Andhra Pradesh High Court - Amravati

The vs Unknown on 13 December, 2021

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

                    SECOND APPEAL No. 2 of 2021

JUDGMENT :

The plaintiff is the appellant. The respondent was the defendant.

2. The appellant laid the suit against the respondent to grant a

decree for permanent injunction restraining him from interfering with

portion of 'BODE' (supply channel) alleged to be located in R.S.No.36/5A

of Tatipaka village in East Godavari District.

3. The appellant is the owner of lands in R.S.No.335/2 and

R.S.No.348/10 in Pedalanka, H/o. Doddipatla in West Godavari District. An

extent of Ac.0-06 cents in R.S.No.36/5 of Tatipaka referred to above

belonged to the respondent.

4. The location of Bode (supply channel) and the geographical

feature surrounding it are of significance in this case.

5. A plan was filed along with the plaint stated to furnish the

location of this 'Bode' (supply channel) as well as physical or geographical

features surrounding it. It has to be clarified now itself that the

respondent did not admit this plan. Even P.W.1- Sri M.Surya Prabhakara

Rao-the husband of the appellant stated in his deposition that it is not

correct.

6. 'X Y' line in the plaint plan is depicting the boundary between

East Godavari district and West Godavari district. To the east of the land

belonging to the respondent, there is left bank of Vasishta, which is a

branch of river Godavari. Further east of it there is Rajolu-Gannavaram

main irrigation channel.

MVRJ, S.A.No.2 of 2021

7. It is the contention of the appellant that there are cement head

walls shown as 'P Q' in the plaint plan at Vasishta embankment and in the

course of formation of irrigation system somewhere around 1860, a

cement pipe was laid at this place, under this embankment between

Tatipaka Matham and Pedalada lock, to draw water from Rajolu-

Gannavaram main canal, to supply water to the lands west of it through

'Bode' (supply channel) in question, which is running though R.S.No.36/5A

and further into their land and of others. Thus, it is the contention of the

appellant that for the purpose of drawing water from the above main

canal, this 'Bode' (supply channel) was being used since time immemorial

continuously including during the occupation of these lands by her

predecessors-in-title and thus, they have a customary right. It is also the

contention of the appellant that the revenue authorities of both East and

West Godavari districts have recognised this customary right.

8. The appellant complained that the respondent who purchased

about Ac.0-06 cents in R.S.No.36/5A from the original owner Sri Bikkina

Venkata Chalam Babu began to proclaim that he would close away this

'Bode' (Supply channel) to the detriment of herself and other owners

lands to its west taking advantage of the political influence his vendor was

wielding then.

9. Thus stating, the appellant requested to injunct the respondent

permanently from doing so.

10. The respondent resisted the claim of the appellant mainly

contending that the alleged 'Bode' (supply channel) in his land in

R.S.No.36/5A never existed while disputing the physical features sought to MVRJ, S.A.No.2 of 2021

be presented by the appellant, surrounding his land. Further contention of

the respondent is that the land purchased by him which is dry in nature, is

at a low level by about 6 ft. from other surrounding lands where there is a

coconut garden. It is also his contention that this land is used for

construction of houses. He also contended that the Government records

did not reveal or reflect existence of this 'Bode' (supply channel)

particularly in the concerned Ayacut Register. Contending that his vendor

Sri Bikkina Venkata Chalam Babu and irrigation as well as revenue

authorities are necessary and proper parties and that this suit is

engineered by the appellant since he failed to purchase the land in

R.S.No.36/5, the respondent requested to reject such claim.

11. Basing on the pleadings, the trial Court settled the following

issues:

"1. Whether there is any Bode as pleaded by the plaintiff?

2. Whether the plaintiff is entitled for permanent injunction as prayed for?

3. To what relief?"

12. At the trial, the husband of the appellant-Sri Surya Prakash Rao

was examined as P.W.1 and four other witnesses while relying on Ex.A1 to

Ex.A14 as well as Ex.C1 and Ex.C2 in support of their contention. The

respondent examined himself as D.W.1 and two other witnesses, while

relying on Ex.B1 to Ex.B8 in support of his contention.

