IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF AUGUST 2017 BEFORE THE HON’BLE Mr. JUSTICE S.N.SATYANARAYANA R.S.A.No.2578/2007 (DEC & INJ) BETWEEN M A BRAHMAIAH S/O ANANTHARAJAIAH AGED 39 YEARS AGRICULTURIST MAVINAHOLADA HORANADU VILLAGE KALASA HOBLI MUDIGERE TALUK HORANADU POST ... APPELLANT (By Sri. B JANARDHANA RAO, ADVOCATE) AND M C ADIRAJAIAH S/O CHANDRAPPAIAH AGED 73 YEARS, AGRICULTURIST REP BY GPA HOLDER RATNARAJAIAH AGED 33 YEARS, MEGALAMANE, MAVINAHOLA, KALASA HOBLI, MUDIGERE TALUK HORANADU POST (By Sri. C ANIL BABU & ASSOCIATES) ... RESPONDENT THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 2.7.07 PASSED IN R.A.NO 24/04 ON THE FILE OF THE ADDL. DISTRICT & SESSIONS JUDGE, CHIKAMAGALUR, DISMISSING THE APPEAL AND UPHOLDING THE JUDGEMENT AND DECREE DTD 6.1.97 PASSED IN OS 306/93 ON THE FILE OF THE MUNSIFF, MUDIGERE.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The defendant in O.S.No.306/1993 on the file of Munsiff, Mudigere, has come up in this second appeal challenging the concurrent finding of both the Courts below in decreeing the suit of the plaintiff for the relief of declaration and permanent injunction restraining the defendant and his men, agents or any other person claiming under him from obstructing the free flow of water in the channel situated between Item Nos.2 and 3 of suit schedule property.
2. Admittedly, the suit schedule property and adjacent property were properties of a larger family of Jain community. It is seen that there was partition in the family, and the property which was granted to the share of plaintiff’s family members has come down to him in the form of suit schedule Item Nos.1 and 2 being allotted to him. It is stated that in between suit schedule Item Nos.2 and 3 is the property which is purchased by plaintiff’s cousin by name Nemirajaiah to whom suit schedule Item No.3 bearing Survey No.83 measuring 14 guntas was belonging to. It is also stated that the said property had fallen to the share of Nemirajaiah in a partition between himself and his brother. The suit schedule Item Nos.1, 2 and 3 which are belonging to plaintiff are divided by the property belonging to defendant Brahmaiah in Survey No.85/2 which is situated between suit schedule Item Nos.2 and 3.
3. The grievance of plaintiff is the entire extent of land held by him in Item Nos.1 and 2 as well as in Item No.3 were fed by the water through channel in existence which carries the water from a spring situated in Government land bearing Survey No.81 of the same village. The plaint averment is to the effect that the spring in land bearing Survey No.81 would first pass through Item No.3 of suit schedule property, from there, it proceeds towards Item No.2 passing through the property of defendant in Survey No.85/2. According to him, all these years, the flow of water in the aforesaid manner was not disturbed by anybody and the same was distributed in feeding the coconut and arecanut plantation and also the paddy fields which are in existence in the aforesaid survey numbers.
4. It is the grievance of plaintiff that the defendant has deviated the course of water which is passing through his land bearing Survey No.85/2 on its way to suit schedule Item No.2 and in between, he has deviated the water path in such a way the entire course of water would be utilised in the narrow piece of land in survey No.85/2 belonging to him and utilized the water from the channel for cultivation of his lands and thereby, depriving right of plaintiff for free flow of water in the channel which was in existence till filing of the suit. It is also stated that the defendant, after interfering the water course passing through Sy.No.85/2 belonging to him, has planted arecanut and cardamom trees on either side of the channel which he has farmed from the original channel and tried to obstruct the free flow of water to Item No.2 of suit schedule. After committing such an act, it is stated that the defendant filed a caveat in anticipation that the plaintiff would file a suit for declaration, possession and permanent injunction against him. In the said suit, the defendant has taken a specific defence that there was no water course which was proceeding from Item No.3 of plaint schedule to Item No.2 passing through his land and it is also contended that the water path in existence in his land was there prior to filing of suit. In this background, the issues were framed and evidence was recorded.
