Unsuccessful vs Rajesh Goyal1
2022 Latest Caselaw 5663 AP

        HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               SECOND APPEAL No.189 of 2019

JUDGMENT:-

      Unsuccessful plaintiffs filed the above second appeal

against the judgment and decree, dated 04.02.2019 passed in

A.S.No.14 of 2015 on the file of learned X Additional District

Judge, Narsapur, confirming the judgment and decree, dated

30.04.2015 passed in O.S.No.110 of 2005.

2.    The parties to the appeal shall be referred to as per their

status in O.S.No.110 of 2005.

3.    Plaintiffs filed suit for permanent injunction restraining

the defendants and their men from closing bode shown as

MNTU or from interfering with the peaceful drawing of water by

the plaintiffs from said bode.

4.    In the plaint, it was contended inter alia that plaintiffs are

sisters and defendants are husband and wife; that plaintiff No.1

is absolute owner of item Nos.1 and 2 of the plaint schedule

property and plaintiff No.2 is the absolute owner of item Nos.3

to 5 of the plaint schedule property; that to the North of the

plaint schedule property defendants are having about Ac.8-00

cents of wet land having purchased the same from Maddimsetti

people; that to the North of the defendants' land, irrigation bode

is running from East to West; that said irrigation bode flows

from Eastern side irrigation canal; that the irrigation bode

situated on the North side of the defendants' land is running

from North to South up to the plaint schedule property; that
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plaintiffs have been drawing water through MNTU bode, which

is in existence up to the plaint schedule property; that except

the said bode there is no source for irrigating the land of the

plaintiffs; that the bode, which is coming from North to South

from the Northern irrigation bode up to the plaint schedule

property is shown as MNTU; that after purchase of the property

by the defendants, defendants have been proclaiming that they

would close bode which is shown as MNTU; that if the

defendants close the said MNTU, lands of the plaintiffs will

become useless; that about twenty days back, defendants along

with their farm servant and others high-handedly came to the

said bode and objected plaintiffs' father for effecting repairs to

the irrigation bode and further declared that they would close

the said bode immediately and that father of the plaintiffs and

neighbouring ryots objected the high-handed behaviour of the

defendants and their men and filed the suit.

5.    Defendants filed written statement and contended inter

alia that they are having wet land to an extent of Ac.9-22 cents

towards Northern side of the land which is being cultivated by

father of plaintiffs; that there is irrigation bode running from

East to West and it is having its source from Eastern side

irrigation canal, which is running from Northern side; that the

bode which has been described as MNTU in the plaint plan is

situated in the middle of the defendants' land from North to

South; that the bode was formed by the defendants after

purchasing their lands, to maintain water level as their lands
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are not in uniform level; that the said bode is also being used to

let out drain water during heavy rainfall; that said bode was not

in existence prior to purchase of lands by the defendants; that

plaintiffs got authorized water source from pipe No.26 of the

Irrigation Department through irrigation channel, situated on

the Eastern side of their land; that the lands of defendants are

also to be irrigated through authroized source of water from

channel situated on the Eastern side of land belonging to the

plaintiffs as well as the defendants, beyond their coconut trees

bunds; that the irrigation canal is also called as Chandaparru

canal; that Irrigation Department provided two pipes and

numbered them as 25 and 26; that defendants have to draw

irrigation water through pipe No.25 whereas plaintiffs have to

draw irrigation water from pipe No.26; that Northern side of

Chandaparru canal/channel is exclusively intended to irrigate

the lands situated on the Western side of said canal; that to let

out excess water from their lands, defendants arranged a pipe

into Northern side Chandaparru canal/channel, but not to take

irrigation water; that the defendants were also cautioned by the

Revenue and Irrigation Department to close the vent provided

into Chandaparru canal/channel; that plaintiffs or their men

never used MNTU bode at any point of time; that the plaintiffs

had no prescriptive or easement right over MNTU bode; that

defendant No.1 is busy medical practitioner and defendant No.2

is housewife; that plaintiffs' father used to threatened the farm

servants and that suit for mere relief of injunction without
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seeking relief of declaration of right over MNTU bode is not

tenable and eventually prayed to dismiss the suit.

6.      Basing on the pleadings of the parties, trial Court framed

the following issues:

     1.

Whether the plaint plan is true and correct?

2. Whether the plaintiffs have got right over MNTU bode of

plaint plan and have been using the same for irrigating

their lands?

3. Whether the defendants are absolute owners of the MNTU

bode of plaint plan?

4. Whether this suit for Permanent Injunction is

maintainable?

5. Whether the plaintiffs are entitled to the relief of

Permanent Injunction as prayed for?

