Karnataka High Court
Smt Sheshamma Shedthy vs Sri Sadashiva Shetty on 18 January, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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RFA No. 1376 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
REGULAR FIRST APPEAL NO. 1376 OF 2006 (RES)
BETWEEN:
1. SMT SHESHAMMA SHEDTHY,
D/O ANAHAYYA SHETTY,
R/O NADOOR VILLAGE,
UDUPI TALUK.
2. JAYANTHI SHEDTHY
D/O NARAYANA SHETTY,
AGED ABOUT 45 YEARS,
R/O NADOOR VILLAGE,
UDUPI TALUK.
...APPELLANTS
(BY SRI. HAREESH BHANDARY T., ADVOCATE)
AND:
1. SRI SADASHIVA SHETTY,
S/O JAGANNATH SHETTY,
R/O NADOOR VILLAGE,
Digitally UDUPI TALUK - 576 01.
signed by
PANKAJA S ...RESPONDENT
Location: (BY SRI. AJITH ANAND SHETTY, ADVOCATE FOR
HIGH
COURT OF C/RESPONDENT)
KARNATAKA
THE RFA FILED UNDER SECTION 96 OF CIVIL
PROCEDURE, 1908 AGAINST THE JUDGEMENT AND DECREE
DATED 20.03.2006 PASSED IN O.S. NO.53 OF 2003 ON THE
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RFA No. 1376 of 2006
FILE OF THE CIVIL JUDGE (SR.DN.) KUNDAPURA, DECREEING
THE SUIT FOR DAMAGES.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Smt.Sheshamma Shedthy and Smt.Jayanthi Shedthy--the defendants are in appeal.
2. For the sake of convenience, the parties are referred to by their names instead of their rankings.
3. Sri.Sadashiva Shetty instituted a suit seeking for damages to the tune of Rs.1,10,000/- from Sheshamma Shedthy and Jayanthi Shedthy.
4. The claim was based on the assertion that by way of a mutual agreement, he had laid a pipeline from Nadoor- Moodbettu river (which was on the eastern side of his plot) across the lands of Sheshamma Shedthy and Jayanthi Shedthy in Sy.Nos.69/10, 69/14, 69/3 and 70/1A of Nadoor village, Udupi Taluk and through this pipeline, he was securing water for the purpose of irrigating his garden -3- RFA No. 1376 of 2006 land. He contended that he subsequently obtained permission under Section 90A of the Karnataka Land Revenue Act, 1964 (for short 'the Act') in respect of the pipeline which had already been laid and therefore, the pipeline that had been laid by him was lawful and authorised, and that Sheshamma Shedthy and Jayanthi Shedthy had no right to disrupt or obstruct for the use of this pipeline for supply of water.
5. Sadashiva Shetty contended that on 03.02.2001, Sheshamma Shedthy and Jayanthi Shedthy had obtained an ex parte´ interim order in O.S. No.9 of 2001 and they had thereafter damaged the underground pipeline laid in their lands and had prevented the supply of water in the pipeline to his garden and ever since, he could not irrigate his trees, plants, gardens and fields. He stated that subsequently, the interim order was vacated on 26.02.2001. He also stated that on account of non-supply of sufficient water, his trees in the garden suffered and ten -4- RFA No. 1376 of 2006 coconut trees had withered away, twenty areca-nut trees so also five mango trees had died. He also stated that the remaining trees in his garden were all stunted for want of water and had stopped giving any yield. He also stated that paddy fields were not cultivated and as a result, he had suffered a lot on account of tortious act disrupting the pipeline and also in the procurement of the ex parte´ interim order and also the filing of an appeal.
6. He contended that Sheshamma Shedthy and Jayanthi Shedthy continued to cause damage to the pipeline whenever the same was sought to be set right by him and he had therefore suffered a total loss for two continuous agricultural seasons. He had stated that he had spent more than Rs.1,20,000/- for laying the pipeline and for installing the pump-set and he had met those expenses by availing a bank loan and was also incurring huge loss by payment of interest every year. He stated that the restoration of entire underground pipeline -5- RFA No. 1376 of 2006 required a minimum sum of Rs.50,000/- and loss of yield in the garden and field was also to the extent of Rs.50,000/-. He therefore had suffered a net loss of Rs.3,00,000/-. However, he sought to restrict his claim of damages to the tune of Rs.1,10,000/- and gave up the rest of his claim.
7. Sheshamma Shedthy and Jayanthi Shedthy opposed the said claim by filing a written statement. They denied the assertion that on a mutual agreement, pipeline had been laid in their lands and that the lands of Sadashiva Shetty were being irrigated through the pipeline laid in their lands. They stated that the order obtained under Section 90A of the Act was not lawful and they contended they had not damaged the underground pipeline. They stated that there is no underground pipeline in existence at all and hence, there is no occasion to damage the underground pipeline. The assertion that several trees had died and the paddy fields could not be cultivated were all -6- RFA No. 1376 of 2006 false. The claim that a sum of Rs.1,20,000/- was paid or spent towards installation of the pump-set was also denied so also that the claim for damages to the tune of Rs.3,00,000/- had been suffered.
