HON'BLE SRI JUSTICE M.VENKATA RAMANNA
SECOND APPEAL Nos. 374 & 375 of 2000
COMMON JUDGMENT:
The plaintiff in O.S.No.9 of 1990 on the file of the Court of the
learned Subordinate Judge (Senior Civil Judge), Srikalahasti is the
appellant in S.A.No.374 of 2000. He was the defendant in O.S.No.2 of
1990 on the file of the same Court and he preferred S.A.No.375 of 2000.
2. O.S.No.9 of 1990 was filed by the appellant to declare his 1/8th
share in the suit well as well as the suit site, for removal of different
structures over the suit site by means of mandatory injunction and for
permanent injunction restraining the respondent from closing the suit well
and the suit site interfering with his 1/8th share therein by making constructions or alterations including storing fertilisers or pesticides etc.
3. The respondent sought permanent injunction in O.S.No.2 of 1990 restraining the appellant from interfering in any manner with the constructions being made by him over the plaint schedule site therein.
4. The parties as arrayed in S.A.No.374 of 2000 shall be referred to hereinafter for convenience.
5. The property concerned to both the suits is one and the same, located in Kothapet area, Srikalahasti town, Chittoor District that included a well and a site measuring east-west - 20 feet, and North-South - 10 feet. The structures raised on this site are also part of the plaint schedule in O.S.No.2 of 1990.
6. By common judgment in both the suits dated 28.11.1996, O.S.No.9 of 1990 was decreed as prayed and O.S.No.2 of 1990 was dismissed. A.S.No.137 of 1996 and A.S.No.135 of 1996 were preferred by MVRJ, S.A.Nos.374 & 375 of 2000 2 the respondent on the file of the Court of the learned V Additional District Judge, Chittoor at Tirupati, where by the decrees and common judgment dated 17.01.2000, that part of the decree granting mandatory injunction in O.S.No.9 of 1990 was set aside, while confirming the permanent injunction granted therein. The decree and judgment in O.S.No.2 of 1990 were reversed granting permanent injunction as requested in favour of the respondent and against the appellant.
7. The appellant preferred both these second appeals in these circumstances.
8. The respondent did not prefer cross-appeal or cross objections in respect of the relief maintained by the appellate Court in favour of the appellant relating to grant of permanent injunction. The relief granted by the appellate Court as per the decree in appeal did not in any manner interfere with the declaration granted by the trial Court in favour of the appellant nor any second appeal is preferred there against by the respondent herein.
9. Both these second appeals are heard together and therefore they are being disposed of by this common judgment.
10. The appellant and respondent are neighbours. Both of them are traders in fertilisers at Srikalahasti. The premises of the appellant is to the south of the disputed site claimed by the respondent. The disputed well is located in that disputed site. This well is a draw well and was serving as a source of drinking water not only to the parties to these appeals including their predecessors-in-title but also to the entire locality.
MVRJ, S.A.Nos.374 & 375 of 2000 3
11. The case of the appellant is that he had purchased the premises in his occupation under a registered sale deed dated 21.09.1976 from the erstwhile owner Smt. Koneti Meeramma @ Gandla Meenamma for valid consideration including 1/8th share in the disputed well. He further stated that he has been enjoying water from this well using an electric motor. While admitting that the respondent has remaining share in the disputed well and the site, he further stated that with an intention to occupy the disputed site, since it is located adjoining the main road as well as the suit well, the respondent closed it to which he alleged that the respondent did not have right. He further stated that the respondent had put up a sunshade measuring east-west-20 feet and north-south-3 feet on the southern side of the suit well and the suit site highhandedly and he had also constructed RCC slab raising pillars covering this entire site. The appellant further contended that taking advantage of an ex parte injunction in O.S.No.2 of 1990, he also raised another RCC slab covering the first floor, affecting his right to deepen the suit well as well to remove silt therefrom. Referring to location of pipes laid by him for drawal of the water from this well, the appellant further stated that on account of this RCC slab in the ground floor, it would be difficult for him to remove the pipes in case of necessity and would also affect free flow of air and light.
