Andhra HC (Pre-Telangana)
Neerukonda Venkata Ratnam And Ors. vs Neerukonda Lakshmi And Ors. on 8 October, 1996
Equivalent citations: 1996(4)ALT884
Author: K.B. Siddappa
Bench: K.B. Siddappa
ORDER K.B. Siddappa, J.
1. This Revision petition is filed against the judgment dated 21-7-1995 passed in C.M.A. 10/95 on the file of the Subordinate Judge, Kowur, West Godavari district
2. The plaintiffs are the revision petitioners. They filed the suit for permanent injunction with regard to pathway marked as 'ABCD' in the plaint schedule. They also claimed right of taking water along 'bodi' BBI, LLI and KKI, pending disposal of the main suit. The trial Court after considering the material available on record found prima facie case and balance of convenience in favour of the plaintiffs and the respondents/defendants were restrained from interfering with the right of the petitioners/ plaintiffs for using 10 'width of land as passage in 'ABCD' portion on the eastern side of the respondents' land. The respondents were also further restrained from interfering with the right of taking water from (sic.for) petitioners 'land along BBI, LLI and KKI 'bodi' from the bore well on payment of electricity consumption charges. Aggrieved by the said order, the defendants carried the matter in Civil Miscellaneous Appeal which ended in their favour. Aggrieved by the said judgment, the present revision petition is filed.
3. The admitted facts are that the plaintiff No. 1 and husband of the first respondent are brothers. In oral partition, Survey Number 454/2 was divided equally between the brothers getting Ac. 1-91 cents to each share. The plaintiffs contend that there is no other path except 'ABCD' passage to their land for ingress and egress. The width is of l0' covering the extent of five cents in the land of the defendants. There is also a well through which they have right to draw water to cultivate their land. To ascertain the factual position a commissioner was appointed. The commissioner's report is marked as Ex.C-1 and the plan is marked as Ex.C-2. The Commissioner inspected the land in the presence of both the parties. He did not find any other passage to the land of the petitioners. Of course the commissioner did not find any feasible passage along 'ABCD' but the commissioner's report is clear that it is not possible to take the. yokes or carts of the petitioners along AD bund. This conclusively establishes that there is no passage except the passage in question to go to the land of the petitioners. The trial Court considered the provisions of Section 13 of the Indian Easements Act, 1882 and came to the conclusion that the petitioners are entitled to the passage as easement of necessity.
4. As far as the bore-well is concerned, it is in the North-East corner of the respondents' land. The contention of the respondents is that late Ramachandra Rao alone got dug the bore and the petitioners have no right. On the other hand, it is the case of the petitioners that the bore-well was in existence before partition and it was meant for both the lands. They stated that they are also paying electricity consumption charges. The 'bodi' was formed only for the purpose of taking water to their land from the bore-well. In proof of their payment of electricity charges, they filed Exs. A-1 to A-34. The commissioner found the existence of BBI, LLI and KKI 'bodi' which lies in the land of the respondents from East to West. In these circumstances, the trial Court held that the above 'bodi' was formed only for the purpose of supply of water to both the lands.
5. This well-considered order of the trial Court was erroneously reversed by the lower appellate Court. The lower appellate Court held that the petitioners herein did not prove prima facie case in respect of ABCD pathway. The commissioner's report Ex.C-1 and the plan Ex. C-2 were perused. The fact that the commissioner did not find any pathway as shown in the plan was taken into consideration. The lower appellate Court also taken into consideration 'donda' crop and also sugarcane crop raised in the portion of 'ABCD' path. It may be true as to these facts but the other circumstances were not considered by the lower appellate Court. The Commissioner's report is quite clear in respect of the fact that there was no other alternative passage to the petitioners' land. When there is partition between the brothers by necessary implication, by virtue of Section 13 of the Indian Easements Act, 1882, the easement right with regard to passage to other portion is certainly contemplated. The reasons given by the lower appellate Court with regard to the non-existence of 'ABCD' path are not convincing. The bund which is 1 1/2' in width along the eastern edge of the respondents' plot is not wide enough for cart and other vehicles to go into the land of the petitioners. This aspect was not properly considered by the lower appellate Court. As far as Exs. A-1 to A-34 are concerned, the petitioners assert that they are paying charges for consumption of electricity while drawing the water. There is no circumstance prima facie to disbelieve Exs. A-1 to A-34 which are in favour of the petitioners. It is not the case of the respondents that there is another bore-well for drawing water by the petitioners and these receipts pertain to that. Prima facie for the purpose of this petition, these receipts can be taken as supporting the case of the petitioners.
6. Seen from any angle, the judgment of the lower appellate Court cannot be sustained. Therefore, I set aside the same and restore the injunction order dated 16-6-1995 granted by the Principal District Munsif, Kowur in I.A.484/1994 in O.S.88/1994. The C.R.P. is allowed, but in the circumstances, without costs.