[1] This appeal under Section 100 of the Civil Procedure Code is at the instance of the original plaintiff, who had filed Regular Civil Suit No.395 of 2005 for declaration and permanent injunction.
[2] The case of the plaintiff is that the plaintiff is the owner of the land bearing survey No.198/5 and the defendant is the owner of the land bearing survey No.198/6. On 12.12.2005, the defendant brought labourers for the purpose of laying underground pipeline by entering upon the land of the plaintiff. When the plaintiff resisted such act on the part of the defendant, the defendant reacted rudely. Since, the defendant attempted to lay underground pipeline and for that purpose, further made attempt to dig the land, the cause had arisen to file the suit for declaration that the plaintiff is owner of land bearing survey No.198/5 admeasuring 0 – 96 – 13 Hectors of land and that defendant had no right or authority to lay underground pipeline on the southern side of the land of the plaintiff. The plaintiff also prayed for permanent injunction of the like nature.
[3] The suit of the plaintiff was resisted by the defendant inter alia stating that there was already in existence open water channel (Dhorio) on the northern side of the land of the defendant and the defendant wanted to convert such open water channel into underground pipeline. For that purpose, the defendant wanted to dig the land and then to lay underground pipeline. It is further stated by the defendant that the plaintiff had already obstructed the defendant from laying pipeline and at the intervention of the village people, one agreement dated 28.11.2005, on stamp paper of Rs.50/-, was entered into between the plaintiff and the defendant. As per the said agreement, the plaintiff has agreed that the defendant can lay underground pipeline at the place where there was open water channel of the defendant on the common boundary of the two lands and both sides shall then construct the walls on their side after leaving common boundary. Thus, the plaintiff had filed false suit by suppressing such agreement.
[4] On the basis of the pleadings, the learned trial Judge framed issues at Ex.25. Three main issues are that whether the plaintiff proves that he is the owner of the land bearing survey No.198/5; that whether the plaintiff proves that the defendant has encroached upon the southern side boundary by laying pipeline and that whether the plaintiff proves that the defendant has by laying pipeline encroached upon the common boundary between the lands bearing survey Nos.198/5 and 198/6.
[5] Learned trial Judge, on appreciation of the evidence available on record, came to the conclusion that the plaintiff is the owner of the land bearing survey No.198/5 and there exists a common boundary (popularly known as “Shedha”) of about three feet in width between the two lands. As per the agreement dated 28.11.2005 at Ex.70 produced by the defendant, the defendant was to lay underground pipeline at the place of open water channel and, thereafter, was to construct the wall after leaving the common boundary. The learned trial Judge has further observed that the plaintiff is not required to prove such agreement, since the same is produced by the defendant and as per the said agreement, defendant was to construct the wall, after leaving the common boundary, on his side. But the defendant has not constructed any such wall as per the agreement. The learned trial Judge has further come to the conclusion that the plaintiff has acquired the right of easement in respect of such common boundary and, therefore, it is not open to the defendant to make any work of digging on such common boundary in order to lay underground pipeline and the defendant has, thus, no right to lay underground pipeline on such common boundary. The learned trial Judge, thus, allowed the suit of the plaintiff and declared the plaintiff as owner of the land bearing survey No.198/5 and also granted permanent injunction restraining the defendant from making any construction on common boundary on the southern side of the plaintiff's land and from obstructing the plaintiff from making common use of the disputed boundary.
[6] The defendant challenged the above judgment and decree by filing Regular Civil Appeal No.66 of 2012. Though while exercising the appellate jurisdiction, the learned Appellate Judge has not properly discussed the points raised in the appeal on admitted evidence, however, since there is no dispute about the ownership of the lands of the respective parties and about the agreement at Ex.70 arrived at between the parties, this Court does not think it proper to remand the matter for fresh consideration by the learned Appellate Court.
[7] The main issue involved in the appeal and addressed by the learned advocates for both the parties is whether as per the agreement at Ex.70, the defendant was entitled to lay underground pipeline beneath the existing open water channel on the common boundary between the two lands, and whether learned Appellate Judge was justified in setting aside the first part of the decree of learned trial Judge whereby the appellant was held to be the owner of survey No.198/5.
[7.1] Both the learned advocates have, therefore, requested to decide the appeal finally. This appeal is admitted on the following questions of law and taken up the same for final hearing as requested by learned advocates for the parties.
[a] Whether as per the agreement at Ex.70, the defendant is entitled to lay underground pipeline beneath the existing open water channel on the common boundary between two lands stated in the agreement?
[b] Whether the learned Appellate Judge was justified in setting aside the first part of the decree of the learned trial Judge whereby the appellant was held to be owner of survey No.198/5 in absence of any dispute raised by the appellant in the appeal?