5. The Court below also appointed the surveyor to conduct survey of the path of the water which is conducted by the Court Commissioner who has filed the sketch of the path of water as observed by him and also the report in support thereof which are taken on record as Ex.P.9. The said document would clearly show the source and origin of the spring, its path as well as the place where the movement of water is said to have been disturbed by defendant to deprive the flow of water into the portion of land held by plaintiff in Survey No.85/2. Based on the aforesaid documents which are available on record, the Court below proceeded to answer the issues framed with reference to existence of water channel in Survey Nos.81 to 83 and 85/2 as detailed in ‘B’ schedule and also existence of water channel between Item Nos.2 and 3 of plaint ‘A’ schedule passing through the property of the defendant in the very same survey number are held to be in affirmative. So far as the allegation of the defendant trying to dig new channel is concerned, the same is answered in the negative by considering Issue No.4 and which was alleged in the plaint which was taken up for consideration in I.A.V being answered in the affirmative, the Court below has declared the right of plaintiff to seek flow of water to his Item Nos.1, 2 and 3 in the suit schedule through the property of defendant which is situated between Item Nos.2 and 3 of the suit schedule.
6. The defendant being aggrieved of the same, has preferred an appeal in R.A.No.24/2004 against the Judgment dated 06.01.1997 in O.S.No.306/1993 which was on the file of District and Sessions Court, Chickmagalur, wherein the lower Appellate Court, on re-appreciation of the pleadings, evidence and also on going through the grounds of appeal which was raised, proceeded to frame points for consideration in the said appeal and answered the same in the negative holding that the trial Court has rightly appreciated the evidence available on record with reference to the origin of spring and its path to Survey No.83 belonging to plaintiff which is suit schedule Item No.3 and thereafter, the same passing through Item Nos.2 and 1 belonging to plaintiff which path is through the property belonging to defendant in the very same Survey No.85/2. While giving such opinion the finding of trial Court is appreciated by the lower Appellate Court. As against the said concurrent finding, this second appeal is filed by the defendant in the original suit. When this matter was listed on 16.04.2012, the co-ordinate Bench of this Court has admitted this appeal by framing the following substantial question of law:
“Whether the impugned judgment of the First Appellate Court is opposed to Mandate of Order 41 Rule 31 of CPC?”
7. Heard the learned counsel for appellant and respondent, perused the judgment of both Courts below along with pleadings, oral and documentary evidence available on record. When the Judgment rendered by lower Appellate Court is looked into, it is clearly seen that the lower Appellate Court has confirmed the Judgment of the trial Court in the said proceedings. While doing so, it is clearly seen that the facts are narrated at first instance. Thereafter, the issues which are framed are reiterated and the finding recorded by the trial Court is also appreciated. Thereafter, the Court below, by framing points for consideration, has discussed at length the pleadings, evidence as well as the Judgment rendered by the Court below while considering the points framed in lower Appellate Court and has given its finding in negative in holding that no grounds are made out to interfere with the Judgment rendered by the Court below and thereafter, concurring with the view taken by the Trial Court, has dismissed the appeal filed by defendant therein.
8. In that view of the matter, this Court feels question of framing of the aforesaid question as if there is an error committed by the first Appellate Court in answering this issue without looking into Order 41 Rule 31 of CPC does not arise in as much as no finding is given either in reversing the Judgment or granting the relief which was denied by the Court below. Therefore, this Court finds that on going through the entire Judgment of both the Courts below, there is no such error committed by both the Courts below in recognizing the right of plaintiff for free flow of water originating from the spring in Survey No.81, which passes through Item No.3 of suit schedule property and thereafter, proceeding towards Item Nos.2 and 1 of the suit schedule by passing through land in Survey No.85/2 belonging to defendant.
9. In that view of the matter, this Court finds that there is no merit in this appeal. Accordingly, this second appeal is dismissed in answering the substantial question of law framed against the appellant, who is defendant in the Court below.
Sd/- JUDGE bnv*