Sri. B. Shankaranarayana Bhat vs Sri. B. Subramanya Bhat on 23 July, 2020

[Cites 13, Cited by 0]

Karnataka High Court

Sri. B. Shankaranarayana Bhat vs Sri. B. Subramanya Bhat on 23 July, 2020

Equivalent citations: AIRONLINE 2020 KAR 1787, 2021 (1) AKR 83

Bench: S.R.Krishna Kumar

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23rd DAY OF JULY, 2020

                          BEFORE

    THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

  REGULAR SECOND APPEAL No. 1933/2006 (DEC/INJ)

BETWEEN:

SRI. B. SHANKARANARAYANA BHAT
S/O LATE SUBRAYA BHAT
AGE 75 YEARS, R/AT BAINKRODU HOUSE
PANAJE VILLAGE AND POST - 574 259
PUTTUR TALUK, D.K.DISTRICT.
                                                ...APPELLANT
(BY SRI. G.LAKSHMEESH RAO, ADVOCATE)

AND:

SRI. B.SUBRAMANYA BHAT
S/O LATE VENKATARAMANA BHAT
AGE 56 YEARS, R/AT BAINKRODU HOUSE
PANAJE VILLAGE AND POST - 574 259
PUTTUR TALUK
DAKSHINA KANNADA DISTRICT.
                                              ...RESPONDENT

(BY SRI.N. SHANKARANARAYANA BHAT, ADVOCATE)

       THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT & DECREE DATED: 28.02.2006 PASSED
IN R.A. NO. 28/1995 ON THE FILE OF THE I ADDL. DISTRICT JUDGE,
D.K., MMANGALORE PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED: 06.09.1995
PASSED IN OS NO. 120/1989 ON THE FILE OF THE CIVIL JUDGE,
PUTTUR D.K.

       THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
24.06.2020 COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT'
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
                                 2




                          JUDGMENT

This Second Appeal preferred by the appellant - defendant is directed against the impugned judgment and decree dated 28.02.2006 passed by the first appellate court in R.A.No.28/1995, whereby the appellate court partly allowed the appeal filed by the respondent-plaintiff.

2. For the purpose of convenience, the parties are referred to by their respective ranks before the trial court.

3. Brief facts leading to the case are as under:-

(a) The respondent - plaintiff instituted a suit against the appellant- defendant in O.S.No.120/1989 for declaration, permanent injunction, mandatory injunction, damages etc., in respect of his alleged easementary rights over the property of the defendant.

(b) It was the specific contention of the plaintiff that the defendant is the younger brother of the plaintiff's father late Venkataramana Bhat. By a registered partition deed dated 24.04.1967, the joint family properties of the plaintiff's father, the defendant and their brothers were divided and partitioned 3 among the family members. Under the said partition, lands bearing Sy.No.201/1 measuring 1 acre 62 cents, Sy.No.201/2A measuring 70 cents and Sy.No.201/2B measuring 1 acre 45 cents situated at Panaje village, Puttur Taluk, Dakshina Kannada district, fell to the share of the plaintiff's father. In the schedule to the plaint, the plaintiff has described these lands as plaint 'A' schedule property.

Similarly, lands bearing Sy.No.199/1 measuring 2 acres 57 cents and Sy.No.199/3 measuring 1 acre 13 cents were allotted to the defendant under the said partition and the same have been described as plaint 'B' schedule property. The 'A' schedule property is situated adjacent to the 'B' schedule property on its western side.

(c) The plaintiff alleged that his father died in the year 1968, after which the plaintiff as the yajaman of his family consisting of his younger brothers started enjoying the 'A' schedule properties and other properties allotted to his father under the said partition. Their residential house is situated in Sy.No.201/2B of the 'A' schedule properties and the remaining portion of the said lands consist of areca gardens which are 4 more than 35 years old in addition to pepper, banana, cocoa and coconut trees existing in the lands. Further, in Sy.No.201/1 and Sy.No.201/2A, paddy fields due to exist with old water storage tank with springs also existing in Sy.No.201/1.

(d) The plaintiff alleged that the aforesaid paddy fields were subsequently converted into areca garden due to which huge quantity of water used to stagnate during rainy seasons. Further, water springs were also in existence in the said areca garden. Under these circumstances, a well defined drainage channel (ujru khani) measuring about 1 feet wide and 3 feet in depth was existing for the purpose of discharging excess rain water, spring water and other excess water from the areca garden in Sy.No.201/1, Sy.No.201/2A and Sy.No.201/2B. It is alleged that the said drainage channel started from the south western corner of Sy.No.201/2A and passed through Sy.No.201/1 of the plaintiff and thereafter, the said drainage channel continued in Sy.No.199/1 and Sy.No.199/3 of the defendant and continued even thereafter through the properties of one C.H.Govinda Bhat and others and finally 5 reached the stream. The said drainage channel (ujru Khani) has been in existence from the time the paddy fields of the plaintiff and defendant got converted into areca garden. The 'B' schedule property of the defendant also consist of an old areca garden which was also earlier a paddy field.

(e) At paragraph-4 of the plaint, the plaintiff contended that along the aforesaid drainage channel which is situated on the western side of Sy.No.199/1 of the defendant and Sy.No.201/1 of the plaintiff, there is also a pathway measuring 3 feet wide, which was also being used from time immemorial by the plaintiff and his men ever since the date of partition as of right, peaceably, openly and continuously without any objection and obstruction by the defendant resulting in the plaintiff perfecting his right over the said pathway to go from his house to Panaje - Puttur road.

(f) At paragraph-5 of the plaint, it is contended that apart from taking possession of the 'B' schedule properties along with other properties in the aforesaid partition dated 24.04.1967, defendant was also managing the 'A' schedule properties by residing in a house at palla, which is at a 6 distance of about 2 Kms from the 'B' schedule properties. In 1983, the defendant started construction of a new house and completed it in the year 1986, which is near the 'B' schedule property. During the period of construction, defendant used to borrow monies from the plaintiff and his younger brother who used to deposit the same in the account of the defendant in CA Bank at Panaje. It is alleged that from 07.11.1983 to 05.05.1986, plaintiff and his younger brother have advanced Rs.1,19,500/- to the defendant who failed to repay the same despite assuring them in this regard.

(g) At paragraph-6 of the plaint, the plaintiff alleged that till the plaintiff and his brother did not demand the defendant for repayment of the aforesaid loan, the defendant permitted the excess rain water, spring water and other water from the 'A' schedule properties to flow through the drainage channel in the 'B' schedule properties without causing any obstruction. However, in the first week of June 1998, on account of the enmity between the plaintiff and the defendant, the defendant obstructed the free flow of the excess water from the 'A' schedule properties in the aforesaid drainage channel on the 7 western side of Sy.No.199/1 by dumping earth to an extent of 12 feet in length. On account of which, the free flow of water in the said drainage channel from the 'A' schedule properties was stocked. Consequent upon the said obstruction caused by the defendant, water in the areca garden of the plaintiff in Sy.No.201/1, Sy.No.201/2A began to stagnate thereby causing damage to the said portion of the garden.

(h) The plaintiff has stated that proceedings before revenue authorities and disputes between the jurisdictional police between the plaintiff and defendant ultimately culminated before this Court which relegated the parties to the competent civil court and accordingly, the plaintiff filed the present suit before the trial court.

(i) At paragraph-7 of the plaint, the plaintiff has given details with regard to the loss suffered by him on account of the damages caused to his areca garden due to the drainage channel being blocked by the defendant. The loss caused to the plaintiff in this regard has been quantified as Rs.51,000/- and has been described as plaint 'C' schedule property. 8

(j) At paragraph-8 of the plaint, the plaintiff has alleged that the aforesaid drainage channel situated in both 'A' and 'B' schedule properties has been in existence for more than 35 years and is being used to drain the rain water, spring water and other excess water for effective cultivation and enjoyment of 'A' schedule property. It is alleged that the said user of the drainage channel for the aforesaid purpose is being done by the plaintiff and his predecessors openly, peaceably, continuously and as of right and without any objection or obstruction by the defendant or any one else since the date of the partition dated 24.04.1967 till the first week of June 1988 when the defendant caused obstruction to the same. It is therefore stated that the plaintiff has perfected his title by prescription under Section 15 of the Indian Easements Act, 1882 (for short 'the Act') over the user of the drainage channel throughout the flow of the water course including the 'B' schedule properties. As such, the defendant has no right to interfere with the user of the drainage channel by the plaintiff for the purpose of draining the various types of water and the said obstruction is liable to be removed, particularly when no 9 loss or hardship would be caused to the defendant, if the plaintiff is permitted to discharge water through the said channel.

