Karnataka High Court
Sri Seetharama Bhat vs Smt. Parameshwari Since Dead on 2 June, 2025
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NC: 2025:KHC:18568
RSA No. 1054 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1054 OF 2013
(DEC/INJ)
BETWEEN:
SRI SEETHARAMA BHAT
S/O VENKATESHWARA BHAT
AGED 79 YEARS
R/A VOLABAILUR OF ALIKE VILLAGE
POST: ALIKE 574211
BANTWAL TQ., D.K. DISTRICT
...APPELLANT
(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE)
AND:
Digitally SMT. PARAMESHWARI
signed by SINCE DEAD
SUNITHA K S
Location: 1. LEELAVATHI
HIGH COURT AGED ABOUT: 57 YEARS
OF
KARNATAKA 2. SHEELAVATHI
AGED ABOUT: 57 YEARS
3. SUNDARI
AGED ABOUT: 50 YEARS
RESPONDENT Nos. 1,2 AND 3 ARE
CHILDREN OF LATE APPAYYA NAIKA
ALL ARE R/A KODIJALU VILLAGE
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NC: 2025:KHC:18568
RSA No. 1054 of 2013
HC-KAR
POST: ALIKE
BANTWAL TQ., D.K. DISTRICT - 574 211
4. PARVATHI
AGED ABOUT: 79 YEARS
SINCE DEAD BY LEGAL REPRESENTATIVE
4(A) VENKATESH
S/O PARVATHI
R/A SENDRAGAYA HOUSE
VIJAYADKA POST
BANTWAL TALUK 574211
D.K. DISTRICT
5. SEETHU
D/O LATE APPAYYA NAIKA
AGED ABOUT: 59 YEARS
6. MEENAKSHI
D/O LATE APPAYYA NAIKA
AGED ABOUT: 54 YEARS
7. GOPALA
S/O SARASWATHI
AGED ABOUT: 33 YEARS
8. SURESH
S/O LATE SARASWATHI
AGED ABOUT: 30 YEARS
SL. No.7 & 8 ARE THE CHILDREN OF
SARASWATHI, THE DECEASED DAUGHTER OF
PARAMESHWARI
SL. No. 5 TO 8 ARE
R/A KODIJALU OF ALIKE VILLAGE & POST
BANTWAL TQ., DIST: D.K. - 574 211
9. BANTU MOOLYA
S/O MANJAPPA MOOLYA
AGED ABOUT: 74 YEARS
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NC: 2025:KHC:18568
RSA No. 1054 of 2013
HC-KAR
R/A: VOLABAILU OF ALIKE VILLAGE
POST: ALIKE - 574211
BANTWAL TQ., DIST: D.K.
...RESPONDENTS
(BY SRI. PUNDIKAI ESHWAR BHAT, ADVOCATE FOR R2,R3 & R5
R1, R6 AND R9 ARE SERVED
V/O DATED 12.03.2019 APPEAL AGAINST R4(A) IS ABATED
R7 & R8 ARED H/S)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 27.2.2013 PASSED IN
R.A.NO.123/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC., BANTWAL, D.K, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DTD 18.10.2003 PASSED
IN OS.NO.526/1989 ON THE FILE OF THE PRL. CVIL JUDGE
(JR.DN) BANTWAL.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 27.02.2013 passed in R.A.No.123/2006 by the learned Senior Civil Judge and JMFC, Bantwala, D.K. District.
2. For convenience, the parties are referred to based on their rankings before the trial Court. The -4- NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR appellant was defendant No.1, respondents No.1 to 8 were the plaintiffs and respondent No.9 was defendant No.2.
