property, which is a water reservoir caters to the agricultural requirement of the surrounding land holders. The said water reservoir is the only source of water for cultivation. As rightly noted and appreciated by the First Appellate Court, Ex. P.6 read with the Commissioner report and depositions of DWs. 2 and 3 would establish existence of water channel running from Schedule 'C' Property through schedule 'B' property to the schedule 'A' properties. This finding on the factual aspect of the matter cannot be interfered in this regular second appeal. The issue being limited, that is the decree of the First Appellate Court directing the appellant/defendant not to cause obstruction in the plaintiff's right of enjoyment of this water source and deriving purported Kumki benefits in the schedule 'B' property, which is admittedly a government land, leaves no further scope for interference in the impugned judgment and decree. 11. Learned counsel for appellant/defendant vehemently submitted that though the plaintiff is not seeking any right over the 'B' schedule property except privilege of drawing water through the water channel and Kumki benefits thereof, the impugned order would be interpreted detriment to the interest of the appellant/defendant, who is in occupation of 'B' Schedule Property over 30 years and her application is pending consideration. Aptly replied by the learned counsel for the respondent/plaintiff is that no proprietary right is being claimed by the plaintiff in the suit except the right of drawing water through the channel and the purported Kumki privileges from the 'B' Schedule Property which is a statutory entitlement of the plaintiff in view of the nature of the land and same cannot be denied or obstructed by the appellant/defendant. 12. Be that as it may. In view of the admitted fact that both the plaintiff and the defendant having filed their applications for regularization of their occupation over the 'B' schedule property, which is pending consideration, their claims relating to proprietary rights if any, over the 'B' Schedule Property would be subject to outcome of the said applications. 13. 12. Be that as it may. In view of the admitted fact that both the plaintiff and the defendant having filed their applications for regularization of their occupation over the 'B' schedule property, which is pending consideration, their claims relating to proprietary rights if any, over the 'B' Schedule Property would be subject to outcome of the said applications. 13. As regards the right of the plaintiff for the limited purpose of drawing water from 'C' Schedule Property through the channel running on schedule 'B' property and also deriving purported Kumki benefits, in view of the schedule 'B' property being the government land, the judgment and decree passed by the First Appellate Court may have to be understood only to that extent of preserving said rights/privileges of the plaintiff. Since the First Appellate Court has taken all these aspects into consideration, this Court is of the considered view that no substantial question of law involves for consideration. Hence, the appeal is dismissed.