(k) At paragraph-9 of the plaint, it is stated that though there is a stream on the northern side of Sy.No.201/1 belonging to the plaintiff, since the said stream is at a higher level, it is not possible for the plaintiff to discharge the said water to the said stream. Along with the plaint, plaintiff produced a plan prepared by revenue authorities which indicates not only the 'A' and 'B' schedule properties but also the filled up portion of the said drainage channel which is delineated by the letters 'C - D' in the said sketch.

(l) Thus contending that the cause of action for the suit arose in the first week of June 1988 when the defendant obstructed the flow of water in the said CD channel which culminated on the date of disposal of criminal revision petition No.181/1989 by this Court and also subsequently, the plaintiff filed the suit seeking various reliefs which can be summarized as hereunder:

a) For declaration that the plaintiff had perfected his easementary right and title over the CD drainage channel existing on the A and B schedule properties to lead/discharge excess water from A schedule property without objection /obstruction from the defendant or anyone claiming through or under him;

b) For consequential permanent prohibitory injunction restraining defendant, his men etc., from obstructing the free flow of water from the A schedule property through the CD drainage channel;

c) For mandatory injunction directing removal of the obstruction caused by the defendant to the CD drainage channel and restore it to its original condition;

d) Directing the defendant to pay damages in a sum of Rs.51,000/- to the plaintiff towards the loss sustained by him as described in the plaint 'C' schedule;

e) Directing the defendant to pay costs of the suit to the plaintiff along with future loss and damage caused to the plaintiff on account of the defendant and such further relief's that court deems fit to grant in the circumstances of the case.

4. The defendant filed his written statement interalia contending that the suit was not maintainable, particularly 11 when the same was filed at the instigation of the aunts of the plaintiff who have in turn filed a false partition suit in O.S.No.137/1988, which is pending. The partition deed dated 24.04.1967 referred to by the plaintiff was admitted in the written statement. However, the description of the 'A' schedule properties in the plaint and the location of the residential house in Sy.No.201/2B was disputed by the defendant. It is contended that the suit filed by the plaintiff alone without impleading his mother and siblings was bad for non joinder of necessary parties and that the same was liable to be dismissed.

(a) The defendant disputed the plaint averments that the areca garden which fell to the share of the plaintiff's father was aged more than 35 years. It was contended that the said areca garden in the plaint 'A' schedule property was raised in stages over several years and that consequently, no prescriptive right can be claimed by the plaintiff. The description of the trees on the plaint 'A' schedule properties and income therefrom was disputed by the defendant. While admitting that Sy.No.201/1 and Sy.No.201/2A were formerly 12 paddy fields, the contention of the plaintiff that there was one water storage tank with springs thereon in Sy.No.201/1 was disputed and the defendant contended that the said tank was not a mere storage tank but a tank existing in the paddy fields with water flowing to the fields. The water of the fields were let out to the stream situated at the north when the lands were paddy fields.

(b) The defendant denied the claim that during rainy season, huge quantities of water used to stagnate in the areca garden. It was contended that the excess rain water was let out to a stream which was situated on the outer side above the areca garden where the rain water flows during rainy season. It was specifically contended that this stream running south to north on the western side of the plaintiff's areca garden which then goes on from east to west on the northern side of the plaintiff's properties was separated by a bund and the rain water from the fields and the garden was discharged into the said stream. It was also contended that in addition to discharging the rain water as referred to above, rain water was also discharged through another drainage channel which was 13 running on the southern side of both the 'A' and 'B' schedule properties which was used to drain the excess water. The said southern drainage channel is delineated by the letters, D-B in the plaint sketch prepared by the revenue authorities. It was therefore contended that having regard to the aforesaid two modes of discharge of excess water from the plaintiff's lands, i.e., through the DB channel as well as through the aforesaid channel running northward from the tank and joining the natural stream, there was no question of plaintiff being entitled to any right over the CD channel and removal of blockage or obstruction to the CD channel did not arise. It was contended that when the plots were paddy fields, there were no ujru khani's in the 'A' or 'B' schedule properties nor was there any necessity to drain the same.

(c) At paragraph-5 of the written statement, the claim of the plaintiff with regard to existence of the alleged drainage channel or the draining of water through the same was disputed by the defendant. It was specifically contended that the drainage channels (ujru khanis) are not necessary to drain excess spring water or rain water. Further, some ujru khanis 14 were sunk when the paddy fields were converted into areca gardens. However, ujru khanis are only a temporary device and not permanent features of any garden and whenever the need for ujru khanis does not continue, the same are closed.

(d) In this context, it was contended that ujru khanis are usually formed during the initial stages of raising an areca garden but once the level/height of the areca garden is raised subsequently, there would be no stagnation of water and consequently, the ujru khani is closed. Prior to filing of the suit itself, the height of the plaintiff's areca garden was increased resulting in there being no necessity to discharge rain water through the land of the defendant which is sought to be claimed by the plaintiff only on account of spite towards the defendant.

(e) The defendant contended that even subsequent to filing of the suit there exists a drainage channel intended for draining excess water passed through both 'A' and 'B' schedule properties and flows into the stream to the south of both the properties through the land one C.H.Govinda Bhat. The plaintiff was also in a position to dig trenches in the A 15 schedule property as and where required and connect the same to this channel and discharge excess water through the same. Apart from this, there are several other drainage channels in the plaintiff's areca garden which run north - south and discharge excess water into the aforesaid drainage channel on the southern side. In addition thereto, there also exists a tank in Sy.No.201/1 from which rain water is discharged into the stream situated on the northern side of Sy.No.201/1. Under these circumstances, having regard to the fact that there were enough means for the plaintiff to discharge excess water in the 'A' schedule property coupled with the fact that the disputed drainage channel as well as other ujru khanis are only a temporary device, the plaintiff has no right over the disputed drainage channel.

(f) At paragraphs 6 to 8 of the written statement, the defendant reiterated his earlier contentions and also denied the various averments made in the plaint. While admitting that the defendant was residing about 2 Kms away at palla, the claim of the plaintiff that the defendant borrowed Rs.1,19,500/- from the plaintiff was denied by the defendant. In this context, 16 it was contended that since the defendant was residing away, the 'B' schedule properties which fell to his share at the partition was being managed by the plaintiff and his brother who were crediting the sale proceeds arising out of the produce from the 'B' schedule properties due to the defendant to his account and as such, the various allegations made by the plaintiff in this regard was denied by the defendant.

(g) The defendant further contended that when the plaintiff and his brother Balachandra Bhat were managing the 'B' schedule properties between 1983 and 1987, they had dug some ujru khanis though the same were not required. Subsequent to the defendant taking over the 'B' schedule properties, he closed the said ujru khanis since the same was not required for the 'B' schedule properties as well as the fact that the same including the disputed ujru khani CD were not in existence either in 1967 or thereafter. The excess water in the 'A' schedule property can easily be discharged through the ujru khani which exists in both 'A' and 'B' schedule properties and joins the stream by flowing through the land of C.H.Govinda Bhat or through the drainage channel that 17 connects the water tank to the stream situated to the north of 'A' schedule properties. It is therefore contended that while allowing water to be discharged through the CD channel will cause loss and hardship to the defendant, no prejudice or hardship will be caused to the plaintiff if the excess water is not discharged through the CD channel since the aforesaid alternate channels are available for discharge of excess water.

(h) At paragraphs 9 to 17 of the written statement, the plaint averments were denied by the defendant who reiterated the various defences put forth by him. The defendant also contended that the plaintiff was not entitled to any of the reliefs sought for by him and the suit was liable to be dismissed.

5. Based on the above pleadings, the trial court framed the following issues:-

" 1. Whether plaintiff proves the correctness of the description of the properties given in plaint A and B schedule of the Plaint?

2. Whether the plaintiff proves that he has perfected his right and title over the drainage channel existing in plaint A and B schedule 18 properties to lead rain water, spring water and other excess eater from A schedule property?