3. Brief facts, leading rise to the filing of this appeal are as follows:
The plaintiff filed a suit against the defendant for declaration that they are entitled to take water in the land in Sy.No.52/4 of Alike village from the pond marked as 'P' in the sketch for domestic purposes and also an easement and prohibition and also for a consequential relief of prohibitory injunction restraining the defendants from obstructing the plaintiffs from taking water. It is the case of the plaintiffs that Appayya Naika was the husband of plaintiff No.1 and father of plaintiffs No.2 to 4 and he was a chalageni tenant in respect of Sy.No.51/1A2 Punja measuring 42 cents and Sy.No.51/4 measuring 2.25 acres of Alike village under defendant No.1. The plaintiff No.1's husband submitted an application under Form-7 before the Land Tribunal for grant of occupancy rights in respect of aforesaid lands. He died in 1984, leaving behind the -5- NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR plaintiffs and the other children as his legal heirs. A suit is filed on behalf of all the heirs of Appayya Naika. The residential house of Appayya Naika is situated at land bearing Sy.No.51/4 of Alike village. He was in possession and enjoyment of the said land in Sy.No.51/1A2 and Sy.No.51/4 for more than 35 years.
4. Before Appayya Naika, one Lingappa Nayak was in possession as a chalageni tenant. Apart from the possession of the land bearing Sy.No.51/1A1A1B, measuring 3 acres, Sy.No.52/1, measuring 4.04 acres of Alike Village. Appayya Naika and the plaintiffs have developed the land. There is a small water pond located in Sy.No.52/4 of Alike village. It is a spring water source from which approximately 10 to 15 pots of water are collected daily in the said pond marked as 'P' in the sketch. The plaintiffs and predecessors have been taking water from the said pond, i.e., 'P' in the sketch for 40 years and using it for drinking and domestic purposes. It is contended that in the revenue records the water source is -6- NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR reserved in Dharkhast in which Sy.No.52/1, 52/2 and 52/4 were granted.
5. It is contended that defendant No.1 is the owner of the said pond and defendants are trying to object and obstruct the plaintiffs while taking water from the pond. It is contended that the plaintiffs objected to the grant of occupancy rights. Defendants No.1 and 2 obstructed and objected on 04.12.1989 when the plaintiffs were taking water for drinking purposes from the pond. Hence, a cause of action arose for the plaintiffs to file a suit for declaration and a permanent injunction. Accordingly, prays to decree the suit.
6. The defendant No.1 filed a written statement contending that the suit filed by the plaintiffs is false and frivolous and not maintainable on law and on facts and also denied the averments made in the plaint. It is contended that the alleged pond was not a pond at all. It was a tank formerly located in Sy.No.52/4, including some -7- NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR other lands belonging to Adwai Subbanna Bhat and his son, Krishna Bhat. Krishna Bhat has leased out Sy.No.52/4 to the defendant family and subsequently defendant No.1 and his brothers have jointly purchased the said land from the aforesaid owners and there was a partition between defendant No.1 and his brother and in the said partition Sy.No.52/4 fell to the share of defendant No.1 and it is renumbered as Sy.No.52/4B. The vendors constructed the said tank and they are using it for agricultural purpose. It is contended that the plaintiffs have no right to take water from the tank or pond. It is contended that the plaintiffs have a water source in Sy.No.51/4 i.e., the tank situated near their house and they are taking water for their domestic purpose from the said land and the plaintiffs' predecessors were also taking water from the said tank. The plaintiffs have no right over the alleged pond. It is also contended that plaintiffs have no easementry right or necessity. Hence, prays to dismiss the suit. -8-
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7. Defendant No.2 filed a written statement denying the averments made in the plaint and hence, prays to dismiss the suit against defendant No.2.
8. The trial Court based on the pleadings of the parties, framed the following issues and additional issues:
ISSUES
1) Whether the plaintiffs prove that they have got right to take water from pond 'P' situated in Sy.No.52/4 of the Alike Village for drinking and domestic purpose and said right is an easementary one?
2) Whether the plaintiffs prove that defendants have objected and obstructed from taking water from said pond by plaintiffs?
3) What order or decree?
Addl. Issues:
1) Whether the plaintiffs further prove that they are entitled for easementary right as well as prescriptive right to take water from pond 'P' situated in Sy.No.52/4 of Alike Village?
