Karnataka High Court
Praveen Chandrashekar Ganiger vs Mohan Sangappa Ganiger on 8 April, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 8th DAY OF APRIL 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RFA No.664/2000 (DEC/INJ)
C/W
R.A.No.44/2000
IN RFA 664/2000
BETWEEN:
SRI.PRAVEEN CHANDRASHEKHAR GANIGER,
AGED ABOUT 26 YEARS,
S/O CHANDRASHEKAR GANIGER,
OCC: AGRICULTURIST, INAPUR,
TALUK: ATHANI, DIST: BELGAUM.
... APPELLANT
(BY SRI.V.P.KULKARNI, ADV.)
AND:
1. SRI.MOHAN SANGAPPA GANIGER,
AGED: MAJOR, S/O SANGAPPA GANIGER,
OCC: AGRICULTURIST, INAPUR,
TALUK: ATHANI, DIST: BELGAUM.
2. SRI.GIRIMALA S/O SHIVAPUTRA GANIGER,
AGED 38 YEARS, ,OCC: AGRICULTURIST,
RESIDENT OF INAPUR, TALUK: ATHANI,
DIST: BELGAUM.
... RESPONDENTS
(BY SRI.RAVI S.BALIKAI, ADV. FOR R1, R2 SERVED)
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THIS APPEAL IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 19.06.2000
PASSED IN O.S.NO.36/86 BY THE CIVIL JUDGE, SR.DN.
AND ASST. SESSIONS JUDGE, ATHANI, DECREEING THE
SUIT FOR DECLARATION AND INJUNCTION.
IN RA No.44/2000
BETWEEN
SHRI.PRAVIN CHANDRASHEKHAR GANIGER,
AGE: MAJOR, OCC: AGRICULTURE,
R/O AINAPUR, TALUKA: ATHANI,
DISTRICT: BELGAUM.
...APPELLANT
(BY SRI.V.P.KULKARNI, ADV.)
AND:
1. SHRI.ADIVEPPA SANGAPPA GANAGER,
AGE: MAJOR, OCC: AGRICULTURE,
R/O AINAPUR, TALUKA: ATHANI,
DISTRICT: BELGAUM.
2. SHRI.SHEKHAR SANGAPPA GANAGER,
REST -DO-
3. SHRI.RAVI SANGAPPA GANAGER,
REST - DO-
4. SHRI.MOHAN SANGAPPA GANAGER,
REST -DO-
5. SHRI.SANGAPPA GIRIMALLAPPA GANAGER,
REST - DO-
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6. SHRI.GIRIMALLA SHIVAPUTRA GANAGER,
REST -DO-
...RESPONDENTS
(BY SRI.RAVI S.BALIKAI, ADV.)
THIS APPEAL IS FILED UNDER SECTION 96 R/W
ORDER 41 RULE 1 OF CPC PRAYING TO ALLOW THE
APPEAL BY DECREEING O.S.NO.186/1992 WITH COSTS.
THESE APPEALS COMING ON FOR ARGUMENTS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Regular first appeal filed under Section 96 of CPC in RFA No.664/2000 has arise n out of the judgment and decree passed in O.S.No.36/1986, which was pending on the file of the Senior Civil Judge, Athani, Belgaum District. Connected regular appeal in No.R.A.44/2000 filed under Section 96 of CPC has arisen out of the judgment and decree passed in O.S.No.186/1992. Both these suits had been clubbed to record common evidence and these suits have been disposed of by a common judgment and decree dated 19.06.2000, by the learned Senior Civil Judge, Athani.
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2. O.S.No.36/1986 filed by Mohan Sangappa Ganiger has been decreed and O.S.No.186/1992 filed by Girimalla and others has been dismissed. Hence, regular first appeal bearing RFA No.664/2000 is filed by Praveen Chandrashekar Ganiger who is the purchaser of the suit schedule property during the pendency of the suit bearing O.S.No.36/1986 and this Praveenchandra is appellant in RFA No.664/2000 and he is plaintiff No.3 in original suit bearing O.S.No.186/1992.
3. Original suit bearing O.S.No.186/1992 had been filed by Girimalla and his brother Shivaputra for the reliefs of declaration to the effect that they are owners of land in Sy.No.413/2 measuring 4 acres of Ainapur village, Athani Taluk and also for further declaration that a well is situated on the boundary line in between Sy.No.413/1 and 413/2 of Ainapur and for permanent injunction. O.S.No.36/1986 has 5 been filed for the main relief of declaration to the effect that he is the absolute owner of land in Sy.No.413/1 measuring 5 acres 16 guntas and also for declaration that well shown in the hand sketch appended to the plaint exclusively belongs to him i.e., plaintiff Mohan Sangappa Ganiger and that it is well within the boundary of Sy.No.413/1.
4. Mr.Praveen Chandrashekhar Ganiger who has filed RFA No.664/2000 had filed an application under Section 151 of CPC seeking permission to file an appeal as he is affected by the judgment and decree passed in O.S.No.36/1986. That application has already been allowed and as such, he is permitted to prosecute the appeal in RFA No.664/2000.
5. The lone plaintiff Mr.Mohan Sangappa Ganiger of O.S.No.36/1986 chose to file a suit for the main relief of declaration that he is absolute owner in possession of the land bearing Sy.No.413/1 6 measuring 5 acres 16 guntas and that the well indicated in the letter 'W' as per the plaint sketch is within the area of Sy.No.413/1 and it exclusively belongs to him and for consequential relief of permanent injunction against the defendant from interfering with his lawful possession of the entire extent of land in Sy.No.413/1 and exclusive use of well situated therein.
6. The said suit bearing O.S.No.36/1986 came to be filed on 06.06.1986. When the suit was filed by Sri.Mohan Sangappa Ganiger, he was aged about 12 years and hence his elder brother Adivesh chose to represent him as a guardian. Consequent upon plaintiff attaining the majority and being eligible to prosecute the suit, his guardian has been discharged vide I.A.No.5 as per the order dated 27.06.1994.
7. The case of the plaintiff, as put forth in O.S.No.36/1986 is that, land in survey No.413/1 and 413/2 7 are adjacent lands and that both these lands originally belonged to one Girimallappa Sangappa Ganiger, who was the propositus. The said Girimallappa, the propositus had five sons namely, Siddappa, Shivaputrappa, Sangappa, Meleppa and Mallappa. All the five sons of propositus Girimallappa are no more. When suit was filed in the year 1986 by Mohan Sangappa Ganiger, second son of propositus i.e., Shivaputrappa was alive.
8. According to the plaintiff-Mohan who will be referred to as plaintiff in this case, there was a family arrangement between propositus - Girimallappa and his five sons, way back in 1947-48. Under the said family arrangement, according to the plaintiff, land in R.S.No.413/1 measuring 5.16 acres, which is described in the plaint appended to O.S.No.36/1986 was allotted to Sangappa, father of plaintiff and land in R.S.No.513/1 measuring 4 acres was allotted to the share of Shivaputrappa Ganiger, father of defendant Girimallappa. The land so allotted to the 8 plaintiff's father is indicated in letters ABCD as per the hand sketch appended to the plaint. Similarly, the land allotted to the defendant's father is indicated in letters CDEF as per the hand sketch appended to the plaint. The land allotted to the father of the plaintiff is on the western side of the land allotted to the father of the defendant.
9. As per the family arrangement that took place in the year 1947-48, the respective sharers gave a report to the revenue authorities by means of a joint wardi on 04.09.1948 and on the basis of the same mutation entry No.3666 was made on 12.09.1948 by the then village officers. The said entry is stated to have been duly certified on 07.10.1948.