3. Whether the plaintiff's prove that the defendant caused obstruction for his right of water ?

4. Whether the defendant proves that this Court has no jurisdiction to entertain or try the suit?

5. Whether the plaintiff's prove that he is entitled to declaration as prayed for?

6. Whether the plaintiff proves that he is entitled for permanent injunction as prayed for?

7. Whether the plaintiff proves that he is entitled for mandatory injunction for removal of obstruction alleged to have been caused by the defendant on the drainage channel?

8. To what order or decree?

Addl. Issue 1: Whether plaintiff proves that he has suffered damages as alleged? If so, is he entitled to claim the same from defendants?"

6. On behalf of the plaintiff, he examined himself as PW-1 and two witnesses as PWs 2 and 3 and documentary evidence at Exs.P-1 to P-33 were marked on his behalf. The defendant examined himself as DW-1 and two witnesses as DWs 2 and 3 and Exs.D-1 to D-5 were marked on his behalf. 19

7. By its judgment and decree dated 06.09.1995, the trial court recorded the following findings:

(a) The trial court came to the conclusion that the plaintiff had not acquired any prescriptive right of easement over the disputed CD drainage channel as claimed by him;

(b) The trial court also came to the conclusion that the plaintiff was not entitled to permanent injunction against the defendant in respect of the disputed CD drainage channel;

(c) The trial court also held that the plaintiff was not entitled to mandatory injunction in respect of the disputed CD drainage channel;

(d) The trial court also negatived the claim for damages put forth by the plaintiff in respect of the disputed CD drainage channel;

(e) However, the trial court took note of the admission made by the defendant in his pleadings and evidence that he had no objection for the plaintiff to discharge excess water through DB channel situated in 'B' schedule properties;

(f) That the excess water collecting in the 'A' schedule property can be discharged through the channel that is 20 situated at Point 'T'(Water Tank) and joins Point 'D' and runs through the said DB channel which thereafter continues to run eastwards through the land of C.H.Govinda Bhat and ultimately joins a natural stream;

(g) That discharge of excess water collected on the A schedule property through the DB channel was sufficient to satisfy the claim of the plaintiff and that no hardship, loss or prejudice would be caused to him if excess water was discharged through the said DB channel and no relief's need to be granted in favour of the plaintiff in respect of the CD channel, particularly when the plaintiff had not established his alleged right over the same.

8. Based on the aforesaid findings of fact, the trial court decreed the suit of the plaintiff in the following manner:

(a) The claim for declaration, permanent injunction, mandatory injunction and damages etc., in respect of disputed CD drainage channel was rejected by the trial court;

(b) However, the trial court declared that the plaintiff was entitled to easementary right over the aforesaid southern 21 DB drainage channel conceded to/admitted by the defendant by discharging water from the channel that starts at Point 'T'(Water Tank) and runs west - east in the 'A' schedule properties and joins Point 'D' and runs further eastwards till point 'B' on the B schedule properties and thereafter passes through the land of C.H.Govinda Bhat and ultimately joins the main stream;

(c) The trial court passed a decree for permanent injunction in respect of the aforesaid southern DB drainage channel;

(d) Since even according to both the plaintiff and defendant, this DB drainage channel had not been obstructed by the defendant, the question of granting mandatory injunction in respect of this channel did not arise;

(e) Since the claim of easementary right over the disputed CD drainage channel had been rejected and the plaintiff had not sought for damages in respect of the DB drainage channel, the prayer for damages recoverable from the defendant was also rejected by the trial court; 22

(f) Accordingly, while rejecting all the four prayers for declaration, permanent injunction, mandatory injunction and damages in respect of the disputed CD drainage channel, the trial court passed a decree for declaration and permanent injunction only in respect of the undisputed DB drainage channel.

9. Since the judgment and decree passed by the trial court only in respect of the southern DB drainage channel did not in any way affect the defendant who had conceded and admitted to passing of the said decree in his pleadings and evidence, the defendant did not challenge the judgment and decree of the trial court.

10. However, the plaintiff who was denied all the aforesaid four reliefs sought for by him in respect of the disputed CD drainage channel preferred an appeal in R.A.No.28/1995 before the first appellate court. The said appeal was contested by the defendant who was arrayed as respondent before the first appellate court. After hearing the 23 parties, the first appellate court formulated the following points for consideration:-

" 1. Whether the court below has erred in not granting the mandatory injunction?

2. Whether the Court below has erred in not granting the damages?"

11. As can be seen above, point No.1 formulated by the first appellate court deals with the non-grant of the relief of mandatory injunction by the trial court, while point No.2 deals with non - grant of the relief of damages.

12. By the impugned judgment and decree, the first appellate court answered point No.1 (supra) in favour of the plaintiff, thereby passing a decree for mandatory injunction in respect of the disputed CD drainage channel. However, the claim for damages sought for by the plaintiff which was covered by point No.2 (supra) was rejected by the first appellate court.

13. Aggrieved by the impugned judgment and decree passed by the first appellate court insofar as it relates to grant 24 of a decree for mandatory injunction in respect of the disputed CD drainage channel, the defendant has preferred this second appeal.

14. It is relevant to state that the plaintiff whose prayers for declaration in respect of disputed CD drainage channel, permanent injunction in respect of disputed CD drainage channel and damages in respect of disputed CD drainage channel, have been negatived by both the trial court as well as the first appellate court has not chosen to prefer any appeal before this Court. Thus the non-grant of the aforesaid relief's in favour of the plaintiff in respect of the disputed CD channel has attained finality and become conclusive and binding upon the plaintiff. Consequently, the scope of the present second appeal is restricted and limited to the legality, validity and correctness of the decree for mandatory injunction passed in respect of the CD channel in favour of the plaintiff by the first appellate court.

15. On 25.01.2011, this Court framed the following substantial questions of law:-

" 1) When the respondent could very well discharge excess water during rainy season through a trench in his own land as held by the trial Court, whether the lower appellate Court is right in ignoring the reasons of the Court below and holding that there is a material irregularity and granting decree for mandatory injunction?

2) Having regard to the respondent's admission that in his own 'A' schedule garden he had many "Ujrukanis" and were closed, whether in law he could insist that the appellant should keep open the alleged "Ujrukani" for his benefit?

3) Whether the lower appellate Court was justified in ignoring the fact that both plant 'A' and 'B' schedule properties were under common management of the respondent till about 1985 and as such the right claimed by the respondent as owner of 'A' schedule to discharge water through the alleged "Ujrukani" would legally constitute a basis for easement by prescription during the period of common management. It amounts to taking advantage of ones own wrong?

4) Whether the Judgment and Decree of the lower appellate Court is sustainable in law for misreading of evidence of D.W.1 holding that there is an admission of respondent's right?

5) "Ujrukani" by its very nature being a devise to discharge excess water to prevent stagnation in the initial years of areca plantation is not a permanent feature and which is closed in due course when the level of garden is raised, can an easementary right be claimed in law over such temporary devise?"

16. The material on record indicates that in addition to the aforesaid questions of law, the following additional substantial question of law also arises for consideration in this appeal:

" Whether the First Appellate Court was justified in passing a decree for mandatory injunction in respect of the disputed CD drainage channel without holding that the plaintiff had acquired prescriptive right of easement over the same as well as without reversing the judgment and decree of the trial court which had expressly rejected not only the said claim of the plaintiff but also refused to grant any relief in favour of the plaintiff in respect of the disputed CD drainage channel ? "

17. I have heard Sri. Lakshmeesh Rao, learned counsel appearing on behalf of the appellant and Sri. Shankarnarayana Bhat, learned counsel appearing on behalf 27 of the respondent on the aforesaid substantial questions of law as well as additional substantial question of law.

