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2024 DIGILAW 1557 (AP)

Vepuri Ratta rao, @ Rattaiah,, S/o Jagannadham v. Gottupulla Koteswara Rao, S/o. Chandraiah

2024-11-20

B.SYAMSUNDER

body2024
JUDGMENT : B SYAMSUNDER, J. 1. The first defendant in O.S.No.246 of 1990 on the file of Principal District Munsif Court, Eluru, is appellant herein. The first respondent is plaintiff and Respondent Nos.2 to 4 are defendant Nos.2 to 4 in the suit. 2. The appellant/Respondent Nos.2 to 4 and first respondent herein after referred to as defendant Nos.1 to 4 and plaintiff as arrayed before the trial Court. 3. The plaintiff/1st respondent instituted the suit against defendants seeking relief of mandatory injunction directing the defendants to restore current pipes "P, P1? at point "ABCD? shown in the plaint plan to its original position in the irrigation channel and to grant permanent injunction restraining defendants from interfering with current pipes "P, P1? at "ABCD? point shown in the plaint plan and for costs. 4. It is the contention of the plaintiff that first defendant is the father of 2nd defendant and defendant Nos.3 and 4 are coolies working under defendant Nos.1 and 2. The plaintiff submits that he owns a land to an extent of Ac.2-62 cents in R.S.No.74 and land to an extent of Ac.2-50 cents in R.S.No.76 of Chodimella Village, whereas defendants own land to an extent of Ac.3-50 cents in R.S.No.77 and also land to an extent of Ac.4-00 in R.S.No.82 of the same village. It is the contention of the plaintiff that originally all these lands were under the Ayacut of an irrigation tank called "Vangoor tank? which was being fed by Tammileru. As the water supply from Tammileru has become most uncertain, the plaintiff and defendants have excavated bore wells and installed electric motors in their respective lands. The plaintiff submits that he got bore well excavated in R.S.No.74 at point "w? and obtained electric service connection No.143 and defendants also got excavated bore wells at point "w1? in their land. The main contention of the plaintiff is that there is an irrigation channel starting from Vangoor tank it runs across his lands and defendants lands as shown in the plaint plan which terminates at point "T?, which is meant for cultivating lands of himself and defendants. in their land. The main contention of the plaintiff is that there is an irrigation channel starting from Vangoor tank it runs across his lands and defendants lands as shown in the plaint plan which terminates at point "T?, which is meant for cultivating lands of himself and defendants. The plaintiff also submits that for the last one decade neither of the parties have been taking water from the tank as there is no supply, due to that irrigation body is being used for taking water from the bore wells of both parties and then he is cultivating his lands with the water from the said well but inserting two cement pipes P, P1 circumference of each pipe is 12” at points "ABCD?, below the surface to conveniently cross the irrigation channel, both water and the carts with measurements of 6 x 6 feet. The plaintiff also claimed that there is a seasonal cart track shown in the lands of plaintiff as shown in the plan. The plaintiff claimed cart track and lying of pipes through escalate his land in the Government channel from Vangoor tank. He alleged that he has been using the said channel and cart track acquired the right of easement of necessity. He alleged that due to recent elections some disputes arose between their family and family of defendants due to that defendants bore grudge against him. On 14-05-1990 at 5-00 PM the defendants illegally removed the cement pipes P, P1 shown in the plaint plan, which he questioned but they threatened him with dire consequences. Hence, he filed suit for mandatory injunction and permanent injunction. 5. The first defendant filed written statement which is adopted by defendant Nos.2 to 4. It is the contention of the first defendant that, channel in question belonged to Government wherein every farmer has been taking water from the channel openly as of right and without any interruption or any objection by anybody, due to that plaintiff or any other farmer has no right to obstruct the free flow of passage of water from that channel till its terminal point and the plaintiff has no right to put up any cement pipes across the bed of the channel, either at the place of "ABCD? shown in the plaint plan or at any other place. shown in the plaint plan or at any other place. Such obstruction is highly objectionable, but the plaintiff did not apply to the Government for getting permission for insertion of the said cement pipes. He categorically stated that plaintiff is not having any easement of necessity as he has a road on south of the land of Vepuri Seshagiri Rao and it runs from east to west and then takes a turn towards north leading to kavvagunta and that kavvagunta road is a passage for taking his carts and cattle to his field where his bore-well is situated, as such the plaintiff is not entitled for mandatory injunction or permanent injunction. He also stated that there is a village community and that community will be looking after the distribution of the water in Vangoor tank and they will be regulating the supply of water to the farmers in times of scarcity and the said community members will not allow any farmer for insertion of cement pipes in water channels as the said pipes will prevent flow of water to the farmers fields. He submits that community members namely Sri Vepuri Bala Krishna Rao and Sri Vepuri Ramayya effected repairs to the suit channel from “Ganganamma sluice” of Vangoor tank for a length of about 4 furlongs between 12.5.1990 till 17.5.1990 by spending about Rs.400/- at the time they did not find any cement pipes while carrying on the repairs. The plaintiff under the guise of present suit, is now trying to fix up cement pipes across the channel with the sole purpose of diverting the channel water to his lands north to that channel and that the other allegations levelled against the defendants by the plaintiff with regard to political rivalry are only created to file a suit. He prays to dismiss the suit. 6. Basing on the above pleadings, trial Court settled the following issues:- 01. Whether the plaintiff is entitled for mandatory injunction as prayed for? 02. Whether the plaintiff is entitled for permanent injunction as prayed for? 03. To what relief? 