10. According to the plaintiff, there was a family arrangement later on between the father of the plaintiff and his sons including the plaintiff, under which suit schedule land bearing No.413/1 was allotted to the share of the plaintiff and on the basis 9 of the same, report was given to the revenue authorities, on the basis of which an entry in M.E.No.8601 was made on 04.02.1975 and the same is duly certified. It is further mentioned that, a similar family arrangement took place between the father of the plaintiff and his sons including the defendant, under which entire land in survey No.413/2 was allotted to the share of the defendant. On the basis of the said arrangement, mutation entry bearing M.E.No.8597 was effected on 04.02.1975 and the same has been duly certified.
11. According to the plaintiff, there is a well within the boundaries of his land bearing survey No.413/1 and that nobody has any right on the entire property in survey No.413/1 and the well situated therein. He is stated to be exclusively enjoying the well situated in the land bearing survey No.413/1. The father of the defendant is stated to have constructed a bungalow in survey No.413/2 and the 10 same is indicated in letter 'H' as shown in the plaint sketch.
12. When the defendant started interfering with the title and possession of the land in survey No.413/1 exclusively owned and possessed by him and when he started interfering with the well possessed by him, he had no other alternative except to file a suit for the reliefs of declaration of title and permanent injunction both in regard to the land and the well situated therein. As such, suit came to be filed in O.S.No.36/1986.
13. According to the plaintiff, the well indicated in letter 'W' is on the north eastern side of his land in survey No.413/1 and the same is well within the boundaries of the land in survey No.413/1. According to the plaintiff, defendant is relying upon some documents showing further partition in the family and that the said document is a got up document and that he is not a party to the alleged 11 further partition or family arrangement relied upon by the defendant. To this effect, the plaint was got amended by him vide orders on I.A.VI dated 27.06.1994.
14. Defendant chose to file a detailed written statement admitting the relationship between the parties and the family arrangement of the year 1947-
48. What is disputed is about the existence of the well within the boundaries of land in survey No.413/1 as asserted by the plaintiff. According to the defendant, the well is situated in the boundary line of land in survey No.413/1 and 413/2. It is his case that, both the plaintiff and defendant have equal right to take water from the said well and the same cannot be obstructed by the plaintiff in any manner. Rough sketch is also appended to the written statement showing the existence of the well. According to the defendant, the well in question is in the vicinity of his house on the boundaries of these 12 two survey Nos. and that the same has had been used jointly by the plaintiff and defendant jointly. According to the defendant, he has installed a pump set in the vicinity of the well and has been drawing water from the said well from 1975. According to him, there were some confusion between the parties in regard to enjoyment of properties as per initial family arrangement that took place in the year 1947-
48. According to the defendant, further family arrangement took place between the sons of late Girimallappa as there were some confusion in the arrangement that took place in 1975. According to the defendant, arrangement was made enabling both the plaintiff and defendant to take the water jointly from the well for the benefit of their respective lands. In the partition/family arrangement that took place in year 1947-48 land in survey No.431/1 had fallen to the share of the father of the plaintiff and land in survey No.413/2 had fallen to the share of the father 13 of defendant. In the further family arrangement that took place in the year 1975, land in survey No.413/1 was allotted to plaintiff - Mohan and land in survey No.413/2 was allotted to defendant Girimalla. According to the defendant, plaintiff and defendant have been drawing water from this well to their respective land from 1980 uninterruptedly.
15. It is averred that 10 guntas of land is earmarked for the well and its surroundings. According to the defendant, the land of plaintiff is at a higher level than the land of the defendant. Since the plaintiff started interfering with his possession, defendant had to file a suit in O.S.No.45/1986 for the relief of declaration of title and permanent injunction on 16.07.1986 and temporary injunction had been obtained in the said case. The said suit is stated to be pending.
16. Defendant is stated to have installed an electric pump set by obtaining license from KEB. It 14 is further stated that, in the year 1971, one pump set had been installed to draw water and the father of the plaintiff and defendant had been drawing water by using the said pump set from the well in question and they were paying the electricity charges. Plaintiff is stated to have suppressed the material facts from the purview of the Court and that defendant does not have any source of water other than the water in the said well in question. Defendant is stated to have spent sufficient amount for installing a pump set in order to draw water. Defendant's averment is that, he has ½ right in the well to draw water and therefore, there cannot be any injunction against him from using the water of the well by means of pump set. Thus, he has requested the Court to dismiss the suit.
17. On the basis of the above pleadings, following issues came to be framed in O.S.No.36/1986:
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i. Whether the plaintiff proves that the description of the boundaries of the suit survey number as given in the plaint correct? ii. Whether the plaintiff proves that there is a well within Sy.No.413/1?
iii. Whether the plaintiff proves that he has exclusive right of enjoyment of the said well?
iv. Whether the plaintiff is entitled to the
declaration of ownership as regards
Sy.No.413/1 as described in the plaint? v. Whether the plaintiff proves that he is entitled to the declaration as regards the exclusive right or enjoyment of the wall described in the plaint?
vi. Whether the plaintiff proves that he has been in lawful and exclusive possession of the suit property as described in the plaint? 16 vii. Whether the plaintiff proves interference to possession and enjoyment of the suit property by the defendant?
viii. Whether plaintiff is entitled to the injunction sought for?
ix. What decree or order?
18. Girimalla, the lone defendant in
O.S.No.36/1986 chose to file a suit in
O.S.No.45/1986 before the Court of Civil Judge at Athani along with his father Shivaputrappa against Sangappa and his four sons inclusive of Mohan - the plaintiff of O.S.No.36/1986 on 16.07.1986 for the main relief of declaration that he is the absolute owner in possession of four acres of land in survey No.413/2 and for consequential relief of permanent injunction against interfering with his possession and also for declaration to the effect that he has ½ right to draw water from the well in question. 17
19. The property bearing survey No.413/2 was sold in favour of Sri. Praveen Chandrashekar Ganiger, the appellant in RFA No.664/2000 and in view of the alienation of the land in question bearing survey No.413/2 in favour of Praveen Ganiger on 02.12.1992 and 03.12.1992, i.e., during the pendency of the suit, the said purchaser has come on record as the third plaintiff under Order 1 Rule 10(2) of CPC in the trial Court. The contents of the plaint are identical to the contents of the written statement filed in connected suit bearing O.S.No.36/1986 and therefore, no admission is made to cull out the important averments made in the suit filed in O.S.No.45/1986 which is subsequently numbered as O.S.No.186/1992 (old No. 45/86). The contents of the written statement filed by the defendant in O.S.No.186/1992 are identical to the contents of the plaint filed in connected O.S.No.36/1986. On the 18 basis of the above pleadings, following issues came to be framed in O.S.No.186/1992:
i. Whether the plaintiff s proves that there is a well situate in between Sy.No.413/1 and 413/2 on the boundary separating the 2 survey number? ii. Whether the plaintiff s prove that they have a right to draw the water along with the line EFGH for irrigating his land as shown in the sketch? iii. Whether the plaintiff s proves that the western boundary of suit Sy.No. is as shown in the suit sketch?
iv. Whether the plaintiff s are entitled to the declaration sought?
v. Whether the plaintiff s prove interf erence to their right of enjoyment of the suit property by the def endants?
vi. Whether the plaintiff s are entitled to the permanent injunction sought f or?
vii. What decree or order?19
Addl. Issue i. Whether the def endant No.4 proves th at he is not bound by any transactions alleged to have been made by his f ather as a minor guardian during his minority if the allotment of Sy.No.413/1 to him?
