Karnataka High Court
Smt Laxmibai W/O Desing Naik vs Sri Hunnu S/O Madhu Lamani on 12 October, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.1072/2008(DEC/P.INJ)
BETWEEN:
SMT LAXMIBAI W/O DESING NAIK
51 YEARS, AGRICULTURIST
R/O HADALSANG, TALUK: INDI
DIST: BIJAPUR-586 117
REP. BY HER GPA HOLDER SRI. DESING NAIK
S/O CHAPALA NAIK, 65 YEARS R/O LAXMINIVAS,
SUBHAS COLONY, 1ST CROSS,
NEAR HAKEEM CHOWK,
BIJAPUR-586 101. ...APPELLANT
(BY SRI R J BHUSARE, ADVOCATE)
AND:
1 . SRI HUNNU S/O MADHU LAMANI
51 YEARS, AGRICULTURIST
R/O HADALSANG, TALUK: INDI
DIST: BIJAPUR-586 117
2 . SRI BASU S/O MADHU LAMANI
38 YEARS, AGRICULTURIST
R/O HADALSANG, TALUK: INDI
DIST: BIJAPUR-586 117
3 . SRI MOTICHAND ALIAS HUNNU,
S/O MADHU LAMANI
2
45 YEARS, SERVICE
R/O HADALSANG, TALUK: INDI
DIST: BIJAPUR-586 117.
...RESPONDENTS
(BY SRI S.B.HEBBALI, ADVOCATE FOR
CAVEATOR/RESPONDENS 1 AND 2; R-3 SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC TO
STAY THE OPERATION AND EXECUTION OF THE
JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE
(SENIOR DIVISION) INDI DATED 14.02.2008 IN
RA47/2007 REVERSING THE JUDGMENT AND DECREE IN
OS NO.62/1994 PASSED BY THE CIVIL JUDGE (JUNIOR
DIVISION) INDI DATED 20.03.2006 AND CONSEQUENTLY
DIRECT THE RESPONDENTS NOT TO INTERFERE IN MY
POSSESSION OF THE SUIT BORE-WELL PENDING
DISPOSAL OF THE ABOVE APPEAL.
THIS RSA IS COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the plaintiff questioning the divergent findings of the Courts below wherein the plaintiff's suit for declaration and injunction though decreed by the trial Court is reversed by the appellate Court and consequently, the suit is dismissed.
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2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. The plaintiff has filed the suit seeking a declaration that defendants have no manner of right, title and interest over the suit borewell. Plaintiff has claimed that she is the owner of the agricultural land bearing Survey No.98 II. The plaintiff has further pleaded that the first defendant is the owner of the adjoining land bearing block No.98/IIIC measuring 9 acres 10 guntas. The plaintiff claims that the land owned by her is situated on the northern side of the land owned by defendants. It is the specific case of the plaintiff that she has dug a borewell in the suit land for the purpose of irrigating the agricultural land owned by her. The plaintiff has alleged that defendants with an ill motive are trying to obstruct the use of borewell. Therefore the present suit came to be filed.
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4. The first defendant on receipt of summons tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. At Para (7), the details of the land owned by defendants 1 to 3 are furnished. It is specifically pleaded by defendants that suit borewell is situated within the land of defendant No.2 which is wrongly depicted by letters "ABCD" in plaintiff's sketch. It is the specific case of the defendants that the borewell, as claimed by plaintiff, is in fact situated in the portion of the land owned by defendant No.2. Therefore, sought for dismissal of the suit.
5. The plaintiff to substantiate her claim examined herself as P.W.1 and examined four independent witnesses as PWs.2 to 5 and produced documentary evidence vide Exs.P1 to P9, while defendants examined defendant No.1 as D.W.1 and one independent witness as D.W.2 and adduced 5 documentary evidence vide Exs.D1 to 11. The Commissioner report is marked as Ex.C1 and at Ex.C2.
6. The trial Court having examined oral and documentary evidence answered Issue Nos.1 to 4 in the affirmative. The trial Court while answering Issue No.1 held that plaintiff has succeeded in proving that she is in actual possession and enjoyment of the suit land. The trial Court also held that plaintiff has succeeded in proving that she has recently dug a borewell in the suit land and that defendants are interfering with plaintiff's right to use the water through the suit borewell. While answering Issue No.7 in the negative, the trial Court has held that defendants have failed to prove that borewell as claimed by plaintiff is in fact dug in the portion owned by defendant No.2.