8. It was stated that no tortious act had been committed by them and they had proprietary rights over their lands and Sadashiva Shetty had no right to interfere on their rights over their land and the suit had been filed only to pressurise them to comply with the unreasonable demands.
9. The Trial Court on an evaluation of the pleadings determined that four issues were required to be tried in the suit.
10. One of the issues was as to whether Sheshamma Shedthy and Jayanthi Shedthy had illegally destroyed the pipeline laid in their lands and thereby caused loss to Sadashiva Shetty and other issue was as to whether he -7- RFA No. 1376 of 2006 was entitled to recover a sum of Rs.1,10,000/- with interest.
11. In support of his case, Sadashiva Shetty examined himself as PW-1 and one another witness and got exhibited thirteen documents. On behalf of Sheshamma Shedthy and Jayanthi Shedthy, one Bhojaraja Shetty--the son-in-law of Sheshamma Shedthy was examined as DW-1 and two documents were exhibited.
12. On consideration of the evidence adduced before it, the Trial Court recorded a finding that Sadashiva Shetty had established that Sheshamma Shedthy and Jayanthi Shedthy had illegally destroyed the pipeline and thereby caused loss to him. The Trial Court also held that Sadashiva Shetty was entitled to recover a sum of Rs.1,10,000/- with interest at the rate of 12 per cent per annum from the date of the suit till the date of payment. -8- RFA No. 1376 of 2006
13. Being aggrieved by the said decree, the present appeal has been filed by Sheshamma Shedthy and Jayanthi Shedthy.
14. The learned counsel for the appellants Sri.Hareesh Bhandary T., contended that there was absolutely no plea at all regarding the claim for damages suffered by Sadashiva Shetty. He stated that the entire basis of the claim stemmed from the allegation that the appellants had obtained an interim order on 03.02.2001 and had thereafter prevented the flow of water and since even according to the plaint averments, it was admitted that the interim order was vacated on 26.02.2001 i.e., within twenty-three days, the question of ten coconut trees, twenty areca nut trees and five mango trees dying was impossible and therefore, the entire claim was fictitious one.
15. He also submitted that though assertions were made that there was loss of Rs.3,00,000/- towards the -9- RFA No. 1376 of 2006 restoration of underground pipeline, the loss of yield and loss due to the dead trees, there was absolutely no evidence adduced in support of his claim. He also submitted that the findings of the Trial Court that a sum of Rs.1,10,000/- was liable to be made as damages was bereft of any reasons and therefore, the judgment and decree of the Trial Court could not be justified.
16. Learned counsel for the respondent, Sri.Ajith Anand Shetty, contended that the judgment and decree of the Trial Court was un-exceptionable and did not deserve to be disturbed in appeal. He submitted that the existence of the pipeline stood proved by the order that had been passed by the Tahasildar on 24.01.2001. He also submitted that the said order indicated that there was damage to the pipeline and this damage was also confirmed by the report of the Commissioner which had been obtained in O.S. No.9 of 2001 filed by Sheshamma Shedthy and Jayanthi Shedthy. He submitted that once
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RFA No. 1376 of 2006the damages to the pipeline had been established, the award of damages was inevitable since there was clear evidence that a sum of Rs.1,10,000/- had been spent towards laying the pipeline and the decree granted by the Trial Court could not be found fault with.
17. From the arguments advanced, the point that is required to be determined in this appeal is as to whether Sadashiva Shetty had proved that he had suffered loss to the tune of Rs.1,10,000/- by the damages caused to the pipeline that had been laid by him in the lands of Sheshamma Shedthy and Jayanthi Shedthy.
18. The following dates and events are not in dispute:
03.02.2001, the date on which an ex parte´ interim order was granted in O.S. No.9 of 2001.
26.02.2001, the date on which the interim order was vacated.
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RFA No. 1376 of 2006It is also not in dispute that about two weeks prior to the grant of an interim order, i.e., on 24.01.2001, Sadashiva Shetty had approached the Tahasildar for grant of permission under Section 90A of the Act to lay a pipeline and an order was passed in his favour on 24.01.2001 which was produced as Ex.P-11.
19. A reading of Ex.P.11 which was produced by Sadashiva Shetty himself would indicate that by an order dated 12.01.2001, permission had been granted to lay a pipeline on the land of Ramanna Shetty, Sheshamma Shedthy and Narayana Shetty and on 23.01.2001, the Revenue Inspector conducted a spot inspection pursuant to the order and had also identified the spot where the pipeline could be laid down so as to cause least possible damage. The order also indicates that when the Revenue Inspector approached the spot, objections were raised and he was not permitted to lay down the pipeline. The order also records that about a year and half ago, the pipeline
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RFA No. 1376 of 2006had already been laid and damage had been caused to the pipeline. The order also records that permission was sought for repairing the said pipeline and also to regularise the pipeline already laid. The order indicates that on consideration of the report of the Revenue Inspector, the order was being passed to regularise the pipeline already laid down, so also subjected to certain conditions.
20. One of the conditions was that the damage already caused to the pipeline could be repaired by Sadashiva Shetty by entering upon the land of Sheshamma Shedthy and Jayanthi Shedthy and the other condition was that he should execute an agreement as required under the Rules.