18. Learned counsel appearing for the appellant made the following submissions:

a) The first appellate court committed an error in passing a decree for mandatory injunction in respect of the disputed CD drainage channel which was not granted by the trial court. In the suit, the plaintiff had sought for declaration, permanent injunction, mandatory injunction and damages in respect of the disputed CD drainage channel and so long as the first appellate court did not reverse and confirmed the judgment and decree of the trial court insofar as it related to not granting the reliefs of declaration, permanent injunction and damages in respect of the said channel, it was not open for the first appellate court to pass a decree for mandatory injunction in respect of the CD channel;

b) It was submitted that the relief of mandatory injunction in respect of the disputed CD drainage channel is only a consequential relief which can be granted only after coming 28 to the conclusion that the plaintiff was entitled to easementary right over the said channel and a decree for declaration of the same was granted in his favour and without reversing the judgment and decree of the trial court which had refused to uphold the prescriptive right of the plaintiff and grant any relief in respect of the disputed CD drainage channel, the consequential relief of mandatory injunction in respect of the said channel could not have been passed by the first appellate court;

c) It was also submitted that the plaintiff has not chosen to challenge the non-grant of declaration, permanent injunction and damages in respect of disputed CD drainage channel by both the trial court as well as the first appellate court by preferring an appeal before this Court. In other words, it was contended that so long as the easementary right of the plaintiff over the disputed CD drainage channel was not recognized and upheld by both the courts, the question of granting the relief of mandatory injunction was not permissible in law and the impugned judgment and 29 decree passed by the first appellate court was liable to be set aside on this ground alone;

d) Learned counsel submitted that the trial court had come to the correct conclusion that the plaintiff could very well discharge excess water through the undisputed DB drainage channel by adopting any of the aforesaid 3(three) modes/means which existed on his land and which would be least onerous to the defendant and would not cause any prejudice or hardship to the plaintiff who, at any rate, would be in a position to discharge the excess water through the said alternative channel. It was submitted that the said finding recorded by the trial court was not set aside by the first appellate court in the impugned judgment and decree and the same has attained finality and become conclusive and binding upon the plaintiff and as such, it was not open for the first appellate court to pass a decree for mandatory injunction in respect of the disputed CD drainage channel;

e) Learned counsel submitted that the first appellate court has completely misdirected itself in placing reliance upon an alleged admission in the evidence of the defendant (DW-1) 30 in order to come to the conclusion that he does not have any objection for the plaintiff to use the disputed CD drainage channel for the purpose of discharging excess water on the 'A' schedule property. In this context, it was submitted that it was well settled that for the Court to act upon an admission, particularly in the cross-examination, it was absolutely essential that the said admission must be clear, definite, certain, unequivocal and unambiguous and binding upon the person making an admission. It was pointed out that a perusal of the evidence of DW-1 will indicate that the alleged admission in the cross-

examination, if any, was only a stray admission, which did not satisfy the aforesaid requirements and which was not capable of being acted upon against the defendant particularly if the entire evidence is read as a whole. It was therefore contended that the alleged admission of DW-1 could not have been made a basis by the first appellate court to pass a decree for mandatory injunction in favour of the plaintiff against the defendant;

f) Learned counsel for the appellant submitted that the easementary right claimed by the plaintiff relates to an easement of necessity as contemplated under Section 13(e) of the Act. In this context, it was pointed out that the entire pleadings and evidence of the plaintiff proceed on the basis that the plaintiff had acquired easementary right by prescription and not by way of necessity. It was therefore submitted that having regard to the specific contention put forth by the plaintiff that he had acquired easementary right by prescription over the disputed CD drainage channel and in the absence of any pleading with regard to the said right being an easement of necessity, the claim of the plaintiff in this regard was liable to be rejected;

g) Alternatively, it was contended that even assuming but not conceding that the claim of the plaintiff constituted an easement of necessity, the same did not satisfy the ingredients of Section 13(e) of the Act. In this context, learned counsel submitted that the necessity contemplated under Section 13(e) was not a mere necessity simpliciter but the same should be an absolute necessity which was 32 conspicuously missing in the instant case. It was submitted that in the light of availability of alternative channels referred to supra, the necessity of using disputed CD drainage channel by the plaintiff could not be construed as even a necessity, much less an absolute necessity for the purpose of discharging excess water. Under these circumstances, learned counsel submitted that having regard to the categorical admission made by the plaintiff that there existed several drainage channels in his own 'A' schedule property and many of them having been closed, the plaintiff was not entitled to the right of easement over the disputed CD drainage channel.

h) Learned counsel submitted that even assuming but not conceding that the plaintiff acquired the right of easement of necessity under Section 13(e) of the Act, having regard to the provisions contained in Section 14 of the Act, it was the prerogative of the defendant who was the owner of the 'B' schedule property which was the servient tenement which fell to his share to set out the mode of enjoyment of the easement by the plaintiff. In this context, it was 33 submitted that having regard to the alternative drainage channels available to the plaintiff, in particular, the southern drainage channel which undisputedly runs through the 'B' schedule property of the defendant, it was the prerogative of the defendant to direct the plaintiff to enjoy the alleged easement of necessity only through the southern drainage channel and not through the disputed CD drainage channel and as such, the claim of the plaintiff was liable to be rejected on this ground also;

i) Learned counsel also invited my attention to Section 28 of the Act in order to contend that insofar as the extent of the alleged easementary right of necessity of the plaintiff and its mode of enjoyment was concerned, the same was coextensive with the necessity as it existed when the easement was imposed. In this context, it was submitted that even assuming but not conceding that the plaintiff's easementary right over the disputed CD drainage channel was imposed on 24.04.1967 when partition was effected, the alleged right was coextensive with the necessity as on the date of the filing of the suit. It was therefore contended 34 that in the light of the availability of alternative channels to drain the excess water from the plaintiff's property, the alleged easementary right of the plaintiff, if any, over the disputed CD drainage channel did not exist as on the date of filing of the suit and consequently, the claim of the plaintiff was liable to be rejected on this ground also;

j) Insofar as reliance being placed upon Section 13(f) of the Act by the plaintiff to claim his alleged easementary right was concerned, learned counsel submits that before Section 13(f) of the Act can be invoked, it was absolutely essential that the alleged easement was apparent, continuous and necessary for enjoying the 'A' schedule property at the time of aforesaid partition. In this context, learned counsel pointed out that the alleged easementary right of the plaintiff over the disputed CD drainage channel was neither apparent nor continuous as contemplated under Section 5 of the Act. In fact, the alleged easementary right was a discontinuous and non-apparent easement and consequently, Section 13(f) of the Act cannot be relied upon by the plaintiff in support of his claim. It was 35 submitted that at any rate, there was neither pleading nor evidence on the part of the plaintiff with regard to applicability of Section 13(f) and as such, the claim of the plaintiff in this regard was liable to be rejected;

k) Insofar as acquisition of easementary right by prescription by the plaintiff as contemplated under Section 15 of the Act is concerned, learned counsel submitted that the material on record clearly established that it was not in dispute that both 'A' and 'B' schedule properties were joint family properties prior to partition dated 24.04.1967. It was pointed out that even after partition, at which time the plaintiff was aged about 15-16 years, his uncle, Krishna Bhat who was also the brother of the defendant was managing both the 'A' and 'B' schedule properties till 1982. Further, since the defendant did not have a residential house in the 'B' schedule property which fell to his share, he started residing at Panaje which was about 2 Kms away and even the 'B' schedule property was managed by Krishna Bhat. It was only in 1983 that the defendant built a house in the 'B' schedule property and shifted there in 36 1985. Learned counsel invited my attention to the period of 20 years plus 2 years prior to filing of the suit i.e., 22 years prior to a suit that was mandatorily required by the plaintiff to claim that he has acquired the alleged easementary right over the disputed CD drainage channel by prescription as contemplated under Section 15 of the Act. It was also submitted that even the exercise of the said easementary right by the plaintiff should have been open, continuous and uninterrupted for the statutory period of 22 years hostile and adverse to the right of defendant before the easementary right can be construed as having ripened into a prescriptive right. It was submitted that the plaintiff had not established the ingredients of Section 15 in respect of the said statutory period of 22 years from 24.04.1967 to 05.12.1989 when the suit was filed. It was therefore contended that in the absence of the plaintiff proving his right of acquisition of easement for the aforesaid statutory period of 22 years, his claim of acquisition of the easementary right by prescription was liable to be rejected; 37

l) Learned counsel also invited my attention to Section 49 of the Act in order to contend that having regard to the material on record which indicated that there was unity of possession of the 'A' and 'B' schedule properties during the period from 1967 to 1989, the alleged easementary right imposed upon the 'B' schedule property by virtue of the partition dated 24.04.1967, stood suspended and the plaintiff had not enjoyed the said easementary right for the statutory period of 22 years prior to filing of the suit;