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7. Feeling aggrieved by the judgment and decree of the trial Court, the defendants preferred an appeal before the appellate Court. The appellate Court has independently assessed the oral and documentary evidence. The appellate Court referring to the Commissioner's report found that the suit borewell is infact situated in the land of defendants bearing block No.98/III. The appellate Court was of the view that plaintiff is not asserting title over block No.98/III. The appellate Court partially rejected the Commissioner's report touching the possessory rights of respective parties but however, accepted the report so far as location of suit borewell is concerned. Referring to the Commissioner's report, the appellate Court found that suit borewell is in fact found in the portion of Survey No.98/III. The appellate Court referring to various documents as well as the Commissioner's report held that plaintiff is claiming to 7 be the owner of agricultural land bearing block No.98/ II. The sale deed vide Ex.P7 produced by the plaintiff indicate that she is the owner of block No.98/II. Therefore, referring to the Commissioner's report as well as sketch and also having examined the Commissioner's report who is examined as C.W.1, the appellate Court was of the view that plaintiff has failed to substantiate her claim and therefore, the findings and conclusions recorded by the trial Court were found to be unsustainable. The appellate Court having reversed the findings recorded by the trial Court allowed the appeal and consequently dismissed the suit. These divergent findings are under challenge.
8. This Court vide order dated 12.2.2009 has admitted the appeal on following substantial questions of law:
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"1. Whether the judgment of the lower Court is in accordance with Order 41 Rule 31?
2. When the 2nd respondent even assuming that the bore-well is in his land, when he allowed the appellant for digging the bore-well, whether the 2nd respondent is entitled to claim any right regarding the same in view of the provisions of Easements Act?
3. The Court below has totally failed to read the evidence, which the appellant has produced and has arrived at a decision in the first paragraph itself, hence the judgment desires to be setaside?"
9. Heard the learned counsel appearing for the plaintiff. I have examined the divergent findings recorded by the Courts below.
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10. Before I advert to the substantial questions of law, it would be useful for this Court to cull out the prayer sought in the plaint which reads as under:
"(A) It be declare that, the defendants are having no manner of right, title or interest of what so ever over the borewell dug by plaintiff at point B in the suit land.
(B) Consequential relief of
permanent injunction be issued
against the defendants restraining
them, their family members, agents, servants, or any body claiming under or through them, from causing obstruction in the peaceful use and enjoyment of the borewell to irrigate the suit land, either for taking electricity suply or in any manner of causing injurious act to the Borewell shown by letters B in the plaint hand sketch, in the suit land."
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11. On perusal of prayer(A), this Court would find that the plaintiff has sought negative declaration. The plaintiff though asserts ownership over block No.98 II, she has not claimed any right over the suit borewell. On the contrary, the plaintiff has sought a declaration to declare that defendants have no manner of right and title over the suit borewell dug by the plaintiff.
12. It is a trite law that the party who approaches the Court has to stand on his own legs and cannot bank on defendants' weakness. It is the specific case of the plaintiff that she has dug borewell and the same is located in the land owned by her i.e. Survey No.98/II, while the Commissioner's report clearly indicates that the suit borewell is found to be located in Survey No.98/III owned by defendant No.2. There is absolutely no evidence let in by plaintiff to establish that suit borewell is dug by her 11 and the same is found to be located in Survey No.98 II. Except bald averments, no documents are produced to establish that she has dug the borewell. Therefore, this Court would find that there is absolutely no evidence to substantiate the claim of the plaintiff. On the contrary, the Commissioner's report clearly indicates that suit borewell is dug in Survey No.98 III.
13. If all these significant details are taken into consideration, then this Court is of the view that appellate Court was justified in holding that the trial Court erred in granting relief of declaration over the suit borewell when such a relief was not at all sought. The prayer sought in the plaint which is culled out supra clearly indicates that plaintiff is not claiming title over Survey No.98 II. Further no declaration is sought asserting right over the suit borewell and a negative declaration is sought to declare that 12 defendants have no manner of right, title and interest over the suit borewell. The evidence on record does not establish the plaintiff's case. In absence of clinching evidence, the plaintiff is not entitled for any relief. More over, since the negative declaration is sought, the appellate Court was justified in dismissing the suit. The nature of relief that is sought in the present suit could not have been entertained by the trial Court. Therefore, the judgment and decree passed by the trial Court in granting declaration of title in the absence of prayer suffers from serious infirmities. The said judgment and decree is rightly interfered with by the appellate Court. I do not find any infirmity in the judgment and decree rendered by the appellate Court. Therefore, the first substantial question of law formulated by this Court is answered in the affirmative. The second and third substantial 13 questions of law formulated by this Court do not arise for consideration.
14. Accordingly, the second appeal is dismissed.
Sd/-
JUDGE *alb/-.