7. The parties went to the trial. On behalf of plaintiff, Pws.1 and 2 were examined. Exs.A1 and A2 were marked. On behalf of defendants, Dws.1 to 3 were examined and Ex.B1 was marked. 8. 02. Whether the plaintiff is entitled for permanent injunction as prayed for? 03. To what relief? 7. The parties went to the trial. On behalf of plaintiff, Pws.1 and 2 were examined. Exs.A1 and A2 were marked. On behalf of defendants, Dws.1 to 3 were examined and Ex.B1 was marked. 8. On the material and evidence, the trial Court held that plaintiff is not entitled to seek equitable relief of permanent injunction and dismissed the suit with a direction to the plaintiff to remove two cement pipes "P, P1? installed during the pendency of the suit after obtaining interim injunction orders. 9. Aggrieved by the Judgment and Decree passed by the trial Court, the plaintiff presented A.S.No.156 of 1997 on the file of I- Additional District Judge?s Court, West Godavari at Eluru, who set aside the Judgment and Decree passed by the trial Court and decreed the suit. 10. In these circumstances, the present second appeal is presented. 11. I have heard learned counsel Mr.S.Srikanth, representing on behalf of Mr.Y.V.Ravi Prasad, learned senior counsel for the appellant as well as learned counsel Mr.Prithviraj, representing on behalf of Mr.T.Sai Surya, learned counsel for 1st respondent/plaintiff. 12. The learned counsel for the appellant would submit that, first respondent filed a suit for mandatory injunction and permanent injunction claiming easementary right which was dismissed and then first respondent preferred an appeal which was erroneously allowed by the first appellate Court. He would further submit that first respondent/plaintiff is claiming easementary right over Government irrigation channel for installation of pipes without any permission from Government departments and not added Government department as one of the party to the suit which failed to consider by the learned Appellate Judge. It is the contention of the learned counsel for the appellant that plaintiff admittedly has no right in the disputed site due to that he is not entitled to seek equitable relief of injunction. He prays to allow the appeal. 13. The learned counsel for the first respondent/plaintiff would submit that there is no water in the irrigation channel due to that both plaintiff and also defendants have dug a bore-well in their lands and irrigating their agricultural lands through bore-well by laying a pipe line which is not a obstruction to any farmers on either side of the dried up channel. He would further submit that plaintiff is claiming easementary right of necessity over irrigation channel and also in the cart track. It is the contention of the learned counsel for first respondent/plaintiff that no permission is obtained for pipe line that itself is not a ground to reject the contention of the plaintiff when he is seeking equitable relief against third parties. He prays to dismiss the appeal. 14. This second appeal was admitted on the following substantial questions of law raised at ground 9 of grounds of appeal, which reads as under: “(a) Whether the plaintiff can maintain a suit for injunction without establishing his legal right over the irrigation channel to lay pipes therein and without having any exclusive right to deal with the irrigation channel except to draw water there from? (b) Whether a suit for injunction is maintainable without adding the owner of the property ie., Government which is a necessary party for proper adjudication of the matter? (c) Whether a person is entitled for injunction for his own benefit by causing loss to several others by putting obstruction in the common property?” 15. As per Section 100 CPC, this Court can interfere with the judgment of appellate Court, if it is satisfied that case involves a substantial question of law. A finding of fact recorded by appellate Court is binding on this Court unless there is any error of law in such finding. The Hon’ble Apex Court in Narayan Sitaramji Badwaik (dead) through LRs. Vs. Bisaram and others, in Civil Appeal No.6124 of 2011 judgment dated 17.02.2021 explained circumstances under which High Court determine issue of fact. 16. The Hon’ble Apex Court in Chandrabhan (deceased) through LRs. and others. Appellants Vs. Saraswati and others. Respondents in SLP (C) No.8736 of 2016 judgment dated 22.09.2022 after elaborately discussing the precedent law enunciated the following principles relating to Section 100 of CPC at para 33 of the judgment, which reads as under: "33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law in constructing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which effects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the Courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence," it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 17. For better appreciation of the facts of the case and evidence adduced by both sides and finding recorded by Courts below it would be beneficial to extract plan affixed along with plaint which reads hereunder: 18. For better appreciation of the facts of the case and evidence adduced by both sides and finding recorded by Courts below it would be beneficial to extract plan affixed along with plaint which