9. The plaintiffs, to prove their case, plaintiff No.2 was examined as PW-1, examined one witness as PW-2 and marked 8 documents as Exs.P.1 to P.8. On the other hand, defendant No.1 was examined as DW-1, examined -9- NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR one witness as DW-2 and marked 9 documents as Ex.D.1 to D.9.
10. The trial Court, after recording the evidence, hearing on both sides and on assessing the verbal and documentary evidence, answered issues No.1, 2 and additional issue No.1 in the negative and issue No.3 as per the final order.
11. The suit of the plaintiffs was dismissed vide judgment dated 18.10.2003. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.526/1989 preferred an appeal in R.A.No.123/2006 on the file of learned Senior Civil Judge and JMFC, Bantwala, D.K. District.
12. The first appellate Court, after hearing learned counsel for the parties, framed the following points for consideration:-
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR POINTS
1) Whether the appellants/plaintiffs have perfected their right of user of water from the pond situated in Sy.No.52/4 as a quasi easement and easement of necessity by prescription?
2) Whether the plaintiffs prove that the defendants have obstructed them from using water for domestic purpose from the pond situated in the Sy.No.52/4 marked as 'P' in the sketch?
3) Whether the defendants prove that the plaintiffs making use of the water from the tank situated in the land of the plaintiffs?
4) Whether it is necessary to interfere with the judgment and decree passed by the trial Court only with regard to the direction issued to the appellant/plaintiff?
5) To what order or decree?
13. The first appellate Court, on reassessing verbal and documentary evidence, answered points No.2 and 4 in the affirmative, point No.3 in the negative and point No.5 as per the final order. The appeal was allowed and the judgment and decree passed in O.S.No.526/1989 dated 18.10.2003 was set aside vide judgment dated
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR 27.02.2013. The suit of the plaintiffs was decreed. It is ordered and declared that plaintiffs have the right to take water for domestic purposes from the pond marked as 'P' in the sketch situated in the land Sy.No.52/4 of Alike village. Defendants are restrained from blocking and obstructing the plaintiff from taking water for domestic purpose. Defendant No.1 aggrieved by the judgment and decree passed in R.A.No.123/2006 dated 27.02.2013 filed this Regular Second Appeal.
14. Heard the arguments of the learned counsel for defendant No.1 and also learned counsel for the legal representatives of the plaintiffs.
15. Learned counsel for defendant No.1 submits that the plaintiffs have no right to take water from the alleged pond. He also submits that plaintiffs are claiming easementary rights over the pond. The plaintiffs have failed to establish their legal rights over the pond. He submits that the Court Commissioner has submitted a report and both plaintiffs and defendants have filed
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR objections to the Court Commissioner's report. He submits that water from the said pond was not used for drinking purpose. He submits that the said aspect was not correctly considered by the first appellate Court and further that the first appellate Court has not properly assigned a detailed reasons for reversing the judgment and decree passed by the trial Court. He also submits that the first appellate Court committed an error in considering the Commissioner's report. He also submits that as per Section 4 of the Indian Easement Act an easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. He submits that the first appellate Court has not considered Section 4 of the Easement Act, and proceeded to pass the impugned judgment. He submits that the impugned judgment passed
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR by the first appellate Court is contrary to the records. Hence, on these grounds he prays to allow the appeal.
16. Per contra, learned counsel for the plaintiff submits that the plaintiffs have the right of the easement to take water from the pond and the first appellate Court was justified in passing the impugned judgment. He also submits that the first appellate Court, based on the arguments produced by the plaintiffs, has rightly passed the impugned judgment and hence, the impugned judgment passed by the first appellate Court is just and proper and does not call for interference. Accordingly, on these grounds he prays to dismiss the appeal.
17. This appeal was admitted on 10.02.2020 to consider the following substantial question of law.
"Whether the first appellate court committed an error in considering the right of the plaintiffs to draw water from tank T-3 as per commissioner report, as easement and that the
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR plaintiffs had a right to lift the water from land bearing survey No. 52/4?."