6. Whether the plaintiffs are entitled to the decree as prayed

for?

7. To what relief?

7. On behalf of the plaintiffs, husband of plaintiff No.1 was

examined as PW1 and got examined PWs2 to 7. Exs.A1 to A6

was marked. On behalf of the defendants, defendant No.1

examined himself as DW1 and got examined DWs2 and 3.

Exs.B1 to B10 were marked. Ex.X1, village plan and Exs.C1 to

C4 were also marked.

8. The trial Court on consideration of oral and documentary

evidence, by judgment and decree, dated 30.04.2015 dismissed

the suit. Against the judgement and decree, plaintiffs preferred

A.S.No.14 of 2015 on the file of Court of X Additional District

Judge, Narsapur. Lower Appellate Court being the final fact

finding Court, after framing necessary points for consideration,

dismissed the appeal vide judgment and decree, dated

04.02.2019. Aggrieved by the same, the above second appeal is

preferred.

9. Heard Sri E.V.V.S.Ravi Kumar, learned counsel for the

appellants.

10. Learned counsel for the plaintiffs would contend that

plaintiffs proved the existence of MNTU bode since times

immemorial. He contends that defendants are entitled to draw

water through MNTU in view of easement of necessity and the

defendants being lower riparian, for irrigation purpose. He

further contends that the report of learned Advocate

Commissioner shows the existence of MNTU bode and drawing

of water by the plaintiffs from the said bode. He submits that in

the absence of any recital in Exs.B1 and B2 about use of MNTU

bode by the plaintiffs, that itself does not bar the plaintiffs from

claiming easement of necessity to draw water for the purpose of

cultivation.

In view of the contentions raised by the learned counsel for

the appellants, the following substantial questions of law may

arise for consideration:

1. Whether the plaintiffs proved easement of necessity for

drawing water being lower riparian?

2. Whether the suit for mere injunction without asking for

declaration of easement of necessity is maintainable?

11. Before delving into the matter, since the appeal is filed

under Section 100 CPC, this Court must see the scope of

Section 100 of CPC.

12. In Leela Soni vs. Rajesh Goyal1, the Hon'ble Supreme

Court held as under:

It will be apt to refer to Section 103 of C.P.C. which enables the High Court to determine the issues of fact:

"103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) which has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."

The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial court as well as the Lower Appellate Court or by the Lower Appellate Court; or (2) when both the trial court as well as the Appellate Court or the Lower Appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C."

13. Ishwasdas Jain vs. Sohan lal2 the Hon'ble Supreme

Court held that it is essential for the High Court to formulate a

2001 (7) SCC 494

2000 (1) SCC 434

substantial question of law under section 100 CPC, after the

1976 amendment and it is not permissible to reverse the

judgment of the first appellate Court without doing so.

14. Further the Hon'ble Apex Court in Hero Vinoth Vs.

Seshammal3, held thus:

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts

AIR 2009 SC 1481

and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."

15. In Nazir Mohamed vs. Kamala and Others4, the Hon'ble

Apex Court held that formulation of substantial question of law

is mandatory and the mere reference to the ground mentioned

2020 (19) SCC 57

in memorandum of second appeal cannot satisfy the mandate of

Section 100 CPC.

16. In the light of the expressions of Hon'ble Apex Court on

the scope of interference of the High Court in second appeal,

this Court while exercising jurisdiction under Section 100 of the

CPC must confine to the substantial question of law involved in

the appeal. This Court cannot re-appreciate the evidence and

interfere with the concurrent findings of the Courts below where

the Courts below have exercised the discretion judicially.

Further the existence of substantial question of law is the sine

qua non for the exercise of jurisdiction. This Court cannot

substantiate its own opinion unless the findings of the Courts

are manifestly perverse and contrary to the evidence on record.

17. As seen from the oral and documentary evidence, there is

no dispute with regard to title of either of the parties. Plaintiffs

placed reliance on Exs.A1 to A3 and defendants placed reliance

on Exs.B1 and B2. It is also admitted fact that lands of the

defendants are located on the Northern side of the plaintiffs'

land and there is irrigation bode on the Northern side of

defendants' land. It is also admitted fact that there is an

irrigation channel on Eastern side of lands of both the plaintiffs

and the defendants. It is also admitted fact that land of

plaintiffs' sister is situated by the side of lands of the plaintiffs

on the Eastern side and further lands of father of the plaintiffs

are also located there. It is also admitted fact that MNTU bode

existed in the lands of the defendants.

18. Whether the plaintiffs are having right to draw water from

MNTU bode and that it is only source of irrigation is to be

considered in the light of the pleadings and evidence let in by

the plaintiffs.