13. On consideration of the material and evidence, the learned trial

Judge rejected the contention of the appellant leading to dismissal of the

suit.

MVRJ, S.A.No.2 of 2021

14. The appeal preferred by the appellant was also dismissed

confirming the decree and judgment of the trial Court.

15. In these circumstances, this second appeal is presented.

16. Sri C.Venkaiah, learned counsel for the appellant and Sri

T.V.P.Sai Vihari, learned counsel for the respondent, addressed

arguments.

17. Both the learned counsel agreed to address final arguments at

the stage of admission itself having regard to the nature of the dispute

and hence upon hearing them, this second appeal is now being disposed

of.

18. The following are the substantial questions of law set out in the

memorandum of appeal on behalf of the appellant:

"1. Whether the Courts below are excepted under law now, in insisting proof beyond doubt as in criminal case ignoring the preponderance of probabilities and circumstances of the case and documentary evidence is a civil cases such as this case?

2. Whether the Courts below properly appreciated the evidence on record or not?

3. Whether the decrees and judgments of Courts below are perverse or not and contrary to the documentary evidence or not?

4. Whether the appellate Court is justified in dismissing the appeal by confirming the decree of the trial Court in O.S.No.22 of 2012?

5. Whether the Courts below are justified in relying on some bits of oral evidence misconstruing the recitals of documents available on record which itself is a legal aspect?"

19. These questions raised by the appellant predominantly relate

to appreciation of evidence by both the Courts below and the process of MVRJ, S.A.No.2 of 2021

drawing conclusions or inferences, which the appellant has challenged in

this second appeal.

20. The appellant and her husband Sri M.Surya Prabhakara Rao

were practicing Advocates at Eluru. The nature of acquisition and holding

on the lands in R.S.No.335/2 and 348/10 at Pedalanka village, H/o.

Doddipatla under Ex.A1, Ex.A2 and Ex.A4 sale deeds in favour of the

appellant dated 09.03.1978, 09.03.1978 and 24.04.1995 respectively and

Ex.A3 sale deed dated 09.03.1978 are not disputed. Similarly, the title

deeds of the respondent are Ex.B1 to Ex.B3 sale deeds dated 28.01.1993,

10.04.2004 and 13.02.2012 respectively. The respondent had purchased

Ac.0-06 cents in R.S.No.36/5A under Ex.B3 sale deed. They are also not

disputed. Though these lands are dry in nature it appears that they are

part of Godavari irrigation system.

21. Location of Vasishta branch of river Godavari, Rajolu-

Gannavaram main canal and the land of the respondent in R.S.No.36/5A

shown in the plaint plan appear as are available on the ground. A

commissioner was appointed during trial in this case, who was examined

as P.W.5-Sri Y.S.S.N.Naidu on behal of the appellant. His plan in Ex.C2 is

also similar in depicting their location. The cement head walls shown as 'P

Q' in the plaint plan is also reflected in Ex.C2-commissioner plan.

22. These two plans show as if the lands claimed by the appellant

are to the immediate west of the land of the respondent.

23. However, the evidence on record belies this depiction. P.W.1

categorically admitted that there is a drain to the east of the land of the

appellant and which is not shown in the plaint plan. Therefore, he stated MVRJ, S.A.No.2 of 2021

that the plaint plan is not correct. Suggestion to him on behalf of the

respondent is that the width of this drain is 80 mts. Evidence was also

brought out on behalf of the respondents that it is 220 links as seen from

the deposition of D.W.1, namely the respondent and D.W.3.

24. Ex.A11 is a registered sale deed dated 30.05.1994 in favour of

Sri Meka Krishna Kishore, Son of the appellant and P.W.1. Location of the

land covered by Ex.A11 in Doddipatla in R.S.No.336/3 and 337 in an

extent of Ac.2-30 cents also makes out that this land is located in between

the land of the appellant and that of the respondent. Eastern boundary of

the land covered by Ex.A11 is the land of the appellant and others and on

the west of this land there is land of Sri Bikkina Narayana Murthy and

others, a part of which was purchased under Ex.B3 by the respondent.

