Bombay High Court
Shri Hariba Arjuna Karande And ... vs Shri Ramu Kondi Ghadge And Others on 5 June, 2017
Bench: S.C. Gupte
sg 1/5 sa647-94.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.647 OF 1994
Shri Hariba Arjuna Karande & Ors. ...Appellants
vs.
Shri Ramu Kondi Ghadge & Anr. ...Respondents
....
Mr. Sushil Inamdar, i/b. K.B. Sonwalkar, for the Appellants.
Mr. A. Chikale, i/b. P.B. Shah, for the Respondents.
.......
CORAM : S.C. GUPTE, J.
DATED : 5 JUNE 2017
(JUDGEMENT) :
. Heard learned Counsel for the parties.
2. The Second Appeal arises from the judgment of the District
Court, Satara, dated 28 February 1992, dismissing the appeal of the
Appellants (Original Defendants) against the decree passed by the trial
court in favour of the Respondents (Original Plaintiffs) in a suit for
perpetual injunction. The Second Appeal was admitted on questions of
law concerning the part ownership of, or alternatively, the right of
easement by prescription to take water from, the suit well of the
Appellants.
3. In order to appreciate the controversy involved in the
appeal, it is necessary to state the following relevant facts :
sg 2/5 sa647-94.doc
The Defendants are owners of land being Gat No.1396.
Plaintiff No.1 is the owner of Gat No.1390, 1391 and 1397. Plaintiff
No.2 is seized and possessed of Gat No.1392. There is a well situated in
the agricultural land, bearing Gat No. 1390, of village Naikbombwadi,
Taluka Phaltan, District Satara ('suit well'). The water course of this well
allegedly goes through Gat No.1396, the Defendants' land. The
Defendants were obstructing the Plaintiffs' possession and peaceful
enjoyment of the suit well. The Plaintiffs, in the premises, filed Civil Suit
No.126 of 1983 in the Court of Civil Judge, Junior Division, Phaltan, for
a perpetual injunction, restraining the Defendants from obstructing the
Plaintiffs' peaceful possession and enjoyment of the suit well. The
Defendants filed a counter-claim seeking a perpetual injunction,
restraining the Plaintiffs from obstructing the Defendants' right to take
water from the suit well. The Court decreed the suit and dismissed the
Defendants' counter-claim. Being aggrieved, the Defendants filed First
Appeal No.545 of 1987 in the Court of Additional District Judge at
Satara. By the impugned judgment, the District Court dismissed the
Appeal. Hence this Second Appeal.
4. The impugned orders of the Courts below are challenged on
the following grounds :
(a) The Defendants have one half share in the suit well, and as
such part owners, have a right to take water from it.
(b) The lower Courts have erred in holding that the Plaintiffs
sg 3/5 sa647-94.doc
have a right to take water from the suit well to their land, Gat No.1397,
through the Defendants' land, Gat No.1396. It is submitted that the
Plaintiffs have not acquired any right of easement by prescription to take
water through the water channel prepared by the Defendants to Gat
No.1397. Learned Counsel submits that the Plaintiffs were never taking
water from the suit well to their land, Gat No.1397, through the
Defendants' land prior to filing of the suit.
(c) It is submitted that the Courts below erred in dismissing the
Defendants' counter-claim, seeking a declaration of their one half share
in the suit well and a perpetual injunction, restraining the Plaintiffs from
obstructing their right to receive water from the suit well.
(d) The lower Courts have erred in holding that since the
Defendants' earlier suit, being Regular Civil Suit No.68 of 1983, was
dismissed for default and no efforts were made for its restoration, the
Defendants could not claim the same relief in their counter-claim. It is
submitted that the claim in R.C.S. No.68 of 1983 was different from the
counter-claim made in this suit and the provisions of Order VIII, Rule 6-
A of CPC have been wrongly interpreted and applied by the courts below.
5. The trial court found that the suit well was within the
Plaintiffs' land, namely, Gat No.1390, according to the revenue records;
that the documentary evidence on record showed that the Plaintiffs
purchased the well and were in use thereof; that there was no evidence
to show that the Defendants were either the owners or in possession or
use of the suit well; that there was a long gap between the date the
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Defendants as tenants were enjoying one half share of water from a well
in the adjacent plot, which corresponds to Gat No.1390; and that there
was no documentary evidence that the Defendants enjoyed water from
the present suit well. On this basis, the trial court decreed the suit and
dismissed the counter-claim.
6. The lower appellate court dismissed the appeal holding that
the certificate under Section 32 M of the BTAL Act does not specify that
the Defendants had a right to fetch water from the suit well to the extent
of one-half share; that on the other hand, the judgment and order in
tenancy proceedings in favour of the Plaintiffs declared them as deemed
purchasers of the land, which contained the suit well, the price of which
was fixed in the order; that a prior suit filed by the Defendants, being
R.C. Suit No.68 of 1983, claiming the same reliefs as in the present
counter-claim, was dismissed for default and no steps were taken for
restoration and thus the counter-claim was hit by Section 12 of the Code
and that even otherwise, counter-claim put forth by amending the
written statement could not be entertained under Rule 6-A (1) of Order
8.
7. The appreciation of the documentary and oral evidence by
the courts below cannot be faulted on any question of law. The
conclusions that there was evidence to support the Plaintiffs' case of
purchase of the suit well along with the plot of land and that there was
no evidence that the Defendants either partly owned the suit well or
were actually making any use of it by drawing water from it, cannot be
termed as either based on no evidence or vitiated by any error of law.
sg 5/5 sa647-94.doc
There is no relevant material disregarded or irrelevant or non-germane
material considered to arrive at these conclusions.
8. Learned Counsel for the Appellants has not shown how reliefs in
their earlier suit, namely, R.C. Suit No.68 of 1983, were different from
the present counter-claim.
9. There is, accordingly, no merit in the Second Appeal. The
Second Appeal is dismissed. No order as to costs.
( S.C. GUPTE, J. )