Regarding substantial question of law
18. The plaintiffs, to prove their case, plaintiff No.2 was examined as PW1, she deposed that the husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 4 was a chalgeni tenant regarding the land in Survey No. 51/1A2 Punja measuring 42 cents, survey 51/4 measuring 2.25 acres of Alike village under the defendant No.1, Appayya Naika i.e. the husband of plaintiff No.1 submitted an application for grant of occupancy right before the land tribunal on 23.12.1980. Appayya Naika passed away in 1984, leaving behind the plaintiff and others as his legal heirs. It is deposed that, residential house was occupied by Appayya Naika, and now, by the plaintiffs situated in Sy.No.51/4 of Alike Village. Appayya Naika has been in possession and enjoyment of Sy.No.51/4 and Sy.No.51/1A2 for 35 years.
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19. Before Appayya Naika, one Lingappa Naika was in possession as a chalageni tenant. Apart from that the plaintiffs are also in possession of surrounding government land in Sy.No.51/1A1A1B, measuring 3 acres and Sy.No.52/1, measuring 4.04 acres of Alike village. The plaintiff and Appayya Naika made an improvement in the suit schedule property. There is a small water pond in Sy.No.52/4 of Alike village, it is a spring water source (Chimney), and the said plaintiff is drawing the water from the said pond for drinking purposes. The defendants had no right to shut the plaintiffs from drawing the water in the pond marked as "P" in the sketch i.e., in the said property.
20. The plaintiffs, to prove their case, have produced the documents.
Ex.P1 is the copy of the RTC extract of the land bearing Sy.No.51/4 of alike Village.
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR Ex.P2 is the RTC extract of the land in Sy.No.51/1A2 of Alike Village.
Ex.P3 is the RTC extract of the land in Sy.No.52/4A of Alike Village.
Ex.P4 is the order of the land tribunal dated 23.02.1980 Ex.P5 is the sketch issued by the Village Accountant Ex.P6 is the certified copy of the Adangal extract Ex.P7 is the order passed by the Tahsildar Ex.P8 is the photo of the suit schedule property
21. During the course of cross examination of PW1, it was elicited that his father was residing in a house situated in Sy.No.51/4. It is denied that plaintiff No.1's father was in possession of the house located at Sy.No.51/4 only. It is denied that before the plaintiff No.1's father Lingappa Naik was the owner of land bearing Sy.No.51/4 and Sy.No.51/1A-2. PW1 has ignored that the
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR land possessed by Lingappa Naik was a Varga Inam Land. It is denied that there is a pond in Sy.No.51/4. It is suggested that the plaintiffs have no right over the pond and that there is a tank situated by the side of the bath shed on land situated in Sy.No.51/4 of the plaintiffs and that they were using the same. The said suggestion was denied by PW1.
22. The plaintiffs also examined one witness as PW2, i.e. Devu Gowda, who deposed that, deceased Parameshwari, her children, Seetharam Bhat and Bantu Moolya are known to him and his house is situated at about one furlong from the house of Parameshwari. Frequently he visits the plaintiffs' land. He has deposed that no one is using water from the said pond except plaintiffs.
23. In rebuttal, defendant No.1 was examined as DW1. He reiterated the written statement averments in the examination-in-chief, and he deposed that, the
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR plaintiffs have no right to draw water from the pond situated on the land, bearing Sy.No.52/4. He has also deposed that, the plaintiffs have no right to use the water from the pond. He has deposed that the said pond is situated in his land i.e. in Sy.No.52/4.
24. During the course of cross examination of DW1, the suggestion was put to DW1 that the plaintiffs have the right to draw water from the pond situated in Sy.No.52/4, and the defendants have no right to obstruct from drawing the water from the pond. The said suggestion was denied by DW1.
