Halayya Virupakshayya ... vs Tirakappa S/O Chanabasappa ...
2022 Latest Caselaw 1625 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH
       DATED THIS THE 03RD DAY OF FEBRUARY, 2022
                          BEFORE
 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
              R.S.A.NO.5386/2012 (PAR/INJ)
BETWEEN

HALAYYA VIRUPAKSHAYYA KALLOLIMATH,
AGE : 51 YEARS, OCC: AGRICULTURE,
R/O BIJJUR, TQ: SHIRAHATTI,
DIST: GADAG-583012.
                                           ...APPELLANT
(BY SRI SURESH P.HUDEDAGADDI, ADVOCATE.
SPACE LAW ASSOCIATES AND SRI A.C.PURAD, ADV.)

AND

TIRAKAPPA S/O CHANABASAPPA ARISHINAD
SINCE DECEASED REPRESENTED BY HIS LRS.

1(A)   DYAVAKKA W/O TIRAKAPPA ARISHINAD,
       AGE : 48 YEARS, OCC: HOUSEHOLD WORK,
       R/O BIJJUR, TQ: SHIRAHATTI, DIST: GADAG.

1(B)   PADMA W/ PRAKASH BHUSHETTAR,
       AGE : 24 YEARS, OCC: HOUSEHOLD WORK,
       R/O BOMMANAGATTI, POST : HOSARITTI,
       TQ: & DIST: HAVERI.

1(C)  LAXMI W/ NAGAPPA YEMMI,
      AGE : 22 YEARS, OCC: HOUSEHOLD WORK,
      R/O VADAVI, TQ: SHIRAHATTI, DIST: GADAG.
                                         .... RESPONDENTS
(BY SRI LAXMAN T.MANTAGANI, ADV.)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 31.03.2009 PASSED
BY THE CIVIL JUDGE (JR.DN.) AND JMFC, LAXMESHWAR IN
O.S.NO.5/2006 AND THE JUDGMENT AND DECREE DATED
02.01.2012 PASSED BY THE ADDL. SENIOR CIVIL JUDGE,
GADAG, SITTING AT LAXMESHWAR, IN RA.NO.34/2009, AND
DECREE THE SUIT AS PRAYED FOR BY THE APPELLANT, IN THE
INTEREST OF JUSTICE AND EQUITY.
                              2




     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                     : JUDGMENT :

The captioned second appeal is filed by the

plaintiff questioning the concurrent judgments and

decree of the Courts below, wherein the courts below

have dismissed the suit filed by the appellant-plaintiff

and have declined to grant perpetual injunction

against the respondent-defendant.

2. Facts leading to the above said case are as

follows:

The appellant-plaintiff claims that he is the

owner of Sy.No.34/3 measuring 3 acres 36 guntas

situated at Bijjuru village. The appellant-plaintiff has

further contended that the respondent-defendant is

the owner of the adjoining land bearing Sy.No.32/2.

The appellant-plaintiff claims that respondent-

defendant's land is also situated on the southern side

and behind the land of defendant there is a big nala.

Appellant-plaintiff claims that he has installed pump-

set in the said big nala at point 'A' as shown in the

plaint sketch. The appellant-plaintiff also claims that

on 14.12.1992, respondent-defendant and his brother

executed a consent deed permitting the appellant-

plaintiff to fix the pipeline in the land of respondent-

defendant.

3. Pursuant to consent deed, the appellant-

plaintiff claims that he approached the Electricity

Department as well as Minor Irrigation Department

and having secured permission, he was drawing water

by utilizing the land of defendant by laying pipeline.

The respondent-defendant having permitted the

appellant-plaintiff to lay pipeline, however started

obstructing appellant-plaintiff from lifting the water

through the pipeline. Therefore the appellant-plaintiff

was compelled to file a bare suit for injunction.

4. Respondent-defendant on receipt of suit

summons appeared and filed written statement and

stoutly denied the entire averments made in the plaint

relating to execution of consent deed dated

14.12.1992 thereby permitting the appellant-plaintiff

to utilize the land of respondent-defendant.

5. The appellant-plaintiff in support of his

contention examined himself as PW1 and examined

two independent witnesses and relied on the

documentary evidence vide Exs.P.1 to P.11.

Respondent-defendant to counter the contentions of

the appellant-plaintiff examined as DW.1 and

examined two independent witnesses and produced

documentary evidence vide Exs.D.1 to D.9.

6. The Trial Court having examined oral and

documentary evidence has recorded a finding of fact

that the appellant-plaintiff has in fact laid a pipeline

thereby utilizing the land of respondent-defendant.

However, on perusal of Ex.P.8, the Trial Court found

that the agreement is dated 14.12.1992, but stamps

were purchased in the year 1993. Therefore, the Trial

Court has virtually discarded Ex.P.8, which is a suit

document. Having discarded Ex.P.8, the Trial Court

has come to the conclusion that in absence of lawful

agreement, the appellant-plaintiff cannot assert and

utilize adjoining owners land by constructing a

watercourse. These findings are also confirmed by the

First Appellate Court.

7. Heard learned counsel appearing for the

appellant and learned counsel appearing for the

respondent. Perused the judgment under challenge.

8. Both the Courts have declined to grant any

relief to appellant-plaintiff on the premises that no

rights emanate in favour of appellant-plaintiff based

on Ex.P.8, which is consent deed executed by

respondent-defendant. The entire claim of appellant-

plaintiff is based on Ex.P.8. This document is seriously

disputed by respondent-defendant. Both the Courts

have held that the stamps pertain to the year 1993,

whereas the document is alleged to have been

executed on 14.12.1992. It is in this background that

both the Courts below have discarded Ex.P.8.

9. In that view of the matter, I am of the view

that no substantial question of law arises in the

present case on hand. However, the peculiar facts and

circumstances of the case do indicate that appellant-

plaintiff has already constructed a watercourse i.e.,

pipeline by utilizing the land of respondent-defendant.

There is no lawful agreement as respondent-defendant

is seriously disputing Ex.P.8. Both the Courts below

have declined to place reliance on Ex.P.8. The

appellant-plaintiff is an agriculturist and is a farmer.

This Court is quite aware that the present suit is one

for bare injunction. Therefore the judgment rendered

by the Courts below and any observations made by

this Court in the course of judgment would not come

in the way of appellant-plaintiff in seeking appropriate

remedy under Section 90A of the Karnataka Land

Revenue Act, 1964. Merely because he has failed to

establish the alleged agreement as per Ex.P.8 would

not necessarily mean that he cannot seek appropriate

remedy before the competent authority under Section

90A of the Karnataka Land Revenue Act, 1964.

With these observations, the second appeal is

hereby dismissed.

However, it is open for the appellant-plaintiff to

file appropriate application before the competent

authority.

SD/-

JUDGE EM