12. The appellant further stated that the respondent filed O.S.No.113 of 1990 on the file of the Court of the learned Principal District Munsif, Srikalahasti and under the guise of an ex parte injunction therein, he had also put up a rolling shutter at the entrance of the disputed site closing the same illegally. On account of putting up of this rolling shutter at the entrance of this site, according to the appellant, the respondent has MVRJ, S.A.Nos.374 & 375 of 2000 4 converted this site into a shop room carrying on business in chemical fertilisers and that he is intending to start business in pesticides, in which event, the water in the well would get polluted. The appellant further stated that the respondent also raised level of the flooring at this site by 2 feet covering the pipelines laid by him, affecting his rights.
13. In the above circumstances, in view of his right in the well as well as the site in dispute, he requested the reliefs.
14. The case of the respondent while admitting 1/8th share in the suit Well of the appellant, which he has been in possession and enjoyment by drawing water using an electric motor, he denied other allegations set out against him. He further stated that on account of closure of well, he would be put to much hardship than the appellant, since he has been using the water from this well for drinking and domestic purpose by installing an electric motor. The respondent further contended that this litigation has been commenced on account of business rivalry. He further contended that the well in dispute was originally covered with granite stone slab to half of its circumference over which there was flooring serving as passage to his house from the main street on the west. He also stated that there was a wall, in the middle of the well over this granite slab, of 3 feet height, as a protection preventing from falling into the well by users. He further stated that when he was effecting alterations and additions to his house and constructing a room infront of it for locating fertilisers shop, the appellant requested him to sell a portion of this house adjoining on the north to enable him to expand his house, to which he did not agree.
MVRJ, S.A.Nos.374 & 375 of 2000 5
15.The respondent further contended that the appellant highhandedly demolished the granite stone slab on 29.12.1989 mid night and also the wall thereon threatening his watchman and thereupon, the appellant got constructed a wall around the well of 3 feet height, affecting right of passage to the respondent and his family members.
16. The respondent further contended that the entire site in dispute, where well is located, absolutely belonged to him and that he has every right to make constructions thereon. Referring to construction of ground floor and the first floor in this site, he denied the difficulties expressed by the appellant in use of the well for deepening or for desilting. He further contended that the well is serving five (05) families altogether in the complex raised by him and that there is also alternative facility of municipal water to serve all of them. He further contended that RCC slab put up by him is not causing any obstruction to flow of air and light and asserted that he had put up rolling shutters at the entrance of the house to avoid strangers and stray animals, entering into his premises.
17. Stating that putting up this rolling shutters would not cause any inconvenience to the appellant, which he did to safeguard his property, the respondent denied that his business in fertilisers would lead to polluting the water in the well in question. Referring to pipelines laid by the appellant from the suit well, he claimed that they are intact and they are not affected on account of the cement flooring laid by him.
18. On the pleadings in both the suits, the trial Court settled the following issues for trial:
MVRJ, S.A.Nos.374 & 375 of 2000 6 O.S.No.9 of 1990 "1. Whether the plaintiff is entitled for declaration of his 1/8th share in the suit well?
2. Whether the plaintiff is entitled for grant of mandatory injunction as prayed for?
3. Whether the plaintiff is entitled for grant of permanent injunction as prayed for?
4. To what relief?"
Additional issues settled on 08.06.1994 "1. Whether the plaintiff is entitled for declaration and permanent injunction with regard to 1/8th share in the suit site around the suit well?
2. To what relief?"
O.S.No.2 of 1990 "1. Whether the plaintiff is entitled for permanent injunction as prayed for?
2. To what relief?"
19. Common evidence was let-in in O.S.No.9 of 1990 treating it as the lead suit for both the suits. The appellant examined himself as P.W.1 and two more witnesses to support his claim, while relying on Ex.A1 to Ex.A21. The respondent examined himself as D.W.1, his predecessor-in- title as D.W.2 and one of the neighbours as D.W.3 while relying on Ex.B1 to Ex.B15 in support of his contention.
20. In these second appeals the substantial question of law at the time of admission is as follows:
"Whether the appellate Court is justified and legally acted in reversing the finding of the trial Court without taking into consideration the admission of D.Ws.1 to 3 and also construing Exs.A1 and A2?"