25. The defendants also examined one witness as DW2. His examination-in-chief is on the same lines of DW1. During the pendency of the suit, a Court Commissioner was appointed and after visiting the site the Court Commissioner has submitted a report. Although both the plaintiffs and defendants have filed objections to
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR the Commissioner's report, none of the parties to the suit have examined the Court Commissioner.
26. Though, the said Commissioner's report was not marked. As per Rule 2 Sub Rule 10 of Order 26, the said report shall form a part of the record. From the perusal of the Court Commissioner's report, the Commissioner visited the suit schedule property on 16.12.1989 and 19.03.1990, and the Commissioner identified the suit schedule property with the assistance of the Village Accountant concerned, and the parties and their advocates were present.
27. The pond referred to in the warrant is shown in the eye sketch annexed to the report and the same is shown in the green colour and marked as "T3". The pond is at a distance of 3 chains from the plaintiffs', house "H1", shown in the sketch. The dimensions of the pond are 4 feet in length and 1 ½ - 2 ft in breadth. During the first visit i.e. on 16.12.1989, the water content in the pond was 2 feet, and during the 2nd visit on 19.03.1990 it was only
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR 16 inches, and the water in the pond was not clean and the pond was surrounded by rocks, and the area surrounding the pond is just like a small valley extending towards the south shown in the sketch, in green dark marks, and the distance between the plaintiffs' house i.e., H1 to the pond, which are at distance of about 3 chains, and there is a path way i.e., P1, P1, P1 as shown in the sketch, and P2, P 2, P2 is another small pathway commencing from "RRR" road and runs near the house "H2" of 2nd defendant, and tank-T2 belongs to the defendant No.1 and another branch joining a field bund. The water tank - T2 containing water about 7ft during the second visit, is in the coconut garden of 1st defendant, and the said tank is at distance of about 6 chains from defendant No.2's house "H2", and at the distance of about 15 ft from the bath shed, there is a tank of "T1" as shown in the sketch, and the said water is not suitable for utilizing it, for drinking purpose, since the loose raw mud is accumulated at its bottom.
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR
28. From the perusal of the pleadings in the plaint and evidence, the plaintiff has not established a legal right to draw water from the pond existing in Sy.No.52/4. Admittedly, the plaintiff has filed a suit for declaration. To seek the relief of declaration, the plaintiff has to establish the legal right over the suit pond.
29. It is settled law that, a declarative decree can be granted, if the plaintiff has a legal right or interest at stake, that is being denied or questioned. The plaintiff must be able to demonstrate the claim to the relief, being sought. If the plaintiff fails to prove the claim, and cannot prove the claim, the Court cannot grant a declaration. The Hon'ble Apex Court, held that the plaintiff seeking the declarative decree must demonstrate the legal right or character, and if they could have sought further relief but omitted to do so, the Court would refuse to grant a declaration.
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR
30. The High Court of Madhya Pradesh in the case of State of Madhya Pradesh V/s Khan Bahadur HHDH Bhiwandiwala and Co.. reported in AIR 1971 MP 65 laid down prerequisites for a declarating suit and held that the plaintiff must establish that the plaintiff is entitled to any legal character or right to any property and he is not in position to claim a further relief than a bare declaration.
31. Admittedly, the distance between the pond and the house of the plaintiffs is far away, and from the perusal of the Court Commissioner's report it appears that the water in pond "T1" is not suitable for drinking purposes and there is another water tank, i.e. T2. The plaintiff can draw water from the Tank-T2.
32. To consider the case on hand, it is necessary to examine para 18 of the judgment in O.S.No.526/1989 which reads as under:
18. In support of plaintiffs' case, the learned counsel for the plaintiffs also relied on
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR Easement Act Book 118 of Easements Act, which reads as under:
"118. Right to take water from another's well may be acquired as an easement. It is plain, as was pointed out by Lord Campbell, C.J., in Race v. Ward that water, as it issues on excavation of a well or a tank is not to be considered as produce of the soil and that a right to enter on land and to take such water may be acquired as an easement. This right, it is obvious, may be analysed into two constituent elements, namely, a right to go on the land of the servient owner and a right to take the water which stands on his land, and so long as it stands there is his property. The two constituent rights are acquired simultaneously but each must nevertheless be acquired in conformity with the statute".