20. Both suits came to be clubbed to record common evidence. Accordingly, common evidence is recorded in O.S.No.36/1986 being an earlier suit by examining Sri. Adiveppa Sangappa Ganiger, the elder brother of the plaintiff-Mohan as PW1, and 9 exhibits have been got marked on behalf of the plaintiffs. On behalf of the defendants, in all four witnesses have been examined including defendant Girimalla and as many as 32 exhibits have been got marked.
21. After hearing the arguments from the learned Counsel appearing for the parties and after analysing the evidence placed on record, the learned 20 Senior Civil Judge of Athani has answered issues 1 to 8 of O.S.No.36/1986 in the affirmative and issues 1 to 6 of O.S.No.186/1992 in the negative and additional issue No.1 in O.S.No.186/1992 in the affirmative. Consequently, suit bearing O.S. No. 36/1986 has been decreed as prayed for and O.S.No.186/1992 has been dismissed in its entirety.
It is these common judgments and decrees which are called in question on various grounds as set out in the appeal memo filed under Section 96 of CPC.
22. Entire lower Court records of these two suits have been called for. Appeal had been filed under Section 96 of CPC against the judgment and decree passed in O.S.No.186/1992 before the Court of District Judge, Belgaum and its number is R.A. No. 44/2000. Since the pleadings of the parties in both suits are identical, the said appeal has been withdrawn and transferred to this Court to be clubbed along with RFA No.664/2000 and to dispose 21 of the same by common judgment. Hence R.A.44/2000 is clubbed with RFA 664/2000. Both these appeals have been admitted and hence they have been taken up for final disposal.
23. An application is filed under Order 41 Rule 27 of CPC on behalf of the appellant in RFA 664/2000 along with certain documents requesting this Court to permit the appellant to adduce additional evidence. Certified copy of the plaint filed in O.S.No.23/2002 filed by Adavesh, She khar and Ravi against the father Sangappa, mother Parvati and sisters of Mohan - the plaintiff in O.S.No.36/1986 for the partition and separate possession of suit schedule properties inclusive of survey No.413/1 which is the subject matter of suit in O.S.No.36/1986, certified copy of final decree passed in O.S.23/2002 and the certified copy of the order sheet dated 15.06.2002 are produced. Objections have been filed to this application. Though learned 22 Counsel for the respondent has filed detailed objections, there cannot be any serious objections for marking these documents, as they are the certified copies of the plaint filed before a competent Civil Court and the decree drawn by the said Court on the basis of the compromise entered into between the parties.
24. Even otherwise, these documents are subsequent to the filing of the suit in O.S.No.36/1996 and O.S.No.186/1992. Therefore, the defendant could not have produced these documents, as the y had not come into notice at all. These documents are relevant in the sense that they could be looked into as to what is the effect of such a compromise on the existing dispute relating to the well in question. Hence these three documents namely certified copy of the plaint, copy of the final decree and copy of the order sheet maintained in O.S.No.23/2002 are marked, as no proof of the same 23 is required, more particularly, being the documents in judicial proceedings. Certified copy of the plaint is marked as Ex.D33, certified copy of the compromise petition is marked as Ex.D34, certified copy of the decree drawn in O.S.No.23/2002 is marked as Ex.D35 and certified copy of order sheet of the said suit is marked as Ex.D36.
25. Learned Counsel for the appellant has vehemently argued that Ex.D14 has been duly proved in accordance with law and that the trial Court has ignored the same on the ground that, Sangappa, father of the plaintiff had no authority to enter into any arrangement in respect of the properties, which had already fallen to the share of plaintiff - Mohan.
26. According to the learned Counsel for the appellant, Ex.D14 has been proved by examining two attesting witnesses and there are no sufficient grounds to disbelieve their testimony in regard to due execution of Ex.D14 and the authenticity of the 24 same. What is argued before this Court by the learned Counsel for the appellant is that, Ex.D14 is a document, which has come into existence after the family arrangement took place in the year 1975. Therefore, it is argued that the family arrangement that took place in 1975 cannot be construed as a concluded partition for all practical purposes. It is argued by the learned Counsel for the appellant that, a family arrangement of 1975 is not a partition, more particularly in the light of suit being filed in O.S. No. 23/2002 by the sons of Sangappa against Sangappa and his daughters. It is argued that the conduct of the plaintiff estops from pleading contrary to his own participation as a defendant in the suit filed vide O.S.No.23/2002 and these documents now marked as Exs. D33 to 36 cuts the case of the plaintiff at the root itself.
27. Therefore, it is argued that the new evidence placed on record in the from of Exs. D33 25 and 36 will play a vital role before this Court and they have to be taken into consideration while reassessing the entire evidence as contemplated under Section 96 of CPC.
28. It is argued that, if really partition had taken place in 1975 as asserted by the plaintiff, there could not have been any suit for partition and separate possession by the members of the family of Sangappa and that there could not have been any compromise between them, so that a comprehensive final decree could be passed on the basis of such compromise. It is argued that the very fact of a suit being filed against the present plaintiff - Mohan and his father by other members of the family of Sangappa in O.S.No.23/2002 would go to show that arrangement entered into between plaintiff and defendant in 1975 was a temporary arrangement for all practical purposes and that is vouchsafed by the contents of Ex.D14.
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29. Learned Counsel for the appellant has vehemently argued that the very fact of suit being filed on behalf of the plaintiff represented by his brother would go to show that plaintiff's father has purposely avoided to represent in the said suit knowing fully well that Ex.D14, the document to which he is a signatory would be confronted with Ex.D.14 and that he cannot deny its existence in any manner. Therefore, it is argued that Sangappa himself has set up his sons to file a suit on behalf of his minor son and therefore, this is a proxy litigation. It is in this regard, he has argued that the Court has to take note of the conduct of the parties, more particularly, when the equitable relief of declaration of title and permanent injunction will have to be granted under Sections 34 and 38 of the Specific Relief Act.
30. What is argued by the learned Counsel for the appellant is that, in plaintiff Mohan does not 27 make any averment unequivocally about the family arrangement that took place in 1975 except stating the incorporation of mutation entry in the year 1975. It is further argued that there is absolutely no reference about Ex.D14 in the plaint filed in O.S.No.36/1986 and this is a clear suppression of material facts from the purview of the Court. Therefore, it is argued that the plaintiff purposely got the plaint amended after the written statement was filed. It is argued that only after the defendant took up a specific plea of an arrangement entered into between the parties as per Ex.D14, plaintiff chose to file additional pleadings in order to get over the contents of Ex.D14.
31. Learned Counsel for the respondent-
plaintiff has vehemently argued that suit in O.S. No. 186/1992 (old O.S.No.45/1986) was filed on 17.07.1986 i.e., after the defendant put in his appearance in the trial Court in O.S.No.36/1986 and 28 hence it is argued that O.S.No.186/1992 is virtually a counter blast to the suit filed by the plaintiff Mohan. According to him, this conduct speaks volumes against the defendant.