19. Plaintiffs having filed suit for injunction have to establish

prima facie that they are having right either permissive/

prescriptive or by easement of necessity to draw water through

MNTU. However, going by the pleadings and evidence, plaintiffs

are not claiming right of easement to draw water from MNTU

bode. They are claiming that they have right to draw water as a

matter of their right and it was contended that they have been

enjoying rights since times immemorial.

20. However, in support of said contention, no cogent evidence

was placed by the plaintiffs. PW1, husband of plaintiff No.1

deposed that nothing was mentioned in Ex.A1 about right to

draw water and there is no recital in Ex.A2 with regard to

drawing of water to the lands of the defendants. He also deposed

that nothing was mentioned in Ex.A3 about irrigation facility on

the Northern side and further deposed that he did not make any

enquiry with his father-in-law about irrigation source to their

lands.

21. The evidence of PW2, husband of plaintiff No.2 is also in

similar lines. In fact he deposed that the document of title of his

wife does not specify from which side they have to draw water.

22. PW3, father of the plaintiffs also did not depose with

regard to their right to draw water from MNTU bode. Though

vendor of the defendants was examined as PW5 in support of

plaintiffs' case, in his cross-examination, it was elicited that

nothing was mentioned in Exs.B1 and B2 qua drawing water

from MNTU bode as claimed by the plaintiffs. In fact, in his

cross-examination, it was also elicited that the link document

does not contain such arrangement. PW5 admitted that they

never drew water from Chandaparru canal.

23. On the other hand, the specific case of the defendants is

that after their purchase of the lands, they arranged MNTU bode

to cultivate their lands since their lands are uneven within their

fields. Thus, plaintiffs failed to prove that they have right to

draw water through MNTU bode of the plaint schedule and have

been using the same from times immemorial.

24. Plaintiffs further pleaded that MNTU bode is the only

source of irrigation to their lands and they are drawing water

through said bode. However, PWs1 to 3 pleaded ignorance about

source of irrigation and drawing of water through MNTU bode to

their lands. In the absence of any right to draw water through

MNTU bode for their agricultural operations, plaintiffs cannot

maintain suit for injunction. Plaintiffs also pleaded that MNTU

irrigation bode is the only source of irrigation to their lands.

However, as per the evidence available on record, there is an

irrigation bode on the Eastern side of lands of plaintiffs and

defendants. PW2 also deposed that his father-in-law and

defendants have been getting water from Eastern Irrigation

Channel through common gandi. PW3 deposed that he is getting

water to his land through Eastern side Canal and deposed that

there is common bode. PW7, Advocate Commissioner deposed

that there is irrigation bode on the Eastern side of plaint

schedule property.

25. The evidence on record further discloses that plaint

schedule land and lands of S.V.L. Bhavani and Varalkshmi and

PW3 and land of the defendants originally belonged to Repaka

Reddaiah. Father of PW3, Mandela Kondala Rayudu purchased

part of the schedule property and other part lands were

purchased by others. None of the documents relied on by the

plaintiffs or defendants reveal about existence of either MNTU

bode or about irrigation source or right of drawing water to

these lands. The evidence of DWs2 and 3 coupled with Exs.B9

and B10 and X1 reveals that lands in R.S.No.21 of Digamarru

village are being irrigated from pipe No.26. Admittedly plaint

schedule lands are situated in R.S.No.21 of Digamarru Village.

26. Apart from the above, going by the report of learned

Advocate Commissioner, it is clear that there is no flow of water

from MNTU bode to the lands of the plaintiffs at the time of his

inspection. His evidence is clear that plaintiffs got alternative

source of irrigation to cultivate their lands. Thus, from the

above, it is clear that plaintiffs failed to prove easement of

necessity of drawing water exclusively from MNTU bode to

cultivate their lands. Therefore, the suit filed by plaintiffs for

injunction as stated supra, is not maintainable.

27. The findings of fact recorded by the Courts below are

based on evidence. Neither the findings are perverse nor

misconstruction of documents or misreading of evidence. No

question of law much less substantial question of law is involved

in the second appeal. Thus, this Court opines that the findings

recorded by the Courts below do not call for interference of this

Court under Section 100 CPC and thus, second appeal is liable

to be dismissed.

28. Accordingly, this second appeal is dismissed with costs at

the stage of admission.

As a sequel, pending miscellaneous petitions, if any, shall stand closed.

_______________________________ JUSTICE SUBBA REDDY SATTI Date : 29.08.2022 IKN

HON'BLE SRI JUSTICE SUBBA REDDY SATTI

SECOND APPEAL No.189 of 2019 Date :29.08.2022

IKN