reads hereunder: 18. A perusal of contents in the plaint and also plaint plan which makes it clear that plaintiff is having lands on northern side and also on southern side for the said cart track. The said lands are situated on eastern side and western side of "Vangoor? channel. It is also not in dispute that defendants are also having lands on southern side of alleged cart track and western side of Vangoor channel. The plaintiff himself as contended that disputed channel and cart track are in existence since long time and the said water in the channel is being used by ayacuttadars/farmers for cultivating their lands but due to no flow of water in channel since ten years he laid a pipe line in the channel which admittedly belongs to Government which alleged to have been removed by the defendants. It is not in dispute that either in the alleged channel or in the cart track plaintiff is not having exclusive right but he is claiming easementary right over the alleged cart track and channel to reach his lands. He claimed easement of necessity. As per Section 4 of the Indian Easements Act, 1882, which reads as under: "4.Easement defined. An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own. Dominant and servient heritages and owners: The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; and land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Dominant and servient heritages and owners: The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; and land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation : In the first and second clauses of this section the, expression "land" includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, or any part of the soil of the servant heritage, or anything growing or subsisting thereon." 19. Section 13 of the Indian Easement Act, 1882 defines easements of necessity and quasi easements which reads as under: “(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or lessee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; (c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or (d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Where a partition is made of the joint property of several persons,-- (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or (f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless the different intention is expressed or necessarily implied, be entitled to such easement. The easements mentioned in this section, clauses (a), (c) and (e) are called easements of necessity. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee." 20. Section 15 of Indian Easements Act, acquisition by prescription, so the plaintiff laid pipeline admittedly in the Government channel without permission of any Government authorities and without permission of Ayacuttadars community of the village for his own benefit not for the benefit of other ayacuttadars and it is not the contention of the plaintiff that other ayacuttadars who are cultivating the lands through water from the village channel have raised no objection or permitted him to lay a pipe line. When plaintiff is claiming right of easement, he must seek declaration of such a right and suit for injunction simplicitor is not maintainable. 21. The Karnataka High Court in G.R.Krishna Murthy vs. S.Razaack, Bangalore, AIR 1982 Karnataka 314 held that: “An easement can be acquired by three known Modes: (1) by express or implied grant, (2) by user as of right for the statutory Period of 20 years under the Easements Act, i.e., by prescription and (3) by immemorial user based upon the fiction of a lost grant. For the second mode of acquisition of easement under the Easements Act, it is necessary that the required period of 20 years or over must end within 2 years next before the institution of suit wherein the claim to the easement is contested. This necessarily implies that the right of easement by prescription under the Act cannot become absolute unless the right has been contested in a suit.” 22. In Muthu Goundar vs. Anantha Goundar, AIR 1946 Mad.1001 31 I.C 528 a Division Bench of the Madras High Court had occasion to consider this aspect. This necessarily implies that the right of easement by prescription under the Act cannot become absolute unless the right has been contested in a suit.” 22. In Muthu Goundar vs. Anantha Goundar, AIR 1946 Mad.1001 31 I.C 528 a Division Bench of the Madras High Court had occasion to consider this aspect. His Lordship Justice Sadasiva. Aiyar, speaking on this aspect has observed : "The question when what might be called an easement by statutory prescription is claimed by the plaintiff, is whether under Section 15 of the Easements Act, the prescriptive right by enjoyment for 20 years has been acquired by the plaintiff. As pointed out by Chamier, J. in Sultan Ahmed v. Waliullah (1912-17 Ind Cas 22 : 10 All LJ 227). "The fifth paragraph of Section 15 of the Easements Act seems to render it impossible to acquire a statutory prescriptive title to an easement unless and until the claim thereto has been contested in a suit." See also Regroup Kier v. Abdul Hussein (1880) 7 Ind App 240 (249) (PC) and the judgment of Lord Macnaghten in Hyman v an Den Bergh (1908-1 Ch 167) construing similar provisions of the English Prescription Act. As Peacock says in his book on Easements at page 435, "the right is created upon the bringing of the first action in which, by reason of the claim having been brought into question, it becomes necessary for the person claiming such right to possess it for the pur. pose of his action or defence." 