m) Learned counsel submitted that the plaintiff had not adduced any evidence with regard to existence of disputed CD drainage channel either before or after the partition dated 24.04.1967. In this context, it was submitted that it was the specific contention of the defendant that the said channel was put up by him in 1982-1983 at the time of construction of his house over the 'B' schedule property and that the said channel was not in existence prior to that time. Though the defendant had admitted the existence of the said channel and closure of the same by him prior to the suit, the plaintiff had not established that the said 38 channel was in existence prior to 1982. He pointed out that existence of the channel does not find a place in the partition deed dated 24.04.1967. Further, the plaintiff had not adduced any legal or acceptable evidence to establish that the channel existed prior to 1982;

n) Learned counsel invited my attention to paragraph 30 of the judgment and decree passed by the first appellate court wherein the court placed reliance on an purported admission in the cross-examination of defendant (DW-1) in order to come to the conclusion that the disputed CD drainage channel was in existence from 1967 onwards. In this context, it was pointed out that the said admission referred to in paragraph 30 of the judgment of the first appellate court clearly indicates that no such admission was made by the defendant (DW-1) in his evidence and as such, the impugned judgment and decree based on no evidence / misreading of evidence of DW-1 was liable to be set aside. It was therefore contended that in the light of the fact that there was no evidence to establish the existence of the disputed CD drainage channel prior to 1982, the 39 claim of the plaintiff that he acquired prescriptive right of easement by enjoying the easementary right of discharging excess water from 1967 to 1989 deserves to be rejected;

o) Learned counsel also submitted that the material on record also established that the disputed CD drainage channel was only a temporary device which was formed in the initial stages of raising the areca garden in the plaintiff's 'A' schedule property. It was submitted that the said channel was not a permanent feature and was closed in due course when the level of the garden was raised and consequently, by virtue of the provisions contained in Section 6 of the Act, the alleged easementary right of the plaintiff being wholly temporary in nature and time bound, the same came to an end by efflux of time much prior to filing of the suit. It was therefore contended that even assuming the disputed CD drainage channel was in existence at the time of converting the paddy fields into an areca garden in the plaintiff's 'A' schedule property, the alleged easementary right of the plaintiff over the said channel expired and came to an end 40 subsequently and did not continue either by way of necessity or prescription prior to filing of the suit;

p) Learned counsel for the appellant invited my attention to paragraph 3 of the plaint wherein the plaintiff has categorically admitted not only the existence of the alternative channel on the southern side of the 'A' and 'B' schedule properties, but also the fact that the excess water from the 'A' schedule property was being discharged through the said DB channel which goes through the land of C.H.Govinda Bhat and reaches the natural stream. Learned counsel also invited my attention to the admission in the cross-examination of the plaintiff (PW-1) to the effect that excess water in the 'A' schedule property was also being discharged through the water tank in Sy.No.201/1 which in turn was connected to the natural stream on the northern side. It was submitted that having regard to the provisions contained in Section 22 of the Act, it was incumbent upon the plaintiff to exercise his easementary right in a mode that was least onerous to the defendant particularly when the excess water in the 'A' schedule 41 property can be discharged through the alternative two channels and consequently, the defendant was entitled to call upon the plaintiff to confine his alleged easementary right over the 'B' schedule property to only the DB channel which also passed through the 'B' schedule property and not put forth any claim of easementary right over the disputed CD drainage channel. It was therefore contended that viewed from this angle also, the claim of the plaintiff deserves to be rejected;

q) Learned counsel submitted that the first appellate court committed a grave and serious error of law in holding that the plaintiff was entitled to mandatory injunction directing removable of the obstruction caused by the defendant to the disputed CD drainage channel on the ground that there was an admission in this regard by the defendant. In this context, learned counsel submitted that it is well settled that plaintiff has to stand or fall on the strength of his own case and weakness of the defendant cannot be relied upon by plaintiff in support of his case and as such, the claim of plaintiff was liable to be rejected;

r) Putting forth the aforesaid submissions, learned counsel submitted that all the substantial questions of law as well as the additional substantial question of law deserve to be answered in favour of the appellant and the impugned judgment and decree passed by the first appellate court deserves to be set aside.

19. Per contra, learned counsel for the respondent made the following submissions:

a) The existence of the disputed CD drainage channel prior to the partition dated 24.04.1967 as well as the closure / obstruction of the same by the defendant was an undisputed fact and the same also stood established by the material on record, in particular, the oral and documentary evidence adduced by both parties.

b) It was contended that the undisputed sketch at Ex.P7 clearly established the existence of the disputed CD drainage channel.

c) It was also contended that the said channel was only 1 feet wide and was situated at the eastern edge of the 'B' 43 schedule property. It was therefore contended that no prejudice whatsoever will be caused to the defendant if excess water from the 'A' schedule property was discharged through the said channel;

d) Learned counsel also pointed out that it was not in dispute that the 'A' schedule property was situated at a higher level than the 'B' schedule property and the natural movement of the excess water was West-East i.e., from the 'A' schedule property to the 'B' schedule property. Under these circumstances, it was necessary for the plaintiff to discharge the excess water from the 'A' schedule property through the disputed CD drainage channel;

e) It was submitted that the easementary right of the plaintiff to discharge excess water through the CD channel was both an easement by necessity as well as an easement by prescription which was acquired by the plaintiff during the period from 24.04.1967 till 05.12.1989 which was well over the statutory period of 22 years;

f) It was also submitted that in the light of the admission made by the defendant with regard to the existence of the 44 CD channel as well as the fact that he had no objection for discharge of excess water by the plaintiff through the said channel, the first appellate court was fully justified in passing a decree for mandatory injunction in favour of the plaintiff;

g) The first appellate court has correctly and properly considered and re-appreciated/re-evaluated the entire material on record and has arrived at a just, fair and proper decision which does not warrant interference by this Court

h) It was therefore contended that all the substantial questions of law are to be answered against the appellant and the above appeal being devoid of merit was liable to be dismissed.

20. I have given my anxious consideration to the rival submissions made by both the parties and perused the material on record.

21. Before adverting to the rival contentions, it is necessary to state that a perusal of the undisputed suit sketch at Ex.P-7 will indicate the following aspects: 45

a) Lands bearing Sy.No.201/2A, Sy.No.201/2B and Sy.No.201/1 are the A schedule properties belonging to the plaintiff;

b) Lands bearing Sy.No.199/1 and Sy.No.199/3 are the B schedule properties belonging to the defendant and which are situated to the east of the A schedule properties;

c) According to the plaintiff, there exists a drainage channel(ujru kani) which starts from Point 'A' situated in Sy.No.201/2A and which runs northward across Sy.No.201/1 and then turns eastward and joins Point 'C' which is situated in Sy.No.199/1;

d) It is also the case of the plaintiff that from the aforesaid Point 'C', the channel runs southwards and joins Point 'D' which is also situated in Sy.No.199/1;

e) From the said Point 'D', the channel runs eastward in Sy.No.199/1 and joins Point 'B' situated in the adjacent Sy.No.199/3;

f) Thereafter, the said channel runs further eastward into the land of C.H.Govinda Bhat and ultimately joins a natural stream situated on the east;

g) Thus the plaintiff contended that excess water collected in the A schedule properties, viz., Sy.No.201/2A, Sy.No.201/2B and Sy.No.201/1 can be discharged only in the aforesaid manner, i.e., only through the aforesaid channel starting from Point 'A' and running through the disputed CD channel over which the plaintiff has acquired an easementary right by way of prescription;

h) Per contra, the defendant contended that there was no excess water that was being collected in the A schedule property as alleged by the plaintiff;

i) The alleged excess water, if any, in the A schedule properties was capable of being discharged through other means/modes without making use of the disputed CD drainage channel;

j) It was admitted/conceded by the defendant that he did not have any objection for the excess water being discharged through the channel from Point 'D' situated in Sy.No.199/1 which runs eastward and joins Point 'B' in Sy.No.199/3 and thereafter joins the natural eastern stream by passing through the land of C.H.Govinda Bhat;

k) The alleged excess water was in fact already being discharged by the plaintiff and was also capable of being easily discharged by a channel that starts from the Point 'T'(Water Tank) and runs eastward and joins Point 'D' and runs further eastwards to Point 'B' and joins the natural stream for which the defendant did not have any objection as stated supra;

l) The alleged excess water was also capable of being easily discharged by a channel that starts from the Point 'T'(Water Tank) and runs northward in Sy.No.201/1 and joins a natural stream on the northern side;

m) The alleged excess water was also capable of being easily discharged by the plaintiff by digging trench(es) in the A schedule properties and connecting the same to Point 'D' which runs further eastwards to Point 'B' and joins the natural stream for which the defendant did not have any objection as stated supra;

n) It was therefore contended by the defendant that apart from the disputed CD channel, plaintiff was in a position to discharge the alleged excess water through the aforesaid 48 3(three) alternative modes/means and in the light of the specific admission/concession on the part of the defendant that he had no objection for the plaintiff to use the DB channel situated in the B schedule properties to discharge water, the claim of the plaintiff over the disputed CD channel was liable to be rejected.