21. A reading of this order would thus indicate that there was an existing pipeline which had been damaged. However, the order does not indicate either directly or indirectly that the damage had been caused due to any external means and/or as to whether the damage was normal damage having regard to the age of the pipeline.
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RFA No. 1376 of 2006
22. The fact, however, remains that statutorily the pipeline existing in the land was not only regularised but permission was also granted under Section 90A of the Act to repair the pipeline. In the light of this statutory permission obtained by Sadashiva Shetty, the question of him suffering a further damage due to the prevention of water supply by virtue of the interim order granted in O.S. No.9 of 2001 would not arise.
23. Admittedly, the interim order granted was vacated within 23 days and by virtue of Ex.P-11, he had a statutory right to get the pipeline repaired and ensure that the water supply to his lands were not impeded in any manner. Admittedly, despite the order in his favour, no steps were taken by Sadashiva Shetty to ensure that the pipeline was repaired.
24. An argument was advanced that this order was also challenged before the Assistant Commissioner unsuccessfully.
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RFA No. 1376 of 2006
25. The fact remains that though the said order was challenged, Sadashiva Shetty did not take any positive steps to give effect to the order dated 24.01.2001 or to take recourse as provided in law for its implementation.
26. It has to be stated here that in the normal course, a person has no right to lay a pipeline in the land of the other, but, by virtue of the statutory provision, such a right is created under Section 90A of the Act.
27. In fact, Section 90A(4)1 of the Act states that after an order is passed under Section 90A of the Act and an agreement is also executed, the order would be a complete authority to enter upon the lands specified in the order with his assistants or workmen and do all such work as may be necessary for the construction of the water course and for repairing or maintaining the same. 1 90A. Construction of Water Course through land belonging to other persons.--(1) x x x (4) Any order made under sub-section (2) shall after the applicant executes an agreement as required under clause (f) of sub-section (2) be a complete authority to him or to any agent or other person employed by him for the purpose to enter upon the land specified in the order with assistants or workmen and to do all such work as may be necessary for the construction of the water course and for repairing or maintaining the same.
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RFA No. 1376 of 2006
28. Admittedly, an agreement was also entered into within fifteen days i.e., on 01.02.2001 as per Ex.P-12. Thus, when Sadashiva Shetty had the statutory right to enter upon the land of Sheshamma Shedthy and Jayanthi Shedthy and get his pipeline repaired, it would not be open for him to contend that there was disruption of water flow and this had caused him a huge loss for which he would entitled to be compensated. It has to be stated here that the alleged obstruction of water flow causing damage to the pipeline would lose all significance in view of the order that Sadashiva Shetty obtained at the hands of Tahasildar. Sadashiva Shetty by approaching the Tahasildar was conscious of his legal rights that he had to lay a water course in the lands of Sheshamma Shedthy and Jayanthi Shedthy. By not seeking to enforce the said order and by choosing to sleep over the right that he had procured in the said order, he could not contend that there has been disruption of water flow which has caused financial loss to him. In the light of this legal position, the
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RFA No. 1376 of 2006entire claim of Sadashiva Shetty would have to necessarily fail.
29. The Trial Court, in my view, has viewed the matter from an improper perspective. The Trial Court has not examined the statutory provision which granted Sadashiva Shetty a right to get the pipeline repaired. It has proceeded on the footing that the pipeline was damaged and it had caused loss to Sadashiva Shetty. It has to be stated here that but for the order passed under Section 90A of the Act, Sadashiva Shetty had no legal right to seek for laying a pipeline in the land of Sheshamma Shedthy and Jayanthi Shedthy. The pleas set forth by him that by way of mutual agreement, a pipeline was laid and it however was not admitted by them would also be of no significance in the light of the permission obtained by him.
30. It is no doubt true that there is evidence suggesting that there was an existing pipeline but there is nothing on record to establish that Sheshamma Shedthy and Jayanthi
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RFA No. 1376 of 2006Shedthy was under a legal obligation to permit the continuation of the existing pipeline prior to the passing of the order under Section 90A of the Act.
31. The owner of the land would have the right to object to the existence of a pipeline in his land and the only exception to the said legal position is the existence of an order passed by the Revenue Authorities under Section 90A of the Act. Sadashiva Shetty has failed to establish that there was some legal obligation cast upon Sheshamma Shedthy and Jayanthi Shedthy to permit him to continue the supply of water flow through the pipeline which existed.
32. In my view, this contention would also become academic by virtue of the fact that Sadashiva Shetty discarded this mutual agreement and had approached the authorities for protection under Section 90A of the Act.
33. Having obtained an order under Section 90A of the Act, Sadashiva Shetty cannot fall back upon the alleged
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RFA No. 1376 of 2006mutual agreement and contend a breach of mutual agreement resulted him in causing damages to him and eventually incurred loss. The point for consideration is answered accordingly.
34. I am therefore of the view that the impugned judgment and decree passed by the Trial Court cannot be sustained and the same is set aside.
35. The appeal is accordingly allowed with cost.
Sd/-
JUDGE RK CT:SN List No.: 2 Sl No.: 3