25. As seen from the diglots in Ex.A12 and Ex.B6, S.No.336 and

S.No.337 of Ac.2-94 cents and Ac.2-14 cents respectively, were part of

river Godavari. It appears from the evidence on record particularly

through D.W.1 to D.W.3, parts of the same were assigned for agricultural

purpose or otherwise. As deposed by D.W.1, the drain to the west of his

land in fact was a branch of the river Godavari.

26. The land covered by Ex.A11 is also stated by him being part of

this branch of river Godavari and it was suggested to him that Sri Bobba

Suryana Narayana-the vendor of Ex.A11 was in its occupation. Therefore,

not only the drain but also the land covered by Ex.A11 as well as others

who were issued pattas, are located in between the land of the

respondent and other lands to the west of this drain, including that of the

appellant.

MVRJ, S.A.No.2 of 2021

27. Ex.A1 to Ex.A4 title deeds of the appellant also show this drain

as the eastern boundary of respective lands acquired by the appellant.

28. Location of 'Bode' (supply channel) in the lands covered by

Ex.A1 to Ex.A4 is a part of their recitals. In Ex.A4, the specific recital is

that the land covered by it has a 'Bode' (supply channel) from Rajolu-

Gannavaram canal and in which the beneficiary thereunder has a right to

draw water using a motor. In Ex.A14 sale deed the recitals are that from

'Bode' originating from Rajolu-Gannavaram canal, drawal of water for

irrigation is by means of a direct pipe. It is described as a customary right

for the purchaser thereunder.

29. It is the specific contention of the appellant that a cement pipe

is located below the embankment of the river at 'P Q' head walls

connecting to this Bode (supply channel) which is running east to west in

the land of the respondent that further leads to her land and that of

others. The head walls 'P Q' are described in the plan as a culvert.

Necessity to raise a culvert on embankment, is difficult to accept as rightly

contended for the respondent and it appears that these walls are in the

nature of revetments to strengthen the embankment as such.

30. The appellant relied on Ex.C1 report of the commissioner in

this context. The learned commissioner visited this disputed site on

14.03.2012 and while recording the physical features of this location,

stated that a cement pipe underneath the embankment appeared to be

available. Ex.C1 further reflected that the learned commissioner got dug

a pit on the west of this embankment to measure the dimensions of this

pipe, which attempt, however, was not successful on account of gushing MVRJ, S.A.No.2 of 2021

out of water along with mud and clay. He observed that 'Bode' (supply

channel) is in this land in R.S.No.36/5A and leading to the land of the

appellant and others.

31. As P.W.5, in cross-examination he stated that the pipe was not

visible on the western side of the river embankment i.e. to the east of the

land of the respondent. He did not find any shutters at the place where

this pipe is said to open, since he did not find any provision for such

purpose.

32. Learned commissioner did not refer location of the drain in

between the land of the respondent and that of the appellant in Ex.C1

report nor in Ex.C2 plan. This circumstance is sufficient to question the

nature of observations of the learned commissioner and to hold that he

did not record the existing physical features on the ground correctly

including the land covered by Ex.A4. This reason is sufficient to reject

Ex.C1 and Ex.C2 and also the testimony of P.W.5. The report thus became

unreliable and both the Courts below rightly did not attach any

significance to the report or the version of P.W.5.

33. In order to draw water from Rajolu-Gannavaram canal,

necessarily there should be a provision or arrangement like a pipeline that

should run through and across the embankment to the west of this canal.

In the absence of any such provision either observed by the learned

commissioner and when the evidence of P.W.1 is that he did not have any

personal knowledge of it, the inference to draw is that such fact is not

established. P.W.3-ex-karanam though deposed in this context, it is not

making out that there was facility like pipeline passing through these two MVRJ, S.A.No.2 of 2021

head walls 'P Q' reaching the alleged 'Bode' (supply channel) in the land of

the respondent.