22. With the aforesaid background, my findings on the substantial questions of law are as under:

Re : Additional Substantial Question of Law :

This question of law relates to whether the first appellate court was justified in passing a decree for mandatory injunction in respect of the disputed CD drainage channel without coming to the conclusion that the plaintiff had established his alleged easementary right over the CD channel and also without reversing the judgment and decree of the trial court which had expressly rejected the claim of the plaintiff for easementary right over the said CD channel.

(ii) In this context, a perusal of the frame of the suit and the claim put forth by the plaintiff in his pleadings and 49 evidence will clearly indicate that it was the specific contention of the plaintiff that he was entitled to the easementary right of prescription over the disputed CD drainage channel

(iii) While resisting the suit, the defendant denied the claim of the plaintiff over the CD channel. However, it was the specific admission/concession on the part of the defendant that the excess water can be discharged through DB channel.

It was also submitted that the said DB channel was readily available to discharge the excess water of the plaintiff and that as such, while the defendant had no objection to permit the plaintiff to discharge excess water through the DB channel, the suit in respect of the CD channel was liable to be dismissed.

(iv) After trial, the trial court came to the conclusion that the plaintiff had failed to establish his alleged easementary right over the disputed CD channel and consequently, the plaintiff was not entitled to any relief in respect of this channel. However, in order to ensure that no hardship would be caused to the plaintiff in respect of the excess stagnant water accumulating in the 'A' schedule property, the trial court acted 50 upon the admission/concession of the defendant in respect of the DB channel and consequently, the trial court passed a decree for declaration and permanent injunction in respect of the DB channel.

(v) Though the plaintiff challenged the judgment and decree of the trial court in not granting any relief in respect of the disputed CD channel, the first appellate court did not frame any point for consideration in respect of the alleged right to declaration and permanent injunction refused by the trial court in respect of the disputed CD channel. As stated supra, out of the four reliefs of declaration, permanent injunction, mandatory injunction and damages sought for by the plaintiff in respect of the disputed CD channel, the first appellate court framed only two points for consideration viz., only in respect of the non-grant of the relief of mandatory injunction and damages.

(vi) A perusal of the judgment and decree of the first appellate court will indicate that point No.2 relating to non- grant of damages in favour of the plaintiff in respect of the disputed CD channel was affirmed by the first appellate court. 51 As stated above, the non-grant of the relief of declaration and permanent injunction by the trial court in respect of the CD channel was not gone into by the first appellate court. So also, even while dealing with the point No.1 relating to mandatory injunction in respect of the CD channel, the first appellate court neither adverted to nor set aside/reversed the finding of the trial court that the plaintiff had not established his alleged easementary right over the disputed CD channel and the consequential non-grant of the relief of declaration and permanent injunction in respect of the said CD channel.

(vii) As rightly contended by the learned counsel for the appellant, in the absence of any finding recorded by the first appellate court that the plaintiff was entitled to the easementary right over the CD channel by way of prescription and in the absence of declaring that the plaintiff was entitled to the said relief and consequential permanent injunction, it was not open for the first appellate court to pass a consequential relief of mandatory injunction directing the defendant to remove the obstruction put up on the CD channel. In other words, without coming to the conclusion that the plaintiff had 52 established his easementary right over the disputed CD channel, the first appellate court clearly committed a grave error and serious error of law in passing a decree for mandatory injunction.

(viii) The impugned judgment of the first appellate court clearly indicates that it did not frame any point with regard to the alleged prescriptive easementary right of the plaintiff over the disputed CD channel and his right to the relief of declaration and permanent injunction which had been expressly rejected by the trial court. In other words, the first appellate court did not reverse the express finding of the trial court or its judgment and decree to the effect that plaintiff had not established his alleged prescriptive easementary right over the disputed CD channel. It is clear that the said finding and decree of the trial court was confirmed and affirmed by the first appellate court, particularly when same did not arise for consideration as contemplated under Order 41 Rule 31 CPC. Further, neither cross-objections nor a separate cross-appeal has been preferred by the plaintiff against the impugned judgment and decree of the first appellate court and the same 53 has attained finality and become conclusive and binding upon the plaintiff.

(ix) To sum up, the plaintiff had put forth a claim of prescriptive easementary right over the disputed CD drainage channel in the suit and had sought for relief's of declaration, permanent prohibitory injunction, mandatory injunction and damages over the said channel; the trial rejected all the relief's holding that the plaintiff had not established his claim over the CD channel; the first appellate court confirmed the trial court's judgment and decree with regard to plaintiff's lack of any right over the CD channel as well as non-grant of declaration and permanent prohibitory injunction over the CD channel and the same has attained finality on account of non-challenge by the plaintiff before this Court.

(x) In the light of the aforesaid facts and circumstances, the first appellate court clearly committed an error in passing a decree for mandatory injunction in favour of the plaintiff in respect of the disputed CD channel. It is needless to state that the foundation/genesis of the claim of the plaintiff to a decree for mandatory injunction directing removal of the obstruction 54 put up by the defendant over the CD channel was the plaintiff's alleged easementary right by prescription over the said channel. Without coming to the conclusion that the plaintiff had acquired prescriptive easementary right over CD channel, it was not permissible for the first appellate court to pass a decree for mandatory injunction in respect of the CD channel. Under these circumstances, I am of the considered opinion that the impugned judgment and decree passed by the first appellate court directing grant of mandatory injunction in respect of the CD channel suffers from serious illegality, perversity and infirmity warranting interference by this Court and consequently, the same deserves to be set aside on this ground alone.

Accordingly, additional substantial question of law is answered in favour of the appellant.

Re : Substantial Question of Law No.1:

The material on record indicates that it is the specific contention of the plaintiff that he has acquired prescriptive easementary right to discharge excess water from his lands(A 55 schedule property) through 2(two) channels(ujru kanis) situated in the defendant's lands(B schedule property). The said 2(two) channels are the disputed CD channel and the undisputed DB channel.

(ii) The material on record, in particular the admissions in the cross-examination of the plaintiff(PW-1) will indicate that in addition to the disputed CD channel, there are 3(three) other modes/means by which the plaintiff could discharge excess water, viz.,

(iii) Through a channel that starts from the Point 'T'(Water Tank) and runs eastward and joins Point 'D' and runs further eastwards to Point 'B' and joins the natural stream after passing through the land of C.H.Govinda Bhat for which the defendant did not have any objection as stated supra;

(iv) Through a channel that starts from the Point 'T'(Water Tank) and runs northward in Sy.No.201/1 and joins a natural stream on the northern side;

(v) By digging channels(trenches) in the A schedule properties and connecting the same to Point 'D' which runs further eastwards to Point 'B' after passing through the land of 56 C.H.Govinda Bhat and joins the natural stream for which the defendant did not have any objection as stated supra;

(vi) In this context, it is relevant to note that Section 22 of the Act deals with confinement of exercise of an easement by the owner of the dominant tenement. The ingredients of Section 22 are as under:

a) A duty/obligation is cast upon the dominant owner to exercise his easementary right in the mode least onerous to the servient owner;

(b) If the exercise of the easementary right by the dominant owner can, without detriment to him, be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.

(vii) A reading of the aforesaid provision indicates that any imposition of an easement upon a property should be done in a manner that is least onerous to the owner of the property. As stated supra, in the instant case, in addition to the disputed CD channel, plaintiff was in a position to discharge excess water by adopting any of the aforesaid 3(three) alternative modes/means which have not only been admitted 57 and conceded to by the defendant but would be least onerous to the defendant and also cause little or no hardship or prejudice to the plaintiff.

(viii) In view of the aforesaid facts and circumstances, the trial court came to the correct conclusion that the plaintiff was in a position to discharge excess water through any of the aforesaid 3(three) alternative modes which would be least onerous to the defendant and would not cause any prejudice or hardship to the plaintiff as contemplated under Section 22 of the Act. The said finding recorded by the trial court was not set aside by the first appellate court in the impugned judgment and decree and the same has attained finality and become conclusive and binding upon the plaintiff.