21. The claim of the appellant is based on purchase of the property under original of Ex.A2 sale deed dated 21.09.1976. Smt. Gandla MVRJ, S.A.Nos.374 & 375 of 2000 7 Meenamma, Wife of Sri Venkata Ramayya Chetty sold this property to the appellant. She inturn had purchased the property under the original of Ex.A1 dated 11.01.1938 from her husband. The property so purchased by her from her husband included share in the draw well with brick structure. Location of this well is specifically stated in this sale deed dated 11.01.1938, with civil road on the east, open site of Sri Murahari Singh on the south, as well as front yard on the west and open lane of Sri Murahari Singh on the north. She conveyed the same rights to the property under the sale deed dated 21.09.1976 covered by Ex.A2 to the appellant. The description of this well is given in this registered sale deed within the following boundaries:
East : Road from Poothalapattu to Naidupet South: Portion of the house of Sivaranibayamma West : Front yard of Sivaranibayamma, and North: Lane belonging to Sivaranibayamma.
1/8th share in this well is thus conferred by the vendor of the appellant to him, under this sale deed.
22. The respondent is not disputing right of the appellant to use water in the well in dispute. The location of this well is not in dispute. It is in the open site, which is to the west of the property of the respondent. Commissioners were appointed in the suits, where they filed reports along with sketches after due inspection in the presence of learned counsel for the parties. These reports gave the description of the location of this well.
23. The respondent has purchased the property claimed by him under Ex.B1 sale deed dated 04.02.1980 (Ex.A4 is its registration extract). There is a reference to the well in dispute in this sale deed as a brick structure and draw well. However, reference is made in this sale deed of MVRJ, S.A.Nos.374 & 375 of 2000 8 the right of the appellant to draw water alone from the well in question. The vendor of the respondent under this sale deed is Smt. G.Sivaranibayamma, who is referred to in the sale deed dated 21.09.1976 covered by Ex.A2. Ex.A5 is the registration extract of another sale deed dated 30.10.1980 under which the respondent had purchased the property from Sri Subrahmanyam Chetty and his sons, where there is also a specific reference that the appellant has only a right to draw water from the well in question. Nonetheless, seven (07) shares out of eight (08) in this well in favour of the respondent is not disputed by the appellant. His contention is that not only he has such share in the well but also a share in the site surrounding this well, which has been conferred to him by virtue of his title deed covered by Ex.A2 and which hitherto his predecessor-in-title were enjoying by virtue of the sale in her favour covered by Ex.A1. The contention of the appellant further is that reference to his right to draw water from the well in dispute in the sale deeds referred to above in favour of the respondent was purposely done and that such recitals are not binding on him which were brought out to prevent him from making any claim to the site surrounding this well.
24. The vendor of the respondent under the original of Ex.A4-Smt. Sivaranibayamma had purchased the property on 21.08.1958 under the original of Ex.A3 from Smt. Raajanbayamma, wife of Sri Gulabi Murahari Singh. The sale covered by Ex.A3 is not disputed.
25. This sale deed (Ex.A3) has significant effect importantly from the context of the case of the appellant to the disputed site as well as the well. The recitals in this sale deed are referring to the draw well in question and that the vendor thereunder had half share therein. There is MVRJ, S.A.Nos.374 & 375 of 2000 9 also reference to the open site infront of the above well. This open site is described as a joint site ('POTHALA JAAGA' in Telugu). This sale deed further mentioned a joint pathway on the north leading to this well. Thus, reference to the open site at this joint well as a joint property in this sale deed and also right of passage to reach this well on the north, are supporting the stand of the appellant. Therefore, what was conveyed to the vendor of the respondent under the sale deed dated 04.02.1980 (Ex.B1) was the right so acquired by her from her predecessor, namely Smt. Raajanbayamma under original of Ex.A3 sale deed. Apparently, as contended by the appellant, the respondent did not choose to have this well as well as the site infront of it, as joint property. Similarly, significant reference to the share of the appellant in the well to draw water alone in the sale deed dated 30.10.1980 covered by Ex.A5 as contended for the appellant, is an attempt on the part of the respondent as if to confine the claim of the appellant only to that extent.