[8] It is required to be noted that the plaintiff has not produced the agreement at Ex.70. The plaintiff has not disclosed the fact of such agreement in his plaint. It was when the plaintiff was cross-examined by the defendant, the plaintiff had to admit that there was an agreement between the parties for resolving the dispute as regards the use of common boundary for the purpose of laying pipeline beneath the existing open water channel of the defendant. The copy of the agreement is made available to the Court by learned advocates. I have gone through the agreement. Two of the main terms of agreement are required to be referred. One is the plaintiff has consciously agreed permitting the defendant to lay pipeline at the place where the defendant's existing open water channel is passing on the common boundary. Second one is, of construction of wall by both the parties after leaving common boundary (Shedha) of about three feet in width. The first term is not dependent upon the defendant, first constructing wall. In fact, as stated by the learned advocates for the parties, neither of the parties has constructed wall, as per the agreement. It is required to be noted that for getting plaintiff agreed to lay pipeline at the place of existing open water channel, the defendant had to sacrify his existing fruit bearing trees. It is recorded in the agreement that the defendant shall remove existing fruit bearing trees, like mango, coconut, nilgiri, charu etc. It is not the case of the plaintiff that such trees were grown by the defendant on common boundary. Still in order to get flow of water through underground pipeline instead of having it through the open water channel, the defendant had to agree to remove such tree from his own land. The above agreement goes to suggest that the defendant just to have pipeline under open water channel on the common boundary has volunteered to the suggestion of the plaintiff and against such gesture shown by the defendant, the plaintiff did not think it proper even to disclose such agreement arrived at between the parties. As per the said agreement, the defendant has become entitled to lay underground pipeline at the very place where he has already open water channel on his side of the land on common boundary. Therefore, the learned trial Judge was not justified in allowing the suit of the plaintiff simply on the ground that the defendant did not construct the wall as per the agreement. The learned trial Judge has missed important aspect of the matter that the plaintiff has also not constructed the wall, as per the agreement at Ex.70. Therefore, such non-construction of the wall by the defendant would not be a ground to defeat the right of the defendant to lay underground pipeline especially when the plaintiff himself has agreed for such underground pipeline at the existing place of open water channel. In my view, the learned Appellate Judge has rightly considered the oral evidence of the parties at Ex.41, 51, 52 and also the agreement at Ex.70 and on appreciation of such evidence, the learned Appellate Judge has not committed any error in coming to the conclusion that the plaintiff has not come to the Court with clean hands and the learned trial Judge ought not to have decreed suit of such plaintiff simply on the ground that the defendant has not put up the construction of the wall as per the agreement. On interpretation of agreement at Ex.70 and on appreciation of the oral evidence, the learned Appellate Judge has recorded correct findings of fact to the effect that the defendant had right of laying underground pipeline at the place of existing open water channel and by doing so, the defendant has not encroached upon the land of the plaintiff.
[9] Then remains the second question. Learned advocate for the appellant has made serious grievance that there was no dispute about the ownership of the land of the appellant bearing survey No.198/5, still, the learned Appellate Judge has without any fruitful discussion or consideration of evidence, set at naught such findings of fact recorded by the learned trial Judge and to that extent, as per the submission of learned advocate for the appellant, this appeal is required to be allowed.
[10] Such grievance of learned advocate for the appellant could be taken care of in two ways – one is that there is no dispute about existence of agreement between the parties wherein it is recorded that the plaintiff is the owner of the land bearing survey No.198/5 whereas the defendant and his brothers are owners of the land bearing survey No.198/6. The second one is that the learned advocate for the respondent has stated at the bar that the defendant relies on the agreement wherein the ownership of the appellant's land bearing survey No.198/5 is accepted. The defendant does not challenge such title or ownership of the land of the appellant bearing survey No.198/5.
[11] In view of the above and when the learned trial Judge on appreciation of evidence found that the plaintiff is the owner of the land bearing survey No.198/5 and when the same is supported by the evidence on record including the agreement, I am of the view that the learned Appellate Judge while interfering with the judgment and decree passed by the learned trial judge ought not to have quashed and set aside the judgment and decree in so far as the learned trial Judge has declared the appellant to be the owner of the land bearing survey No.198/5. Therefore, this appeal is required to be partly allowed on the substantial questions of law whether in absence of any grievance raised by the respondent in his appeal about the ownership of the appellant of land bearing survey No.198/5, the learned Appellate Judge was justified in quashing and setting aside the judgment and decree passed by the learned trial Judge in so far as the learned trial Judge has declared the plaintiff to be the owner of the land bearing survey No.198/5.
[12] As discussed above and considering the evidence on record including the agreement, as also the stand taken by the learned advocate for the respondent, I am of the view that the declaration made by the learned trial Judge that the appellant is the owner of the land bearing survey No.198/5 is required to be restored and to this extent, the appeal is required to be allowed.
[13] In the result, the appeal is partly allowed. The judgment and decree passed by the learned Appellate Judge in so far as learned Appellate Judge has quashed and set aside the judgment and decree by the trial Court declaring the ownership of the appellant of the land bearing survey No.198/5 is concerned, the same is hereby reversed and the judgment and decree passed by the learned trial Judge in so far as the learned trial Judge has declared the appellant to be the owner of the land bearing survey No.198/5 is restored. Rest of the judgment and decree passed by the learned Appellate Judge is confirmed. The respondent is held entitled to lay underground pipeline in place of existing open water channel on common boundary (Shedha) as per the agreement at Ex.70 entered into between the parties. The decree shall stand modify accordingly.
[ C. L. SONI, J. ] vijay