(ix) Under these circumstances, since the aforesaid 3(three) alternative modes were available to the plaintiff to discharge excess water from his land, it was not open for the first appellate court to pass a decree for mandatory injunction in respect of the disputed CD drainage channel. Having regard to the provisions contained in Section 22 of the Act, it was incumbent upon the plaintiff to exercise his easementary right 58 in a mode that was least onerous to the defendant particularly when the excess water in the 'A' schedule property can be discharged through the alternative 3(three) modes and consequently, the defendant was entitled to call upon plaintiff to confine his alleged easementary right over the 'B' schedule property to only the DB channel and not put forth any claim of easementary right over the disputed CD drainage channel.

(x) Under these circumstances, in the light of the judgment and decree passed by the trial court recognizing the right of the plaintiff to discharge rain water through the undisputed DB channel by adopting any of the aforesaid 3(three) modes which are least onerous to the defendant, the impugned judgment and decree passed by the first appellate court granting mandatory injunction in respect of the CD channel also is clearly erroneous and contrary to Section 22 of the Act and the same deserves to be set aside on this ground also.

Accordingly, substantial question of law No.1 is answered in favour of the appellant.

Re : Substantial Question of Law No.2:

This question of law relates to, whether the plaintiff has acquired easementary right over the CD channel by way of easement of necessity as contemplated under Section 13(e) of the Act.

(ii) In this context, it is relevant to state that the entire pleadings and evidence of the plaintiff proceed on the basis that the plaintiff had acquired easementary right by prescription and not by way of necessity. It is therefore clear that having regard to the specific contention put forth by the plaintiff that he had acquired easementary right by prescription over the disputed CD drainage channel and in the absence of any pleading with regard to the said right being an easement of necessity, the claim of the plaintiff in this regard is liable to be rejected.

(iii) Assuming that the claim of the plaintiff constitutes an easement of necessity, the pleadings and evidence on record did not satisfy the ingredients of Section 13(e) of the Act nor support the claim of the plaintiff. In this context, it is well settled that the necessity contemplated under Section 13(e) is 60 not a mere necessity simpliciter but the same is an absolute necessity which has to be established by legal and acceptable evidence.

(iv) This Court in the case of R.Paramasivan and another vs. Smt.T.Anasuya - AIR 2005 KAR 240 has held as under:

" 22. When the plaintiff has acquired alternate passage by entering into an agreement with Sitalakshmi and thereby she is in continuous use of the alternative passage since 1982, it cannot be gain said that the plaintiff has no alternative passage much less the suit passage is a matter of easement of necessity...xxxxxxxxxxxx...Further, the fact remains that apart from pleading a right to the passage she did not establish a right over the suit passage by way of prescription or as a matter of utmost necessity. "

(v) While dealing with substantial question of law No.1, I have already come to the conclusion that in addition to the CD channel, the aforesaid 3(three) alternative modes were available to the plaintiff to discharge excess water from his land and as such, the necessity of using the disputed CD drainage channel by the plaintiff could not be 61 construed/described as even a necessity, much less an absolute necessity for the purpose of discharging excess water. Under these circumstances, having regard to the existence of the aforesaid 3(three) alternative modes of discharging his excess water, plaintiff was not entitled to the right of easement over the disputed CD drainage channel as an easement of necessity as contemplated under Section 13(e) of the Act.

(vi) Even assuming that the plaintiff acquired the right of easement of necessity under Section 13(e) of the Act, having regard to the provisions contained in Section 14 of the Act, it was the prerogative of the defendant who was the owner of the 'B' schedule property which was the servient tenement which fell to his share to set out the mode of enjoyment of the easement by the plaintiff. In this context, having regard to the aforesaid 3 alternative modes available to the plaintiff, it was the prerogative of the defendant to direct the plaintiff to enjoy the alleged easement of necessity through any of the alternative modes and not through the disputed CD drainage 62 channel and as such, the claim of the plaintiff is liable to be rejected on this ground also.

(vii) It is also relevant to refer to Section 28 of the Act which contemplates that insofar as the extent of the alleged easementary right of necessity of the plaintiff and its mode of enjoyment was concerned, the same should be co-extensive with the necessity as it existed not only when the easement was imposed, but also when the said easementary right was infringed. In this context, it has to be stated that even assuming that the plaintiff's easementary right over the disputed CD drainage channel was imposed on 24.04.1967 when partition was effected, the alleged right was co- extensive with the necessity that existed as on the date of the filing of the suit. It is therefore clear that in the light of the availability of the aforesaid alternative modes to discharge the excess water from the plaintiff's property, the alleged easementary right of the plaintiff, if any, over the disputed CD drainage channel was not in existence as on the date of filing of the suit and consequently, claim of the plaintiff is liable to be rejected on this ground also.

(viii) Insofar as reliance placed upon Section 13(f) of the Act by the plaintiff to claim his alleged easementary right by way of a quasi-easement is concerned, it has to be stated that for the purpose of invoking Section 13(f), it is absolutely essential that the alleged easement was apparent, continuous and necessary for enjoying the 'A' schedule property at the time of aforesaid partition.

(ix) The material on record indicates that the alleged easementary right of the plaintiff over the disputed CD drainage channel was neither apparent nor continuous as contemplated under Section 5 of the Act. In fact, the alleged easementary right was a discontinuous and non-apparent easement and consequently, Section 13(f) of the Act cannot be relied upon by the plaintiff in support of his claim.

(x) At any rate, there is neither pleading nor evidence on the part of the plaintiff with regard to applicability of Section 13(f) and as such, the claim of the plaintiff in this regard was liable to be rejected. Under these circumstances, in the absence of any material to establish that the right of the plaintiff to discharge excess water was an easement of 64 necessity or a quasi-easement, it is clear that the first appellate court committed a serious error of law in passing a decree for mandatory injunction in favour of the plaintiff.

Accordingly, substantial question of law No.2 is answered in favour of the appellant.

Re : Substantial Question of Law No.3:

This question of law deals with acquisition of easementary right by prescription by the plaintiff as contemplated under Section 15 of the Act. The material on record clearly establishes that it is not in dispute that both 'A' and 'B' schedule properties were joint family properties prior to partition dated 24.04.1967. Even after partition, at which time the plaintiff was aged about 15-16 years, his uncle, Krishna Bhat who was also the brother of the defendant was managing both the 'A' and 'B' schedule properties till 1982.

(ii) Further, since the defendant did not have a residential house in the 'B' schedule property which fell to his share, he started residing at Panaje which was about 2 Kms away and even the 'B' schedule property was managed by 65 Krishna Bhat. It was only in 1983 that the defendant built a house in the 'B' schedule property and shifted there in 1985. A minimum period of 22 years prior to a suit is mandatorily required by the plaintiff to claim that he has acquired the alleged easementary right over the disputed CD drainage channel by prescription as contemplated under Section 15 of the Act.

(iii) It is also relevant to state that even the exercise of the said easementary right by the plaintiff should have been open, continuous and uninterrupted for the statutory period of 22 years hostile and adverse to the right of defendant before the easementary right can be construed/treated as having ripened into a prescriptive right. As rightly held by the trial court, the plaintiff had not established the ingredients of Section 15 for the statutory period of 22 years from 24.04.1967 to 05.12.1989 when the suit was filed. It is therefore clear that in the absence of the plaintiff proving his right of acquisition of easement by exercising the same for the aforesaid statutory period of 22 years, his claim of acquisition 66 of the easementary right by prescription is liable to be rejected.

(iv) It is also relevant to refer to Section 49 of the Act which indicates that having regard to the material on record which indicated that there was unity of possession of the 'A' and 'B' schedule properties during the period from 1967 to 1989, the alleged easementary right imposed upon the 'B' schedule property by virtue of the partition dated 24.04.1967, stood suspended and the plaintiff had not enjoyed the said easementary right for the statutory period of 22 years prior to filing of the suit.