33. Section 118 provides the right to take water from another well may be acquired as an easement. The right to enter on the land or the right to take such water may be acquired as an easement. In the case on hand, the plaintiff except the oral evidence, has not produced any records to show that, the plaintiff was drawing water from the suit pond for more than 20 years. To claim the easementry right, the plaintiff has to establish that the plaintiff has been using the easementry right for more
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR than 20 years. The trial Court considered Section 4, 15, 16 and 26 of the Easement Act, considered the Commissioner's report, and further, appreciated the entire evidence of PW1 and PW2, and recorded a finding that the evidence of PW1 and PW2 are quite contrary to each other, and their evidence are not corroborated with the Commissioner's report, and also that the plaintiff has failed to prove the ingredients of the easement of necessity, and quasi easement, and also recorded a finding that for all these years, the plaintiffs are residing in the said house without water for drinking purpose by other sources, and no explanation is offered by the plaintiffs' side and also perused the contents of Ex.P6 and Ex.P7 and Ex.P6 and Ex.P7 does not pertain to Sy.No.52/4. Furthermore, the plaintiff has failed to establish that the plaintiff was drawing the water in a peaceful and open manner, as they had enjoyed it for 20 years.
34. The trial Court was justified in dismissing the suit of the plaintiff. The first appellate Court, without
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR considering the entire evidence on record committed an error in reversing the judgment of the trial Court. The first appellate Court passed an impugned judgment, based on certain admissions of DW1 and DW2.
35. The first Appellate Court has failed to consider the well established principles of law as laid down in the case of Union of India and Others V/s Vasavi Co- operative Housing Society Limited and Others reported in AIR 2014 SCC 937, wherein, the Hon'ble Apex Court in para 16 held as under:
"We notice that the trial court as well as the High Court rather than examining that question in depth, as to whether the plaintiffs have succeeded in establishing their title on the scheduled suit land, went on to examine in depth the weakness of the defendants title. Defendants relied on the entries in the GLR and their possession or re-possession over the suit land to non-suit the Plaintiffs. The court went on to examine the correctness and evidentiary value of the entries in the GLR in the context of the
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR history and scope of Cantonment Act, 1924, the Cantonment Land Administration Rules, 1925 and tried to establish that no reliance could be placed on the GLR. The question is not whether the GLR could be accepted or not, the question is, whether the plaintiff could prove its title over the suit property in question. The entries in the GLR by themselves may not constitute title, but the question is whether entries made in Ext.A-3 would confer title or not on the Plaintiff."
36. Wherein the Hon'ble Apex Court held that the plaintiff must succeed his case independently and not on the weakness of the defendant. Without considering the said aspect, the first appellate Court committed an error in passing the impugned judgment.
37. In view of the above discussions, I answer substantial question of law in the affirmative.
38. Accordingly, I proceed to pass the following:
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NC: 2025:KHC:18568 RSA No. 1054 of 2013 HC-KAR ORDER
1. The Appeal is allowed.
2. The judgment and decree dated 27.02.2013 passed by the first appellate Court in R.A.No.123/2006 on the file of learned Senior Civil Judge and JMFC., Bantwal, Dakshina Kannada is set aside.
3. The judgment and decree dated 18.10.2003 passed by the trial Court in O.S.No.526/1989 on the file of learned Principal Civil Judge (Jr.Dn.) Bantwal is restored.
4. No order as to the costs.
5. In view of the disposal of the appeal, I.A.No.1/2013 does not survive for consideration, accordingly, I.A.No.1/2013 is disposed of.
Sd/-
(ASHOK S.KINAGI) JUDGE BVK/RCK, List No.: 1 Sl No.: 6