Gurram Kondalarao vs Gurram Venkataramanamma Anr
2023 Latest Caselaw 5257 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

                 SECOND APPEAL No.848 of 2000

JUDGMENT:

A defendant who lost his defence in both the Courts below

preferred this Second Appeal under Section 100 C.P.C.

Respondent No.1 is the plaintiff. Respondent No.2 is defendant

No.2 in the suit.

2. O.S.No.11 of 1986 was filed by sole plaintiff as against

defendant Nos.1 and 2. ABCD marked bodi (channel)

mentioned in the plaint plan was removed by the defendants.

For its restoration plaintiff filed the said suit. She prayed for a

mandatory injunction for its restoration. She also prayed for a

permanent injunction restraining the defendants from ever

interfering with the bodi after its restoration. The suit was

contested before learned Principal District Munsif, Amalapuram.

The learned trial Court settled the following issues for trial:

1) Whether the plaintiff is entitled for the declaration and injunction as prayed for?

2) To what relief?

(3) On behalf of the plaintiff, PWs.1 to 6 were examined and

Exs.A.1 to A.2 were marked. On behalf of the defendants,

Dr. VRKS, J S.A.No.848 of 2000

DWs.1 to 4 were examined and no documentary evidence was

adduced.

(4) By a judgment dated 23.04.1992 the learned trial Court

agreed with the case of the plaintiff and decreed the suit

directing the defendants to restore ABCD marked bodi shown in

the plaint plan within two months from the date of its judgment.

Plaintiff was awarded costs of the suit.

(5) Aggrieved by the said judgment both the defendants

preferred A.S.No.45 of 1992 before the learned Senior Civil

Judge, Amalapuram. Before the said appeal was disposed the

plaintiff/decree holder got the decree executed and ABCD

marked bodi was restored to its original position. On hearing

learned counsel on both sides, the learned Senior Civil Judge,

framed the following points for his consideration:

1) Whether the lower Court committed error in coming to the conclusion that the plaintiff is entitled to the relief of mandatory injunction and permanent injunction prayed for?

2) To what relief?

Dr. VRKS, J S.A.No.848 of 2000

6. After analyzing the entire evidence on record, the learned

first appellate Court agreed with the findings of facts recorded

by the trial Court, agreed with its reasons and agreed with its

conclusions and as a consequence it confirmed the impugned

judgment and dismissed the appeal.

7. Defendant No.1 alone is in this appeal.

8. On 12.10.2000 a learned Judge of this Court admitted the

Second Appeal on formulating the following substantial

questions of law:

a) Whether the Courts below are right in granting a decree for mandatory injunction taking into consideration of the weakness of defence?

b) Whether the point involved in the appeal is covered by the principle laid down in AIR 1976 Delhi 175 and AIR 1953 H.P.23?

c) Whether the decree passed by the Courts below is right when an alternative source of water for irrigation is available?

9. Sri Siva Nagarjuna, the learned counsel representing

Sri T.V.S.Prabhakar Rao, the learned counsel for appellant

submitted arguments.

Dr. VRKS, J S.A.No.848 of 2000

10. For respondent No.1, Sri M.Lakshmana Sarma entered

appearance. However, no arguments were submitted. For

respondent No.2, none entered appearance.

11. On considering the arguments of the learned counsel for

appellant and on considering the entire material on record, the

following aspects are to be noticed:

In R.S.No.523/2 there is Ac.1.02 cents of land for the

plaintiff. On east and on west of this land the lands owned and

possessed by defendants situate. For the above referred Ac.1.02

cents of land on the western side there is ABCD marked bodi

which is in a length of 25 meters and width of one meter. For

this bodi towards north and towards south the lands of

defendants situate. In other words, these lands are to the west

of Ac.1.02 cents of land of plaintiff. The case set out in the

plaint raises the question of "easement of necessity". Averments

in the plaint are to the effect that the father-in-law of the

plaintiff and grandfather of the defendants were brothers.