(v) In this context, in the case of Ratanchand vs Khasim Khaleeli - AIR 1964 Madras 209, it was held as under:-

" 13. It will now be convenient to refer to the third contention before we discuss the question of implied grant of easement, viz., that the acquisition of prescriptive right was not complete due to interruption. The argument based upon discontinuance or interruption of the right is put forward thus. The military authorities took on lease both Khaleel Mansions and Rushkrum and obtained 67 possession in the year 1944. The point urged is that during that period both the dominant and the servient tenements were in the possession and enjoyment of the same person and any access gained through the disputed path-away A B C D by passing and re- passing that way during that period would not enure to mature by lapse of years, the claim of a prescriptive right. S. 49 of the Indian Easements Act provides for suspension of easements. It reads:

"An easement is suspended when the dominant owner becomes entitled to possession of the servient heritage for a limited interest therein, or when the servient owner becomes entitled to possession of the dominant heritage for a limited interest therein."

Easement rights are suspended when there is a merger of the servient and the dominant tenements in the same individual and results in unity of possession. The right is not extinguished unless there is complete fusion of the seisin of the two estates in fee simple. The suspended easement by unity of possession or any other combination of interests revives the moment, there is severance of the unity of the tenements. Unity of possession during the running of the statutory period would be fatal to the acquisition of the right.

"Where the same person has been in legal occupation as tenant of the servient and dominant tenements it is obvious that the use of the servient tenement by the common occupier could not be prevented by the owner of that tenement. The operation of the unity is to destroy the effect of the previous user by breaking the continuty of enjoyment"

(Gale on Easements, 13th Edn. page 171).

This is the true legal position which would govern the acquisition of prescriptive right under the Indian Act. S. 15 of the Indian Easements Act lays down that the enjoyment must be without interruption. The continuity of the enjoyment would he broken, if during the prescriptive period, the servient and the dominant tenements happen to combine and vest together in common ownership or possession. The period prior to such unity in ownership and possession would not be reckoned in computing the number of years of enjoyment. A fresh period of twenty years is necessary to acquire an casement after the cesser of the unity.

[Madhusoodanv. Bissinath, Damper v. Bassetti Hyman v. Vim De Burg]. The view expressed in some English cases, Ladyman v. Grant, Malsom v. Rose that the period before the break could be tacked on to the subsequent period of enjoyment after severance of unity, cannot be followed in cases arising under the Indian Act.

What the statute requires is an unbroken and continuous stretch of 20 years enjoyment and not an over all period of 20 years with intermittent enjoyment in patches. "

(vi) The ratio laid down in the aforesaid decision by the Madras High Court is squarely applicable to the facts of the instant case. Under these circumstances, I am of the considered opinion that the first appellate court committed a grave and serious error in passing a decree for mandatory injunction in favour of the plaintiff and the same deserves to be set aside.

Accordingly, substantial question of law No.3 is answered in favour of the appellant.

Re : Substantial Question of Law No.4:

This question of law arises out of the finding recorded by the first appellate court that the defendant (DW1) had admitted in his evidence that the disputed CD channel was in existence and that the same was closed by the defendant prior to the suit. The first appellate court also placed reliance 70 upon a purported admission of DW-1 to the effect that CD channel was in existence prior to the partition of the year 1967. In fact, a perusal of paragraphs 29 and 30 of the impugned judgment and decree will indicate that the first appellate court has passed a decree for mandatory injunction after coming to the conclusion that DW-1 had admitted that the CD channel was in existence even prior to 1967 and that the defendant had obstructed the same and consequently, the said obstruction was liable to be removed by a decree for mandatory injunction.

(ii) In this context, it is relevant to state that except the self serving testimony of the plaintiff, he had not adduced any evidence with regard to existence of disputed CD drainage channel either before or after the partition dated 24.04.1967.

Per contra, it was the specific contention of the defendant that the said channel was put up by him in 1982-1983 at the time of construction of his house over the 'B' schedule property and that the said channel was not in existence prior to that time.

(iii) Though the defendant had admitted the existence of the said channel and closure of the same by him prior to the 71 suit, the plaintiff had not established that the said channel was in existence prior to 1982. It is relevant to state that existence of the channel does not find a place in the partition deed dated 24.04.1967. Further, the plaintiff had also not adduced any legal or acceptable evidence to establish that the channel existed prior to 1982.

(iv) A perusal of the evidence of DW-1, in particular paragraphs 13 and 14 will indicate that though DW-1 has admitted the existence of the CD channel and closure of the same in the year 1986-87, there is no admission by him with regard to the CD channel being in existence from 1967 onwards. Merely because DW-1 has admitted the existence of several ujru khanis and that the same are not harmful to his field or that he does not have any objection for the suit regarding the khanis that were dug in his field, it cannot be said that the CD channel was in existence from 1967 onwards. It also cannot be said that the defendant does not have objection with regard to the CD channel alone so as to enable the plaintiff to claim mandatory injunction particularly when the said admission is not relatable to CD channel which had 72 undisputedly been closed as on the date of the evidence of DW-1 and the said admission has to be understood as meaning the other ujru khanis including the DB channel in respect of which the trial court passed a decree in favour of the plaintiff.

(v) It is therefore clear that the first appellate court completely misdirected itself in passing a decree for mandatory injunction on the basis of a non-existing admission in the evidence of DW-1 in order to hold that the plaintiff had acquired easementary right over the CD channel. At any rate, if the entire evidence of DW-1 is read as a whole, it is sufficient to show that the said admission if any was only a stray admission and upon the same being reconciled with the other material on record, the only inference that can be drawn is that the first appellate court could not have relied / acted upon the said admission to pass a decree for mandatory injunction. It is well settled that the plaintiff has to stand or fall on the strength of his own case and weakness of the defendant cannot be relied upon by the plaintiff in support of 73 his case as held by this Court in the case of Smt.Sumitra Bai vs. P.Siddesh and another - 2014(1) KCCR 850.

(vi) Under these circumstances, the impugned judgment and decree passed by the first appellate court deserves to be set aside on this ground also.

Accordingly, substantial question of law No.4 is also answered in favour of the appellant.

Re : Substantial Question of Law No.5:

This question of law relates to the specific contention urged on behalf of the defendant that the material on record also establishes that the disputed CD drainage channel was only a temporary device which was formed in the initial stages of raising the areca garden in the plaintiff's 'A' schedule property. It was contended that the said channel was not a permanent feature and was closed in due course when the level of the garden was raised and consequently, by virtue of the provisions contained in Section 6 of the Act, the alleged easementary right of the plaintiff being wholly temporary in nature and time bound, the same came to an end by efflux of 74 time much prior to filing of the suit. It was therefore contended that even assuming the disputed CD drainage channel was in existence at the time of converting the paddy fields into an areca garden in the plaintiff's 'A' schedule property, the alleged easementary right of the plaintiff over the said channel expired and came to an end subsequently and did not continue either by way of necessity or prescription prior to filing of the suit.

(ii) In this context, a perusal of the cross-examination of the plaintiff PW-1 at paragraphs 30 and 31 will indicate that he has admitted that the CD channel was only a temporary device and that the same was not meant to be a permanent feature. It is admitted that the CD channel was used to discharge excess water when the areca plants were young saplings and that once the same had become big, there was no requirement to use the CD channel to discharge excess water from the 'A' schedule property. This easementary right to discharge water through a temporary device is known as a 'temporary easement' statutorily recognized under Section 6 of the Act and the same is restricted to a certain period in 75 time. Applying the principles contained in Section 6 of the Act coupled with the material on record which clearly establishes that the CD channel was in existence only for a limited period when the areca plants were young, I am of the considered opinion that since the CD channel was only a temporary easement as contemplated under Section 6 of the Act. In the light of the undisputed fact that the areca garden contained fully grown trees as on the date of filing of the suit, the plaintiff did not continue to be entitled to an easementary right of a permanent and indefeasible nature/character so as to entitle him to the relief of mandatory injunction in respect of the CD channel. Under these circumstances, the impugned judgment and decree passed by the first appellate court deserves to be set aside on this ground also.

Accordingly, substantial question of law No.5 is also answered in favour of the appellant.

23. In the result, I pass the following:

ORDER

(i) The Regular Second Appeal is hereby allowed; 76

(b) The impugned judgment and decree dated 28.02.2006 passed in R.A.28/1995 by the learned 1st Additional District Judge, Dakshina Kannada, Mangalore, is hereby set aside;

(c) The judgment and decree dated 06.09.1995 passed in O.S.No.120/1989 by the learned Civil Judge, Dakshina Kannada is hereby restored;

No costs.

Sd/-

JUDGE Srl.

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