34. If at all there was any such arrangement for drawal of water

from Rojolu-Gannavaram canal, it should necessarily be mentioned or

recorded in the revenue records. An Ayacut register relating to supply of

water to various lands in the village is also maintained.This Ayacut

channel, running from 'PQ' head walls through the lands of the

respondent and towards the land of the appellant and others. P.W.1 also

deposed that there was a regulatory apparatus at this point to control the

release of water maintained by the irrigation department. No documentary

proof was adduced at the trial in this regard.

35. Therefore, the version of P.W.3- Ex-Karanam now sought to be

relied on for the appellant that the revenue records show location of this

'Bode' as a source of supply of water to the lands of the appellant and

others, is not true.

36. P.W.2 is an interested witness in the appellant, since he is

looking after her lands. P.W.4 is only scribe of Ex.A14 whose testimony

did not bear relevance in this respect.

37. Thus, as rightly observed by both the Courts below, there is

only testimony of P.W.1 on record in this regard. It is highly interested

and is not at all supported by any other material including the

documentary evidence.

38. Sri C.Venkaiah, learned counsel for the appellant, strenuously

contended that the oral and documentary evidence on record established MVRJ, S.A.No.2 of 2021

that the Bode (supply channel) in the land of the respondent is a facility

used as a matter of custom by all the farmers entitled to and there cannot

be any question as to cessation or extinction of such customary easement

in terms of the Easements Act and that its continuance has to be

presumed and inferred, bearing in mind the purpose for which it is being

used.

39. In support of his contention, Sri C.Venkaiah, learned counsel for

the appellant, replied on Hero Vinoth (minor) v. Seshammal,1 with

reference to Sections 13 and 41 of the Indian Easements Act in case of an

easement by grant. Relevant observations are in paras-28 and 29. They

are:

"28. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi-easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute; in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be recognised and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13.

29. An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement

. AIR 2006 SC 2234 MVRJ, S.A.No.2 of 2021

cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognised in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case."

40. When there is no proof of 'Bode' (supply channel) in the land

of the respondent being used as a source of irrigation to the lands of the

plaintiffs and others to the further west, question of treating it as a

customary easement cannot arise.

41. Further, it is pertinent to consider possibility of extension of

this Bode (supply channel) to the lands of the appellant and others having

regard to its geographical location. Now it is established that there is a

drain otherwise a branch of river Godavari in between the land of the

respondent and other lands to its west including that of the appellant. The

entire case of the appellant is silent in this respect and it is not explained

if this 'Bode' (supply channel) is continuing to run through this drain or

any such facility is available on the ground passing through to the river

bed or that of the drain. Thus intervention of this drain completely rules

out possibility of 'Bode' (supply channel) in the land of the respondent and

to continue to the west including into the lands of the appellant and

others.

42. This material factor has been grossly suppressed by the

appellant, which has effect in considering the relief of permanent MVRJ, S.A.No.2 of 2021

injunction, which is discretionary in nature, as rightly by the learned trial

judge.

43. Another contention on behalf of the appellant by Sri

C.Venkaiah, learned counsel is that when the report of the commissioner

and Ex.A14 are not properly considered, to the extent of their contents, a

substantial question of law is made out in terms of Section 100 CPC

requiring this matter to consider. Para-16 of the above ruling is relied on

by the learned counsel for the appellant in this respect. It is extracted

hereunder:

"16. It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 CPC. If a document creating an easement by grant is construed as an "easement of necessity" thereby materially affecting the decision in the case, certainly it gives rise to a substantial question of law."

44. Both the Courts below considered the material on record in

right perspective. Neither report of the commissioner nor Ex.A14 were

misconstrued. Rightly the report of the commissioner was not given due

importance by both the Courts below and now the finding in this

judgment is that it requires rejection. Ex.A14 sale deed did not advance

the case of the appellant in any manner. Mere reference to 'Bode' (supply

chnnel) alleged to be leading from river Godavari either in Ex.A14 sale

deed or Ex.A4 gift deed without any reference to the course it takes

through the land of the respondent, cannot lead to conclude that there

existed an easement, making out a custom. There is no misreading or

misconstruction of these documents by both the Courts below.

MVRJ, S.A.No.2 of 2021