32. It is argued that defendant Girimalla having specifically pleaded that the well exists in between the lands of the plaintiff and defendant, that too on the border line, cannot contend that he has a right to draw water from the well after coming to know that the well is situated well within the boundaries of the land of the plaintiff. He has argued that heavy reliance is placed upon Ex.D14 by the defendant and Ex.D14 also clearly speaks about the well being situated in survey No.413/1 of plaintiff. If really the defendant was in possession of Ex.D14, he could not have pleaded in the suit filed by him or in the written statement filed in O.S.No.36/1986 that well is in the boundary line of these two lines. Therefore, it is argued that, no credence could be attached to 29 Ex.D14. It is argued that Ex.D14 which is styled as agreement is not proved in accordance with law, more particularly, when the attestors have given contradictory versions. It is argued that the evidence of DW3 is to be treated as an interested testimony since he was raising hand loan from the defendant. According to the learned Counsel for the plaintiff, the evidence of DW4 will also have to be ignored as he goes to the extent of denying the very partition that took place in 1947-48, which is not the case of either of the parties to the suit. It is argued that, no adverse inference could be drawn in the light of non- examining plaintiff's father, who is stated to be an alleged signatory to Ex.D14. It is argued that nothing came in the way of defendant to have taken witness summons either to the father of the plaintiff or to his own father or to his uncles, who are stated to be the alleged signatories to Ex.D14. Hence it is argued that non-examination of plaintiff's father is 30 not at all fatal to the case of the plaintiff and this trivial aspect has been blown out of the proportion.
33. It is argued that Ex.D14 is neither a deed of partition nor a deed evidencing family arrangement. If it were to be treated as deed of partition, it necessarily required registration. If it were to be accepted as a family arrangement, nothing is forthcoming as to what happened to the partition that took place in 1975.
34. In this view of the matter, he has argued that, no credence could be attached to Ex.D14 so as to give any right to the defendant in regard to drawing of the water from the well situated in the land of the plaintiff. It is argued that the partition that took place in 1947-48 and in 1975 are acted upon by the parties and this is evident from the consequential incorporation of the names of the sharers in the revenue records on the basis of the joint report made to the revenue authorities. He has 31 argued that if Ex.D14 had really come into existence, it would have found place in subsequent documents like the revenue records or any other connected records. It is argued that, Ex.D14 cannot be considered as a document to bind the plaintiff in any manner. It is argued that, when partition took place in 1975 and when this land in survey No.413/1 was allotted to the plaintiff during his minority, his father could not have meddled with the property in his individual capacity and he should have represented as the guardian of his minor son. In the absence of any specific mention to that effect in Ex.D14, it doe s not bind the plaintiff in any manner and therefore, that cannot be enforced prejudicial to the interest of the plaintiff, who was minor at that point of time. It is argued that, when this land has fallen to the share of the plaintiff and when it has become the absolute property of the plaintiff, father cannot act as natural guardian, that too without obtaining 32 permission from the competent Court under the Guardians and Wards Act, in order to deal with the separate property of the minor. It is argued that the marking of documents as additional evidence vide Exs. D33 to D36 in this Court will not alter the case of the plaintiff. It is argued that certain properties had been acquired by Sangappa after the partition that took place in 1975 and that his daughters were not parties to the 1975 partition and therefore, the members thought it fit to have a comprehensive partition inclusive of the properties purchased of late. Hence it is argued that suit so filed subsequently in the year 2002 cannot be considered as one, which takes away the right of Mohan, more particularly, when this land bearing survey No.413/1 has continued to be his property even in the latest partition evidenced in the final decree.
35. It is argued that four properties in survey No.688/1 to 4 have been purchased of late i.e., in 33 1980-81, long after the partition that took place in 1975. It is argued that these four properties are found in the final decree passed by the Court in the year 2002.
36. It is argued that original defendant has virtually withdrawn from the suits by alienating the property in favour of second defendant and therefore, second defendant cannot derive any better title than the purchaser and that he cannot authentically speak about the affairs of the family of the plaintiff and defendant.
37. It is argued that the trial Court has considered the entire oral and documentary evidence in right perspective, more particularly, keeping in mind the report of the surveyor i.e., Court Commissioner who has submitted the report measuring the lands of both the parties and identifying the exact location of the well in question. It is argued that, taking into consideration the 34 totality of the case, the trial Court has rightly decreed the suit and injuncted the defendant from interfering with the peaceful possession and enjoyment of the land in survey No.413/1 and the well situated therein. It is argued that the trial Court has adopted right approach to the real state of affairs and therefore no good grounds are made out to interfere with the well considered factual findings given by the trial Court.
38. It is argued by the learned Counsel for the respondent herein that, for the first time Ex.D14 was introduced during the course of evidence without there being any basis in the plaint. Therefore, it is argued that this document cannot be considered to have been acted upon. It is further argued that important admissions elicited from the mouth of defendant examined as DW2 would falsify the case put forth by the defendant.
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39. After hearing the arguments and perusing the records of both the Courts following points arise for consideration:
1. Whether the disputed well in question is well within the boundaries of the land in sy. No. 413/1 of plaintif f-Mohan?
2. Whether the def endant-appellant Praveenchandra Ganiger has proved that the water in the disputed well had been drawn uninterruptedly by his vendor along with the plaintiff ?
3. Whether any interf erence is called f or by this Court and if so to wh at extent?
4. To wh at relief s and decree the parties are entitled to?
40. Sri Mohan Ganiger will be referred to as plaintiff and Sri Praveen Chandra Ganiger will be referred to as defendant in these cases.
36Reasons Point No.I
41. Entire extent of land in Sy. No. 413 of Ainapur village in Athani Taluk was 9 acres and 10 guntas before it was sub-divided as 413/1 and 413/2. The entire extent belonged to one Girimalla Sangappa Ganiger. The said Girimalla Sangappa Ganiger had five sons, namely (1) Siddappa, (2) Shivaputrappa (father of Girimalla, the lone defendant in O.S. No. 36/86), (3)Sangappa (father of plaintiff Mohan), (4) Maleyappa, and (5) Mallappa. The family of late Girimalla had sufficient landed properties in Ainapur village and during his lifetime, partition of the joint family properties had been effected by him in between his five sons in the year 1948. The fact of effecting a partition in 1948, allotting 4.00 acres of land in favour of Shivaputrappa and 5.16 acres in favour of Sangappa in sy. No. 413 is not in dispute. It is on the basis of 37 this partition, the extent of 4.00 acres of land allotted to Shivaputrappa and 5.16 acres in favour of Sangappa came to be separately numbered as Sy. No. 413/2 and 413/1 respectively and the same is not in dispute. On going through the pleadings of the parties and the oral and documentary evidence of the parties, it is evident that the dispute is only in regard to the exact location of the well and the right to draw the water from the well.
42. The fact that further partition took place in between Sangappa and his sons and Shivaputrappa and his sons respectively in 1975 is also not in serious dispute. Sri Praveenchandra Ganiger is the nephew of Siddappa Kallappa Ganiger who is examined as DW-1. Mr. Siddappa has testified on the basis of the power of attorney executed by Praveen in his favour vide Ex.D.1. Apart from being the power of attorney holder, D.W.1 is very much conversant with the affairs of the family of Sangappa and 38 Shivaputrappa. D.W.1 has specifically admitted the partition that was effected by Girimalla between his five sons in 1948 and land in Sy. No.413/2 having fallen to the share of Shivaputrappa and land in sy. No. 413/1 having fallen to the share of Sangappa and both of them having enjoyed the same thereafter. He has further admitted that a partition took place between Sangappa and his sons and land in sy. No. 413/1 having fallen to the share of Mohan, the plaintiff. He has further admitted that Sangappa was in lawful possession of land in sy. No. 413/1 till it fell to the share of his son Mohan, the plaintiff. He has further admitted that the well in sy. No. 413/1 is the disputed well and that the said well was dug in 1971-1972 and that Sangappa was using the said well till a partition took place between himself and his sons. He has further admitted that plaintiff Mohan has been using the said well after partition. He has further admitted that after the partition 39 between himself and his sons, Sangappa has no right over the well and Sangappa's sons have been living separately after the partition.