26. These sale transactions did indicate that the entire properties claimed by the appellant as well as the respondent were part of joint property of Sri Venkata Ramaiah Chetty and Sri Murahari Singh, who had half share each in the suit well as well as the suit site. This admitted situation is well described in para-31 of the judgment of the trial Court. Apart from these sale transactions, in respect of the suit well and its topographical features further reference is made in the same paragraph 31, of the judgment of the trial Court. It is desirable to extract the same hereunder:
"31....... It is also admitted fact that originally a portion of the suit well was closed with a granite stone and the parapet wall was constructed in the shape of half moon in order to prevent stray cattle and men from falling into the said well. It is also admitted fact that the disputed site is east-west MVRJ, S.A.Nos.374 & 375 of 2000 10 20 feet and north-south 10 feet, that within the said site, there is round suit well, which is in between the house of the D.W.1 defendant and the main road leading to poothalapattu village. It is also admitted fact that the suit well is adjoining the wall of the D.W.1 defendant's house on the southern side and there is no space between the well and the said house. It is also admitted fact that adjoining the suit well, originally there was a room on its southern side, that the said room was demolished by the D.W.1/defendant after his purchase and converted into staircase leading to upstairs."
27. A lot of litigation ensued in between these parties in relation to this property. The respondent filed O.S.No.113 of 1990 for bare injunction on the file of the Court of the learned Principal District Munsif, Srikalahasti as well as O.S.No.18 of 1991 on the file of the Court of then Subordinate Judge, Srikalahasti for similar relief of permanent injunction against the appellant. It is undisputed that the respondent laid RCC slab over the disputed site covering the suit well and also constructed first floor thereon. Taking advantage of the ex parte injunction granted in these suits, it is the contention of the appellant that these structures were put up by the respondent. Both the suits were got dismissed by the respondent as not pressed. (Paras 33 and 34 of the judgment of the trial Court referred to these facts.)
28. The learned appellate Judge, upon considering the material held that what was conveyed by Smt. Meeramma in favour of the appellant was only a share in the well without specifying any right in the site around the well. While referring to the contents of Ex.A1 to Ex.A5, the learned appellate Judge observed that the land on the north of the well is belonging to Sri Murahari Singh and that access to the well to take water alone was provided.
29. The learned appellate Judge further observed that right to draw water from the well situated in another property is an easementary right MVRJ, S.A.Nos.374 & 375 of 2000 11 and the sharers having this right to draw water from the well need not be the owners of the land. This finding of the learned appellate Judge is without any basis. It is nobody's case that the appellant is enjoying an easementary right nor case of the parties is based on dominant or servient tenements. The learned appellate Judge also observed that the oral evidence of P.W.1 to P.W.3 and D.W.1 to D.W.4 cannot have any importance in view of the recitals in Ex.A1 to Ex.A5.
30. In the process of appreciation of evidence, the learned trial Judge also took into consideration the oral evidence let-in by the parties. The appellant as P.W.1 deposed as to nature of this well as a draw well. A pulley was put up for drawal of water at this well and D.W.2-the predecessor-in-title of the respondent stated that she got put up this pulley. It is not disputed by the parties of location of a platform around this Well.
31. The appellant got installed a motor to draw water in the year 1981 which is also admitted by the respondent as D.W.1 at the trial. To facilitate drawal of water undisputedly pipelines were got laid by the appellant. Similarly, the respondent got laid pipelines and installed a motor to meet his purpose. It appears the respondent constructed a building which has been let out to tenants and this well is one of the sources of water for all the inmates of these houses.
32. The appellant also deposed that the respondent had raised the level of the flooring around the well by about 2 ½ feet and as a result, the pipelines laid by him for drawal of water remained under this platform. Thus, he expressed his difficulty in case of need to repair the motor or these pipelines on account of the structures so laid by the respondent.
MVRJ, S.A.Nos.374 & 375 of 2000 12 Though the appellant deposed that the respondent had closed the well by placing two slabs, which are crescent shaped, the report of the commissioner, upon his visit on 13.01.1990, is that the suit well is not closed by any construction. Similarly, the learned Commissioner also observed that there is no separate sunshade as claimed by the appellant, put up by the respondent, except RCC slab over this property. These facts are not disputed and apparently these observations of the learned commissioner were not questioned at the trial by the appellant. The respondent as D.W.1 stated that there is an open space in front of the building belonging to him. He further stated that to the north of this well, there is 2 ½ feet wide space, which he was using to reach his house on the north. According to him, they were also using stone slab placed on the well to reach their house finding the above lane being narrow. This lane obviously is referable to the lane described as Sri Murahari Singh in Ex.A1 and also referred as the lane being used by the predecessor-in-title of the respondent.