23. In Siti Kantapal v. Radha Gobindaen , A.I.R.1929 Calcutta Page -542 a Division Bench of the Calcutta High Court has further made the proposition lucid. In the course of the judgment this is what the High Court has ruled : "It has been authoritatively held that a tie to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of the suit." 11. It is, therefore, necessary that in a suit for injunction based on a prescriptive easement right, the plaintiff should seek for a declaration from the Court that he has so acquired the prescriptive right of easement. In the present suit, however, the plaintiff has not sought for declaration that he has acquired prescriptive right of easement with regard to the inflow of air and light through the windows and ventilator. Without more, therefore, the suit is liable to be dismissed. The Courts below have obviously missed this legal aspect. 24. So the plaintiff is claiming injunction based on prescriptive easementary right over the passage to reach his land should seek for declaration from the Court that he has so acquired in the prescriptive right of easement. When he is claiming easement of necessity, he must establish that, he has got right of easement of necessity by seeking declarative relief which he failed to seek in the suit and chosen to file suit for injunction simplicitor which is not maintainable which failed to consider by the learned 1st appellate Judge. When the plaintiff is claiming equitable relief of injunction for which he has to establish the breach of an obligation or an infringement of the legal right. As a person is seeking relief of injunction, should show the violation of his right by the act complained of and if that act is carried into effect it must result in infringement of their legal rights. Though, in a suit for injunction, primary question to be considered is one of the possession on the date of filing of the suit, the plaintiff has to establish that he has got legal right to get equitable relief of injunction against the defendants. The plaintiff shall also establish that the defendants are not justified in interfering with their legal right and possession over the suit schedule property. 25. In the present case, plaintiff is admittedly seeking equitable relief of mandatory injunction without seeking declaration of his alleged easementary right over the disputed property and admittedly installed pipe line in the Government channel which flows from village tank and the water in the channel being used by all farmers ie., ayacuttadars to irrigate their lands. 25. In the present case, plaintiff is admittedly seeking equitable relief of mandatory injunction without seeking declaration of his alleged easementary right over the disputed property and admittedly installed pipe line in the Government channel which flows from village tank and the water in the channel being used by all farmers ie., ayacuttadars to irrigate their lands. It is also not the contention of the plaintiff that, he obtained permission from the Government to install pipe lines and admittedly plaintiff has not chosen to add Government as one of the party in the suit when he is seeking easementry right over Government channel and also the passage wherein he is admittedly not having right. The learned trial Judge, has rightly appreciated the evidence of Pw.1, who admitted that, the land-lords on either side of the channel are having right to make use of the channel for irrigation purpose who also admitted that while laying cement pipes in question he has not obtained consent from other neighbouring land owners and further admitted that defendant Nos.1 and 2 are having their lands towards the east of the land and they are also drawing water from the present channel. The learned trial Judge, also discussed the evidence of plaintiff as Pw.2, who categorically admitted that during the crop season the path-way will not be used because there will be flow of water in the channel and there will be paddy crop in the lands on either side of the channel. Pw.2 also admitted that landlords who are having their lands on either side of the disputed channel are having right over the channel to draw water to their lands for cultivation. When land owners on either side of the disputed channel are having right to use water drawn from the channel, plaintiff cannot put pipe line obstructing flow of water under the guise that there is no flow of water and his suit for injunction simplicitor without seeking declaration of alleged easementary right is also not maintainable which failed to consider by the First Appellate Judge. The plaintiff is also not entitled for equitable relief of injunction to install pipe line in the village channel for his own benefit which is detrimental to other ayacuttadars who are also admittedly using the water from the channel to irrigate their lands. The plaintiff is also not entitled for equitable relief of injunction to install pipe line in the village channel for his own benefit which is detrimental to other ayacuttadars who are also admittedly using the water from the channel to irrigate their lands. Therefore, this Court is of an opinion that the first appellate Court in erroneous application of law and facts set aside the decree and judgment of the learned trial Judge and decreed the suit. The suit filed by the plaintiff seeking injunction simplicitor claiming easementary right is not maintainable when his claim easementary right over channel and also the passage which is liable to dismissed which rightly held by the learned trial Judge. The substantial question of law is answered in favour of the appellant/1st defendant. 26. In the result , the Second Appeal is allowed and Judgment and Decree in A.S.No.156 of 1997 on the file of I Additional District Court, West Godavari District at Eluru are hereby set- aside. The Judgment and Decree passed in O.S.No.246 of 1990 on the file of Principal District Munsif Court, West Godavari at Eluru is hereby restored, which dismissed the suit filed by the 1st respondent. There shall no order as to costs. As a sequel, pending miscellaneous applications, if any, shall stand closed. The interim orders granted earlier, if any, shall stand vacated.