43. Relevant portion of the admissions elicited from the mouth of DW-1 probabalizes the existence of disputed well in sy. No. 413/1. DW-1 has admitted that a Surveyor had been appointed as a Court Commissioner to visit the land in sy. No. 413 to find out the exact location of the well in question. He has admitted about the visit of the Court Commissioner to the land in sy. No. 413 and the location of the well. Though D.W.1 has deposed that location of well as existing in sy. No. 413/1 as per the Commissioner report is not correct, objections have not been filed to the said report. As such, the report and the map have become evidence as per Order 26 Rule 10(2) of CPC. Admissions so culled out from the mouth of D.W.9 as found in paragraph no. 9 of his deposition throw light about the location of well in sy. No. 40 413/1 and its uninterrupted use by plaintiff Mohan and earlier to him by his father Sangappa.
44. English translation of the deposition of DW- 1 as found in paragraph no. 9 is extracted below:
"There is a bungalow in sy. No. 413/2.
That bungalow has been constructed by
Shivaputrappa. There are no separate wells in
sy. No. 413/1 and 413/2. There is no well in sy. No. 413/1; but one well is in the boundary line of sy. No. 413/1 and 413/2. Crops are grown in sy. No. 413/1 because of irrigation facility of this well and garde n crops are grown there. Court Commissioner had come to visit both the lands. He has submitted a report as per his visit. Location of well in sy. No. 413/1 as per the report submitted by him is not correct. Neither my vendor nor myself have submitted objections to the Commissioner's report. The dispute is about the existence of well in sy. No. 413/1. Disputed well was dug in 1971-1972. Sangappa was using this well till he entered into partition with his sons. After the partition Mohan has been using this well. It is true that after the partition Sangappa does nothave any 41 right over sy. No. 413/1 and the well situated therein. It is true that after the partition Sangappa and his sons have been living separately."
- - -
45. Case of Sri Praveen, the 3 r d plaintiff in connected O.S. No.186/1992 (old O.S. No. 45/1986) is that, a very old well was in existence in between the boundaries of sy. No. 413/1 and 413/2 and that equal right was given to Shivaputrappa and Sangappa to draw water from this well and that plaintiffs have made their land as bagayatu by using the water of this well. In order to clarify the exact location of the well a hand sketch is attached to the written statement filed by Sri Girimalla, the defendant in O.S. No. 36/1986 and as such it has become part and parcel of the written statement of Girimalla filed on 09.09.1986. The location of the disputed well is shown as though it exists in the boundary line of sy. No. 413/1 and 413/2 on the Northern side.
42
46. Defendant Girimalla and Sri Praveenchandra, the 3rd plaintiff in O.S. No.186/1992 have placed much reliance on Ex.D.14 to contend that Shivaputrappa had common right to draw water from the well sitauted in sy. No. 413/1. Ex.D.14 is stated to be an arrangement entered into between Sangappa, father of plaintiff Mohan, Shivaputrappa and his brothers for better enjoyment of their respective lands in respect of which partition had already taken place. This document styled as " D¥ï¸Ávï ªÁnß ¨ÉÃ¹ä ¥ÀvÀæ" (Aapsaaten Vatani Besmi Patra) is dated 29.11.1980. In page no. 3 of Ex.D.14 it is mentioned that a well exists in sy. No. 413/1 and that party no. 2-Shivaputrappa and party no. 3- Sangappa have right and that both of them have to bear the electricity charges based on their hassa (shares).
47. From a plain reading of this portion of Ex.D14, it is evident that the plaintiffs in O.S.No.186/1992 i.e., Girimalla, 43 his father Shivaputrappa and subsequent purchaser Praveen Chandra have admitted the existence of the well in Sy.No.413/1. Taluk Surveyor of Athani, who is a competent surveyor had been appointed as Court Commissioner to visit the land in Sy.No.413 and to submit a report about the existence of well and to elucidate matter in question. After visiting the plot and surveying the lands in Sy.No.413/1 and 2, Commissioner chose to submit a report on the basis of his visit to spot on 12.08.1989. The location of the well and connected open space used for the well is indicated in the letters 'ABCD' in his sketch cum report which is not objected to by the parties. In the detailed report cum sketch all the important aspects noticed by him after conducting a full fledged survey of both the lands, have been depicted. As already discussed, this has become an undisputed evidence under Order 26 Rule 10(2) of CPC though not got marked as an exhibit. Hence there is no legal or factual inhibition to look into the report cum sketch submitted by the Commissioner as it throws a great light on the subject. 44
48. Land in Sy.No.413 is divided South North into two parts and the eastern part measuring 4.00 acres is land in Sy.No.413/2. Water pipeline runs in Sy.No.413/1 upto point B as shown in the sketch and the remaining pipeline runs in between these land upto the end of Sy.No.413/1 and 2 upto the point indicated in letter 'E'. The space where the well exists is indicated in letters ABCD measuring 27 meters East West and 27 meters north south. Actually this space is well within the land in Sy.No.413/1 and it is clearly away from the boundary line of Sy.No.413/2.
49. Having not objected to the report cum sketch submitted by a competent surveyor appointed by the Court and Ex.D14 itself depicting the existence of well in Sy.No.413/1, it is ununderstandable as to how plaintiffs in O.S.No.186/92, could plead that well is in the boundary line of Sy.No.413/1 and 413/2. The written statement filed in O.S.No.36/1986 is identical to the plaint filed in O.S.No.186/1992 (Old No.45/86). If really plaintiffs in O.S.No.186/1992 were really in possession of Ex.D14 a 45 Besmi Patra of 1980, they could not have pleaded that well exists in between these two lands and therefore they have common right to draw water from this well. Either Ex.D.14 contradicts with the contents of written statement filed in O.S. No. 36/1986 and the plaint averments made in O.S. No. 404/1989 or much reliance cannot be attached to Ex.D.14. But one thing is evident that admissions culled out from the mouth of DW-1 as found in paragraph no.9 of his deposition coupled with the identification of the disputed well made by the Court Commissioner unequivocally prove that the disputed well is well within the land in sy. No. 413/1 and not in the boundaryline of sy. No. 413/1 and 413/2 as averred in the written statement filed in O.S. No. 36/1986 and as averred in the plaint of O.S. No. 186/1992 (old no. 45/1986). Hence it is to be held with certainty that the disputed well is in sy. No. 413/1 and that Sri Mohan-plaintiff of O.S. No. 36/1986 is the absolute owner of the well in question. Accordingly, point no.1 is answered in the affirmative. 46 Point No.2:
50. Case of plaintiffs in O.S. No.186/1992 (old O.S. No. 45/1986) is that they have had been using this well to draw water in order to irrigate their land in sy. No. 413/2. Of course, Girimalla and their father Shivaputra chose to file a suit in O.S. No. 45/1986 after the receipt of summons issued to them in O.S. No.36/1986 filed by Mohan. In fact, there was no necessity to have filed a separate suit since they were entitled to take up suitable defence in the very suit filed against them by Mohan, by filing written statement. Even otherwise, the written statement in O.S. No. 36/1986 was filed after suit was filed by them in O.S. No. 45/1986 which was subsequently numbered as O.S. No. 186/1992. What is averred by the defendants in O.S. No. 36/1986 is that there existed a very old well in sy. No. 413 and Shivaputrappa and Sangappa had been using the water of this well in common. Whether the well really 47 existed in 1948 when partition took place between the five sons of Girimalla or whether it came into existence in 1971-1972 will have to be looked into.