Properties were succeeded and in the process husband of the

plaintiff succeeded and on his death plaintiff succeeded the

properties. One such property is Ac.1.02 cents of land in

Dr. VRKS, J S.A.No.848 of 2000

R.S.No.523/2. Plaint also alleges about partition of properties

among ancestors. The allegation was that the defendants

removed this bodi and thereby prevented the plaintiff from

cultivating the lands and as a consequence of it lands of

plaintiff became fallow. That forced the plaintiff to sue the

defendants. In their written statement defendants contended

that the claim of the plaintiff based on easement of necessity is

not maintainable since plaintiff has source of water for her land

from the east where there is Yerukalavari Bodi and from the

north where there is another source of water. They contended

absence of any bodi.

12. On considering the entire evidence on record both the

Courts below recorded a finding that the lands of both parties

originally belonged to common ancestors and over a period of

time there were inheritance and partitions and all these years

for over half a century these lands were irrigated using the

disputed ABCD bodi. They considered advocate commissioner's

report and read it in the context of oral evidence brought on

record and held that there was clear proof of removal of this

bodi by the defendants. The alternative sources of water

Dr. VRKS, J S.A.No.848 of 2000

mentioned by the defendants were found to be irrelevant. It is

in those circumstances both the Courts granted the suit reliefs.

13. The argument of the learned counsel for appellant is that

the Courts below granted the relief based on the weaknesses of

defendants. Having considered the material on record this

Court finds no merit in this contention. Bothe the Courts below

recorded very elaborate judgments. I have gone through them.

On each of the disputed facts they considered the evidence of

each witness and then reached to conclusions. Existence of

bodi was found on facts and its removal was also found on

facts. While considering the facts every Court was entitled to

consider the evidence let in by both sides. Therefore, Courts

below acted in accordance with law. Hence, this contention of

appellant that the conclusions were reached based on the

weaknesses of the defendants is incorrect and thus is negatived.

14. The contention of the learned counsel for appellant is that

while alternative sources of water were available for the plaintiff

it is incorrect to grant the relief. Even this submission has no

merit. Where one property is severed from another property

either in possession, or in ownership, or in both, by a transfer,

Dr. VRKS, J S.A.No.848 of 2000

bequest, or partition, or by operation of law, and these two are

so relatively situated that the one cannot be enjoyed without the

exercise of a particular privilege such privilege is called

easement of necessity. Section 13 of the Easements Act, 1882

provides for such easements of necessity and quasi easements.

On evidence and on construction of pleadings on both sides,

both the Courts below recorded that for parties on both sides

ancestors were common and properties came to them through

them and in the process there was division of properties. When

the claim of the plaintiff is read in the context of the above facts,

it has emerged clearly that earlier the common owner had

utilized this disputed bodi as a water source for all the lands

and when the successors emerged over a period of time the

same continued. Thus, the case pleaded in the plaint about

right of easement of necessity is absolutely correct and acting

upon that Courts below rightly granted mandatory injunction

for restoration of the bodi. The contention of appellant that

there is another alternative source of water is no ground to

prevent respondent No.1/plaintiff from exercise of her right of

easement. Appellant has not shown any facts to think about

extinction of easement in terms of Section 41 of the Easements

Dr. VRKS, J S.A.No.848 of 2000

Act and has not raised any legal question about application of

that principle in cases of easement of necessity governed by

Section 13 of the Easements Act. Be it noted as mentioned

earlier the bodi was also restored to its original position through

process of Court. On the cited rulings no argument about their

applicability or relevance is argued in this appeal. The

defendants have preferred not only the first appeal but also

preferred the second appeal without any merit. It is in these

circumstances the contentions of appellant have become more

academic in nature than real. In these circumstances, all the

substantial questions of law formulated are held against the

appellant.

15. In the result, this Second Appeal is dismissed. As a

consequence, the impugned judgment dated 30.07.1999 of

learned Senior Civil Judge, Amalapuram in A.S.No.45 of 1992

stands confirmed. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 02.11.2023 Ivd

Dr. VRKS, J S.A.No.848 of 2000

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

SECOND APPEAL No.848 of 2000

Date: 02.11.2023

Ivd