33. There are certain statements elicited in cross-examination on behalf of the appellant from the respondent. While referring to purchase of the property under Ex.B1, he stated that it covered the entire suit property along with some other properties. He also stated referring to shares in this well purchased by him that all the sharers who have got right in the well have also share in the site, as seen from the sale deed executed by his vendors in his favour. He further stated in cross- examination that the disputed site relates to the well.
34. When these statements are considered, as rightly contended for the appellant by Sri S.V.Muni Reddy, learned counsel, it leaves no manner MVRJ, S.A.Nos.374 & 375 of 2000 13 of doubt that what was conveyed to the respondent was only a joint right in the well as well as the site surrounding it. It stands in consonance with the recitals in the sale deed covered by Ex.A3 dated 21.08.1958. He also admitted of laying a roof covering this entire site and the well and raising level of the floor by 2 ½ feet around the well making the pipelines laid by the appellant, coming under it. He further stated in cross-examination that he constructed a shop room over the well and the site under the assumption that he is the owner of the site around the well.
35. D.W.2-the predecessor of the respondent referring to location of this well and the property around it, stated that there is a site around this well confirming such fact.
36. The learned trial Judge considered these statements of the witnesses. Having regard to the topographical features and the structures at the suit site as well as the suit well, in para-39 of the judgment learned trial judge rejected the contention on behalf of the respondent that what was conveyed under the original of Ex.A2 to the appellant was only 1/8th share in the well and which did not cover the site in question, recording the following finding:
"39...... Admittedly, there is Hamsapadhi or platform around the suit well and the suit site is around the said platform. As rightly contended by the plaintiff's counsel, the site around the well is kept open for ingress and egress from the well and thus the open site is annexed to the suit well. If the suit site is bifurcated from the suit well, the plaintiff cannot reach the suit well. The suit site is meant for enjoyment of the well and without the suit site one cannot go to the suit well. If it is the intention of the plaintiff's vendor to sell only water right in the suit well, she would have stated as in Ex.A-2 in clear words."
37. The learned trial Judge further observed that the admissions of the respondent as D.W.1 clearly show that the suit site, which is around the suit well is annexed to it and that it cannot be separated from the MVRJ, S.A.Nos.374 & 375 of 2000 14 well. The learned trial Judge also observed that the right to take water from the joint well cannot be dissociated with the site around it and that every owner has a right in every inch of joint property while other co- owner cannot make any construction thereon to the detriment of other co-owners.
38. These observations of the learned trial Judge are correct and they stand in consonance with the ground situation as is explicit from the material on record.
39. The material on record makes out that the appellant has right to use the water from the suit well whatever the extent of his share therein. It is a draw well to which later on arrangements were made by the parties to pump out by means of electric motor for their convenience. Nonetheless, the character of the well remained as such. In order to reach this well, necessarily the appellant should have access. As already stated, the predecessors of the appellant as well as the respondent had provided for it particularly towards north by means of a passage, which was being used by Sri Murahari Singh and later by his successors-in-interest.
40. Therefore, the right so conferred, included access to this well. To have this access, there should be a right to use the site around this well. These rights cannot be considered in isolation and they are all necessary for beneficial enjoyment of this well by all the joint sharers. When this well is a common and joint property among different sharers, who were predecessors to the parties to these appeals and later for them, the site around this well cannot be appropriated by the respondent as his own property. The recitals in the sale deeds in his favour covered by Ex.A4 and Ex.A5, thus should be seen as a mischievous attempt by him to MVRJ, S.A.Nos.374 & 375 of 2000 15 get at such right for the first time, which obviously his predecessors never had thought to confine and limit.