51. Though number of witnesses have been examined on behalf of Praveen chandra, no decisive evidence is placed on record to prove that the well in question was quite old and it existed even in 1948 and that the entire land in old sy. No. 413 was being irrigated with the help of the water of the well. An attempt is made, while cross-examining P.W.1 Sri Adiveppa, the elder brother of Mohan to prove that the well existed even in 1948 when partition was effected by Girimalla between his five sons in 1948. But PW-1 has emphatically denied the suggestion put to him. On the other hand, PW-1 has deposed that Sangappa, the father of Mohan, the plaintiff got the well dug on the Northern side of sy. No. 413/1 in 1971-1972. He has further deposed that pipeline was 48 fixed and water was being drawn from the well and flown through this pipeline. This fact is probabalized by the admission culled out from the mouth of DW-1 Siddappa, the power of attorney holder of Praveen Chandra as found in paragraph no.9 of his deposition. Relevant admission culled out from the mouth of DW-1 is as follows:
" Neither myself nor my vendors have submitted any objections to the Court Commissioner's report: Dispute is in regard to the well in sy. No. 413/1. The disputed well was got dug in the year 1971-1972. Sangappa was using this well till he partitioned the properties with his sons. Af ter the partition Mohan has been using this well."
52. From this admission and contents of the report and the sketch submitted by the Commissioner it is evident that well is in sy. No. 413/1 and plaintiff-Mohan has had been the absolute owner of 49 this well. Now an attempt is to be made to know as to whether Sangappa, the father of the plaintiff had permitted his brother Shivaputrappa to install pump in order to draw water to his land in sy. No. 413/2 from this well. A very important documentary evidence is placed on record by Shivaputrappa, his son Girimalla and purchaser Praveen Chandra. It is an endorsement given by the Assistant Executive Engineer, Karnataka Electricity Board and the same is dated 02.09.1986. This document is marked as Ex.D.18. The exact contents of Ex.D.18 are extracted below:-
" T o Sri Shiv apu trappa G ir imall app a Gan iger Sir, Sub.: Regarding details of I.P.R.R. No. AN IP177. Ref .: your applic ation dated 02.09.1986. T he details of the I.P. install atif on be aring R.R. No. ANIP177 is as under as per the records of this off ice.
1. Name of Custo mer-Sr i Shiv apu trappa Gir imall app a Ganiger 2. R.R. No. - A.N. I.P. 177
3. Date of service - 12.02.1971
4. Connected load - 10 HP
5. Motor details as - Co mp any Jyoti 10 HP f urnished on ----- 50 N No.100413 A. 275 50
6. Dues as on 4/86 - Rs.2704.70 (Sd) A.E.E. - K.E.B. 2/9/86"
---
53. Apart from this, the plaintiffs of O.S. No. 45/1986 have filed bills issued by K.E.B. and they are marked as Ex.D.20 and D.21, and they are dated 29.04.1985 for Rs.354/- and 29.10.1985 for Rs.257.00. They are in respect of I.P. Set standing in the name of Girimalla son of Shivaputrappa. Rs.2,704.70 which was due for the month of April 1986 as per the particulars furnished on 02.09.1986 vide Ex.D.18 is shown in the bill marked as Ex.D.19. Ex.D.22 is the receipt issued by the K.E.B. for having collected Rs.354.25 on 07.05.1985, Ex.D.23 for having collected Rs.45/- on 21.11.1985, Ex.D.24 for having collected Rs.132/- on 20.11.1985, Ex.D.25 for collecting for Rs.250/- on 21.11.1985, Ex.D.26 for having collected Rs.2.00 on 09.11.1985 and Ex.D.27 for collecting Rs.125/- on 20.11.1985. The authenticity of the endorsement issued by 51 K.E.B. on 02.09.1986 and the bills and receipts marked as Ex.D.19 to D.27 is not seriously disputed.
54. It is evident that there is only one well in sy. No.
413. Ex.D.18 to 27 pertain to the irrigation pumpset of 10 horse power installed near the well in question by Shivaputrappa. Electricity connection had been obtained from Karnataka Electricity Board by Shivaputrappa Ganiger in 1971 itself and this is evident from Ex.D.13 the particulars furnished by K.E.B. authorities. Apart from that, receipts for having paid electricity charges are also produced. What is argued before this Court by the learned counsel for the plaintiff is that Shivaputrappa had furnished false particulars while obtaining electricity connection to I.P. Set and that he had represented to K.E.B. that the well existed in his land bearing sy. No. 413/2. In this regard the evidence of PW-1 Sri Adiveshappa is relied upon to contend that defendants have been unauthorizedly drawing water from the motor installed. The relevant portion of the deposition of PW-1 52 recorded on 06.11.1996 and found in paragraph no.20 is as follows:
"The plaintiffs of O.S. No. 45/1986 have been illegally using the pump installed in the well. It is false to suggest that neither we nor our elders have obstructed for the use."
---
55. If really Shivaputrappa had installed the pumpset after the institution of the suit, they could have filed necessary application in the Court about the illegal act. If really the particulars found vide Ex.D.18 are incorrect, Mohan, the plaintiff could have taken steps to falsify the same by examining the authorities of K.E.B. The particulars so furnished by the K.E.B. Authorities are based on records maintained by them in the ordinary and usual course of their activities connected with the supply of power. The measurements of the space indicated in letters ABCD in the sketch submitted by the Commissioner speaks about the space used for installing the I.P. Sets and the minimum infrastructure required for installation and maintenance of the I.P. Set. Therefore, the assertion of PW-1 as found in 53 paragraph no.2 of his deposition that since two years the plaintiffs of O.S. No. 45/1986 have been using the water of the well through pumpset appears to be palpably false.
56. The next question that arises is as to whether Sri Shivaputrappa had intimated to K.E.B. Authorities, at the time of availing electricity connection to I.P. Set, that the well existed in sy. No. 413/2. Ex.D.6 is the order passed by K.E.B. authorities of Ugar-Khurd on 21.11.1983 intimating Girimalla Shivaputrappa Ganiger, the defendant of O.S.No. 45/1986 that power supply would be sanctioned to I.P. Set of 5 Horse Power installed in Ainapur. The number of I.P. Set is ANIP552. Ex.D.7 is the monthly reading card dated 28.11.1983 issued by K.E.B. to record the monthly meter reading in order to know the monthly consumption of electricity. Ex.D.8 is the bill issued by K.E.B. for the month of March 1986 in April 1986 relating to I.P. Set 552 for Rs.190.00 On reading the contents of Ex.D.18 and Ex.D.6 to 8, it is evident that well was dug in 1971 and electricity connection had been taken in 1971 for one I.P. Set of 10 54 Horsepower in the name of Shivaputrappa and subsequently electricity connection was taken to I.P. Set of 5 Horse Power in 1983 by Girimalla son of Shivaputrappa. Of course Ex.D.6 or Ex.D.18 do not disclose the survey number in which the well exists. But the evidence that the person intending to obtain power connection for the I.P. Set must mention the location of the well and in this regard Girimalla had informed K.E.B. Authorities that well existed in sy. No. 413/2. This is evident from the admission elicited from the mouth of DW-1 on 04.11.1998 in paragraph no. 14 of his deposition and the same is as follows:
"We are expected to inform the K.E.B. authorities about the survey number in which the well exists. Now I am seeing Ex.D.5 and in it sy. No. 413/2, well is mentioned. Whole well is not in sy. No. 413/2. There is no reference in Ex.D.5 that the well is in between sy. No. 413/1 and 413/2. Electricity connection is obtained stating that well is in sy. No. 413/2. It is false to suggest that we 55 have concocted a document by falsely representing that well is in sy. No. 413/2."