41. Therefore, the finding recorded by the learned trial Judge in this context are very apt than what has been stated by the learned appellate Judge. The learned appellate judge did not take into consideration the statements elicited from the respondent as D.W.1 in this context nor considered the recitals in Ex.A1 to Ex.A5 in proper perspective. In fact, it is misreading of the evidence on record and improper appreciation of evidence. Thus, the learned appellate judge did not consider these aspects in right perspective and is not right in interfering with the conclusions and inferences drawn by the learned trial judge.
42. A co-sharer, as rightly observed by the learned trial Judge, cannot have on his own, the entire property for his own purpose in exclusion of other joint sharers. It is the precise situation found in this case. The respondent could not have raised structures upon this site around the well as well as the well, which are meant for common as well as beneficial enjoyment of all the sharers. Raising slabs over this well and putting up either commercial space or residential space over this site which admittedly was done by the respondent is nothing but a highhanded act demonstrative of his intentions, to usurp this common property to the detriment of the rights of the appellant.
43. The respondent cannot contend that the appellant had slept over for quite a long time in allowing him to raise such structures. The situation in this case did not depict such scenario. It was the respondent who had gone for raising these structures to his detriment and peril, even though he was fully aware that he did not have such right to do so MVRJ, S.A.Nos.374 & 375 of 2000 16 particularly in the context of the claim set up by the appellant against him in respect of the suit well as well as the site in question.
44. Therefore, the learned trial Judge is right in declaring such joint 1/8th share in the suit well as well as the site surrounding it. As a consequence, in view of such structures raised without any manner of right by the respondent and illegally, they require to be removed as was rightly ordered by the learned trial Judge. Injunctive relief was rightly confirmed by both the Courts below in the circumstances against the respondent, requested by the appellant.
45. At the same time, in the back drop of these circumstances, the learned appellate judge could not have granted relief of permanent injunction against the appellant of the nature in O.S.No.2 of 1990 by the decree and judgment in A.S.No.135 of 1996. An injunctive relief could not have been granted against the co-owner at the instance of another co- owner, which is the situation found in this case.
46. Therefore, in the light of the material and evidence on record, the common judgment of the appellate Court to the extent of setting aside the decrees and common judgment of the trial Court in granting mandatory injunction and in reversing the decree and judgment in O.S.No.2 of 1990 in favour of the respondent should be interfered with. It appears, by oversight, the learned appellate Judge did not specifically mention in the operative portion of the judgment in respect of right, title and interest claimed by the appellant against the respondent relating to the suit site and the suit well wherefor the declaratory relief granted by the learned trial Judge. However, the judgment of the appellate Court MVRJ, S.A.Nos.374 & 375 of 2000 17 reflected discussion thereon, the findings on which are now required to be interfered with.
47. Therefore, interference with the decrees and common judgment of the appellate Court is required to the extent stated above and restoring the decree and judgment of the trial Court in both the suits.
48. In the result, both the second appeals are allowed setting aside that part of the common judgment and decrees in A.S.No.137 of 1996 and A.S.No.135 of 1996 dated 17.01.2000 of the Court of the learned V Additional District Judge, Chittoor at Tirupati in setting aside mandatory injunction granted by the trial Court and dismissal of O.S.No.2 of 1990. Consequently, the decrees and common judgment of the trial Court in O.S.No.9 of 1990 and O.S.No.2 of 1990 dated 28.11.1996 stand restored. However, mandatory injunction directing removal of sunshade put up over and above the plaint schedule property as prayed in para-10 of the plaint in O.S.No.9 of 1990 is not granted and rest of the directions relating to mandatory injunction granted by the decree in O.S.No.9 of 1990 and common judgment of the trial Court shall stand restored. The respondent is directed to remove the structures within four (04) months from now. In default, the appellant shall be at liberty to take recourse to process of law moving the trial Court by execution proceedings for this purpose. In the circumstances, both the parties are directed to bear their own costs in these second appeals.
As a sequel, pending miscellaneous petitions stand closed. Interim Orders, if any, stand vacated.
_________________________ JUSTICE M.VENKATA RAMANNA Dt: 05.10.2021 RR MVRJ, S.A.Nos.374 & 375 of 2000 18 HON'BLE SRI JUSTICE M.VENKATA RAMANNA SECOND APPEAL NOS. 374 & 375 of 2000 Dt: 05.10.2021 RR