57. Even if one were to accept that Shivaputrappa as well as his son had falsely represented to K.E.B. Authorities, at the time of obtaining electricity connection to I.P. Set of 10 HP in 1971 and I.P. Set of 5 HP in 1983 respectively, it is certain that neither plaintiff nor his father had objected to the installation of I.P. Set near the well in question. It cannot be said that Shivaputrappa or his son Girimalla had made a representation that well existed in sy. No. 413/2 under a bonafide impression. The reasonable inference that can be drawn from the circumstances mentioned above and the finding on point no.1 is that Sangappa had permitted his brother Shivaputrappa to install a pumpset to the well of his land in sy. No. 413/1 in 1971 in order to irrigate land in sy. no. 413/2 and similarly plaintiff had permitted Girimalla, the first plaintiff in O.S. No. 45/1986 to install a pumpset of 5 HP in 1983. Therefore, installation of pumpset in 1971 by Shivaputrappa and in 1983 by Girimalla cannot be construed 56 as though they have equal right to draw water from a well absolutely owned by Mohan in his land bearing sy. No. 413/1.
58. What is argued before this Court by learned counsel Sri V.P.Kulakarni for the appellants is that Ex.D.14 is proved and therefore the appellants have common right to draw water from the well though situated in sy. No. 413/1. If really Ex.D.14 would have come into existence and acted upon a document to claim common right of enjoyment of the well situated well within the land bearing sy. No. 413/1 of Mohan, the tone and tenor of the defence spelt out in the written statement filed in O.S. No. 36/1986 or the contents of plaint filed in O.S. No. 45/1986 would have been altogether different. If really Ex.D.14 had come into existence as sought to be projected while leading evidence by DW-1 or cross examining PW-1, it would not have been pleaded by the defendant in O.S.No.36/1986 that well existed in between the boundary line of sy. No. 413/1 and 2. On the other hand, it would have been pleaded that well exists in the land of 57 plaintiff Mohan but both of them have common right to draw water. Apart from this, even in the sale deed executed by Girimalla, 1st plaintiff of O.S. No. 45/1986 in favour of 3rd plaintiff Praveen Chandrashekar on 02.12.1992 vide registered sale deed marked as Ex.D.28 it is mentioned that a well exists in sy. No. 413/2 and that it is a common well and that both can take water in the pipeline. Therefore, the very defence found in the written statement filed in O.S. No. 36/1986 is contrary to the contents of Ex.D.14 in which it is mentioned that well exists in sy. No. 413/1 and both Sangappa and Shivaputrappa have common right of enjoyment.
59. Ex.D.14 is sought to be proved by examining DW3- Sri Eshwar, a resident of Ainapur village. He is stated to be an attestor to Ex.D.14. He has gone to the extent of denying the suggestion that all the five sons of late Girimalla started enjoying their respective shares of properties separately after 1948 partition. He has even gone to the extent of denying the partition that took place between Sangappa and his sons in 58 1975 under which land in sy. No. 413/1 fell to the share of Mohan. On the other hand, Girimalla, the 1st plaintiff in O.S. No. 45/1986 examined as DW2 has unequivocally admitted the fact of partition that took place in 1975 between Sangappa and his sons in his cross-examination done on 08.06.1999, as found in page no. 5 of his deposition. The said admission is extracted below:-
"In the partition of 1975 between Sangappa and his sons, some properties had fallen to Sangappa's share and some properties to his sons. They have been enjoying their respective shares as per partition. After the partition between Sangappa and his sons, Sangappa did not have any right in sy. No. 413/1. Mohan has become the absolute owner of the same. As on the date of filing of suit Mohan was minor. His elder brother Adiveppa has filed suit as guardian on behalf of Mohan. Adiveppa has been looking after as the guardian of his minor brother Mohan."59
60. Mohan was minor, when land in sy. No. 413/1 fell to his share and Adiveppa examined as PW-1 was looking after Mohan as his guardian. When Mohan was minor even in 1986 when the suit was filed, it is un-understandable as to how Sangappa, father of Mohan could be signatory to Ex.D.14 stating that Sangappa and Shivaputrappa have common right in the well. The best person who could have been the signatory was Adiveppa and not Sangappa though he was the father. Even otherwise, Sri Sangappa has not put his signature to Ex.D.14 as the guardian of his son Mohan. Even otherwise, much credence cannot be attached to the testimony of DW-4 as Ex.D.14 is stated to have been written by an Advocate. The name of the scribe is not forthcoming. He is a staunch follower of Sri Siddappa, examined as D.W.1.
61. One Sri Erasangappa, resident of Inapur is examined as DW-3 to vouchsafe Ex.D.14. He is also an attestor to Ex.D.14. He goes to the extent of deposing that the well was dug prior to 1948 which is contrary to the admission elicited from the mouth of DW-1. He is a highly 60 interested witness because he was availing financial assistance from Shivaputrappa without paying any interest and that Shivaputrappa had helped him in starting a provisions store and that he has lot of affection towards the children of Shivaputrappa. Even otherwise, the best persons who could have been examined to prove Ex.D.14 were Sangappa or Shivaputrappa or Siddappa or Mallappa. None of them have been examined.
62. What is argued before this Court by Sri V.P. Kulakarni for appellants is that the arrangement that took place in 1975 between Sangappa and his sons was only a family arrangement but not an out and out partition. In this regard he has relied upon Ex.D.33, the certified copies of plaint filed in O.S. No. 23/02 by Adiveppa son of Sangappa against his father Sangappa, mother Parvathi and his brothers and sisters including of Mohan. The said suit was for partition and separate possession of all the family properties inclusive of land in sy. No. 413/1. Ex.D.34 is the copy of the compromise petition filed by the parties in the 61 said case and Ex.D.34 is the copy of the final decree drawn on the basis of Ex.D.34. Even in this suit land in sy. No. 413/1 has fallen to the share of Mohan only. The subsequent arrangement that took place between Sangappa and his sons and daughters will have no bearing in so far as appellants are concerned, more particularly when DW-1 has admitted that land in sy. No. 413/1 fell to the share of Mohan in 1975 and that he was enjoying this land absolutely.
63. But on reassessing the entire evidence it is evident that though Mohan has become the absolute owner of land in sy. No. 413/1 and the well situated therein, his father had allowed Shivaputrappa to install an I.P. Set to draw water from this well to his land in sy. No. 413/2 way back in 1971. Similarly, Girimalla, the 1st plaintiff in O.S. No. 45/1986 was also allowed to install a 5 HP I.P. set in 1983 to his well for irrigating the land in sy. No. 413/2. Sufficient evidence is placed on record that land in sy. No. 413/2 has become a wet land because of irrigation facility available due to the supply of water from the well situated in sy. No. 413/1. As a result 62 of the same, Shivaputrappa was growing sugarcane from 1971 to 1975 and later on Girimalla was growing sugarcane and now Praveenchandra has been growing sugarcane in Sy. No. 413/2. Therefore, it can be held with certainty that plaintiffs in O.S. No. 45/1986 do not have common right on the well but they have been permitted to draw water for better enjoyment of land in sy. No. 413/2. It appears that all was well between the family members of Sangappa and Shivaputrappa from 1971 to 1986 but some differences cropped between them in early part of 1986 as a result of which suit was filed in July 1986 vide O.S. No. 36/1986 and O.S. No. 45/1986 being filed as a counter blast.
64. Hence point no.2 is answered in the affirmative holding that appellant-Praveen Chandra has been able to prove that his vendor Girimalla had been drawing water from the well in sy. No. 413/1 uninterruptedly along with the plaintiff and his father frofm 1971, i.e., the year in which the well was dug by Sri Sangappa.
63Point No. 3:
65. It has come in the evidence of Girumalla that he has been drawing water by installing 5 HP IP Set and prior to that, his father Shivaputrappa was drawing water through a I.P. set of 10 HP. A Pipeline measuring about 3000 ft. being laid in the suit land as well as in the boundary of sy. No. 413/1 and 413/2. As a result of the same defendant has also been using the water to irrigate his land and thereby growing sugarcane. In the light of Mohan being declared as the absolute owner of the entire land in sy. No. 413/1 and the well situated therein, if defendant is injuncted from drawing water his entire extent of 4 acres of land will become a dry land and the third plaintiff Praveenchandra will be deprived of growing sugarcane and supplying it to the nearby Ugargod sugar factory. Apart from this sugarcane is 11 month duration crop and requires adequate water supply for almost 10 months in a year. Since Praveenchandra and his purchasers in question have been permitted to draw water right from 1971, it is not advisable to injunct Praveenchandra 64 from drawing water through his pumpset from the well in question. Anyhow Praveenchandra and his purchasers in question have failed to prove that they have equal right over the well in question. Hard realities in this case is that sugar cane crop is being grown in sy. No. 413/2 by making use of the water of the well in question. On the other hand, it would be just and reasonable to impose certain conditions on Praveenchandra in the matter of using the water of the well.
66. Praveenchandra has 4 acres of land and he has been growing sugarcane crop from quite a long time. Yield of sugarcane per acre ranges from 30 tonnes to 45 tonnes a year. Even if the lowest yield of 30 tonnes per acre is taken, the total yield of 4 acres would be 120 tones. At present, the support price which is being given by the sugar factories to the sugarcane growers is Rs.2,000/- per tonne. The gross income per year from 4 acres would be Rs.2,40,000/-. Out of this, a minimum of 40% of the gross income will have to be deducted towards cultivation expenses and 40% would be Rs.96,000/-. If Rs.96,000/- is deducted from the gross 65 annual income of Rs.2,40,000/-, the net income would be Rs.1,44,000/- per year. The plaintiff is expected to maintain the pipeline for the flow of water in order to protect his land and the land of Praveenchandra. In view of the plaintiff being declared as the absolute owner of the well in question, a reasonable amount will have to be paid by Praveenchandra as fee for maintenance of the pipeline and the water that would be used by him for irrigating his land in sy. No. 413/2. In this regard 20% of the net annual income of Rs.1,44,000/- would be the just and reasonable amount to be paid as annual fee by Praveenchandra to the plaintiff. Then a sum of Rs.28,800/- would be the annual fee to be paid by Praveenchandra, third plaintiff in O.S.No.45/1986 to Mohan, plaintiff in O.S. No. 36/1986. This amount of Rs.28,800/- could be rounded of to Rs.29,000/-.
67. This annual fee of Rs.29,000/- will have to be deposited on or before 31st of March every year so that Praveenchandra can make use of the water for irrigating his 66 land. In respect of the annual fee to be paid for the year 2014-15 Sri Praveenchandra will have to deposit the same on or before 26.04.2014 in the Court of Sr. Civil Judge at Athani and Mohan, plaintiff, is at liberty to draw the same. The Court of Sr. Civil Judge shall deduct the proportionate Court fee on Rs.29,000/- that would be deposited on or before 26.04.2014 for the year 2014-2015. But no Court fee shall be deducted in future as and when the annual fee is deposited.
68. In case Praveenchandra does not comply with the conditions, plaintiff-Mohan will be at liberty to stop supply of water to the land of Praveenchandra. This equitable order is absolutely required in the present case keeping in mind the absolute ownership of the well by Mohan and the permission being granted by Mohan to Praveenchandra for drawing water from the well to irrigate his land.
69. It is also made clear that if any question arises as to the maintenance of water pipeline or any matter connected with the drawing up of water, parties will be at liberty to approach the Court of Sr. Civil Judge, Athani in O.S. 67 No.36/1986 and O.S.No.186/1992 and the learned Judge would be at liberty to pass appropriate orders.
70. Though the learned Judge has come to the conclusion that plaintiff-Mohan has proved his title to the well in question. The learned Judge not kept in mind the hardship that would be caused to Praveenchandra in obstructing supply of water to his land in Sy. No. 413/2. It is in this regard a modification is required by means of an equitable order. Therefore, both the appeals will have to be allowed in part. Hence interference is called for to this extent. Accordingly point no. 3 is answered.
Point No. 4:
71. In view of the findings on point nos.1 to 3 both the appeals will have to be allowed by modifying the judgment and decree passed by the trial Court.
ORDER Appeal filed in R.F.A. No. 664/2000 c/w R.A. No. 44/2000 are allowed in part. Mohan, the plaintiff in O.S. No. 36/86 which was pending on the file of the Civil Judge (Sr. 68 Dn.), Athani, is declared as the absolute owner of land in sy. No. 413/1 and well situated therein. Third plaintiff in O.S. Nof. 45/1986 (New No.186/1992) Praveenchandra is permitted to draw water from the well in question and existing pipeline to irrigate his land subject to payment of Rs.29,000/- (Rupees twenty nine thousand only) as fee per annum without fail and he shall deposit the same on or before 31st of March every year without fail and in such an event Mohan will be entitled to draw the same. Insofar as the annual fee of Rs.29,000/- for the year 2014-15 is concerned, it shall be deposited on or before 26.04.2014 before the Court of Senior Civil Judge at Athani with an intimation well in advance to the plaintiff-Mohan. In the event of deposit of the sum of Rs.29,000/-, the Court of Sr. Civil Judge, shall recover proportionate court fee on Rs.29,000/- and the balance amount be paid to Mohan. Insofar as the annual fee that would be deposited for the succeeding years, no Court fee shall be deducted.
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It is made clear that the parties can approach the learned Sr. Civil Judge dealing with O.S. No.36/1986 in case of any clarification required or any order to be passed in connection with the maintenance of the pipeline and drawing of water from the well. Praveenchandra shall draw water through his own IP Set not exceeding 10 HP and shall maintain the area and the shed in good stead without causing any obstruction to the plaintiff-Mohan. Similarly, the plaintiff-Mohan shall also facilitate supply of water from the well to the land of Praveenchandra in sy. No. 413/2 throughout. The electricity charges in respect of IP set of Praveenchandra shall be borne by Praveenchandra himself. There shall be upward revision of 5% (five) in annual fee once in three years and this revision shall commence for the year 2017-2018.
In view of the facts and circumstances of the case, there is no order as to costs.
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Keep a copy of this judgment in R.A.No.44/2000.
Sd/-
JUDGE.
MBS/GAB/BVV