Smt Shashi Hengsu vs Sri Vasu Devadiga
2022 Latest Caselaw 173 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 5TH DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR.JUSTICE M.G.S.KAMAL

        REGULAR SECOND APPEAL NO.291/2016

BETWEEN:

SMT. SHASHI HENGSU
AGED ABOUT 60 YEARS
W/O LATE THIMMAPPA
R/O HEMBERU
PADUVARY VILLAGE-574 218
KUNDAPURA TALUK.
                                       ...   APPELLANT
(BY SRI SUYOG HERALE., ADV. FOR
    SRI ARUNA SHYAM M, ADV.)

AND:

SRI VASU DEVADIGA
AGED ABOUT 32 YEARS
S/O LATE GANGE DEVADIGITHY
R/AT PADUVARY VILLAGE
KUNDAPURA TALUK - 574 218.
                                     ... RESPONDENT
(BY SRI K. CHANDRANATH ARIGA, ADV)

     THIS APPEAL IS FILED UNDER SEC.100 OF CPC.,
1908 AGAINST THE JUDGMENT AND DECREE DATED
17.11.2015 PASSED IN R.A.NO.42/2007 ON THE FILE OF
THE SENIOR CIVIL JUDGE, KUNDAPURA, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
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DATED: 08.03.2007 PASSED IN OS.NO.82/2004 ON THE
FILE OF THE PRL. CIVIL JUDGE (JR.DN), KUNDAPURA.

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

                           JUDGMENT

This Regular Second Appeal is filed by the

appellant/defendant aggrieved by the judgment and

decree dated 17.11.2015 passed in Regular Appeal

Nos.42/2007 on the file of Senior Civil Judge,

Kundapura (hereinafter referred to as 'the First

Appellate Court') in and by which, the First Appellate

Court while allowing the appeal of the

respondent/plaintiff set aside the judgement and

decree dated 08.03.2007 passed in O.S.No.82/2004

and consequently decreed the suit of the plaintiff

restraining the defendant from interfering into 'B'

schedule property and damaging the channel existing

in the 'B' schedule property.

2. The case of the plaintiff is that he is the

absolute owner of the schedule 'A' properties being

agricultural land and he being the member of the

undivided family is looking after the agricultural

operations as a manger of this family. A land in

survey No.265/1 (plaint 'B' schedule property) a

government land, which is situated towards the

eastern side of the 'A' schedule properties. There is a

big rain water reservoir measuring 2.91 acres (plaint

'C' schedule property), in the adjoining land bearing

survey No.211/8 of Paduvary Village. The rain water

gets collected in the said reservoir Plaint 'C' Schedule

Property and the same is being used by the plaintiff

through a channel running on Plaint 'B' Schedule

Property. The plaintiff and the nearby land holders are

using the water to their paddy fields from the Plaint 'C'

Schedule Property, which is the only source of water

for their agricultural activities.

3. That Schedule 'A' property is Kadim warg

land, which is abutting to the 'B' schedule property. 'B'

schedule property forms purported Kumki and the

plaintiff is enjoying Kumki privileges over the plaint 'B'

schedule property. It is further alleged that the

defendant with an intention of grabbing schedule 'B'

property has encroached upon the same and he is also

blocking the water channel, which is running through

schedule 'B' property to schedule 'A' property by

constructing mud dhare across it. The plaintiff was

constrained to file complaint before the Police and

since the matter is of civil nature, the plaintiff was

advised to approach the appropriate legal forum.

Hence, the plaintiff filed the suit.

4. Defendant on his/her appearance filed

written statement denying the plaint averments also

disputed the title of the plaintiff over the schedule 'A'

properties. The claim of the purported Kumki

privileges by the plaintiff over 'B' schedule property is

also denied. Defendant also denied the existence of

water channel over schedule 'B' property and also

denied the alleged interference by constructing mud

dhare. Defendant further contended that she has been

in actual peaceful physical possession of 75 cents of

land in survey No.265/1 for over 30 years

continuously, openly and uninterruptedly and has thus

perfected her right over the said property by adverse

possession. The defendant has also put up tiled roof

house on the schedule 'B' property and has dug a well,

planted 6 coconut trees and cashew trees in the said

lands. The property in survey No.265/1, which is in

possession of the defendant never forms kumki to the

schedule 'A' properties as claimed by the plaintiff.

Hence, sought for dismissal of the suit.

5. The trial Court based on the pleadings

framed the following issues for consideration:-

1. Whether the plaintiff proves that he is in lawful possession and enjoyment over the suit 'A' schedule properties?

2. Whether the plaintiff proves the interference by the defendant as stated in para 5 of the plaint?

3. Whether the plaintiff is entitled for the reliefs claimed?

4. What decree or order?

6. Plaintiff examined himself as P.W.1 and

another witness as P.W.2 exhibited 27 documents

marked as Exs.P1 to P27. Defendant on the other

hand examined three witnesses as D.W.1 to D.W.3

and produced no documentary evidence. On

appreciation of the evidence, the trial Court by its

judgment and decree dated 08.03.2007 dismissed the

suit of the plaintiff with cost. Being aggrieved by the

said judgment and decree, the plaintiff preferred

appeal in R.A.No.42/2007 considering the grounds

urged in the appeal memorandum. The First Appellate

Court framed the following points for its

consideration:-

1. Whether the trial Court is justified in holding that there was no interference of the defendant over the suit schedule property?

2. Whether the judgment passed by the Trial Court is illegal capricious and liable to set-aside and interference of this Court is warranted?

3. What order/decree?

7. The First Appellate Court by impugned

judgment and decree dated 17.11.2015, allowed the

appeal decreed the suit as referred to hereinabove.

Aggrieved by the same, the defendant is before this

Court in this second appeal.

8. Learned counsel for the appellant

reiterating the grounds urged in the memorandum of

appeal submits that the First Appellate Court grossly

erred in decreeing the suit without there being any

evidence with regard to existence of water channel

over the 'B' schedule property. He further submits

that the trial Court had rightly appreciated and

declined to accept the documents at Ex.P6 as it was

fabricated by the plaintiff. The trial Court had also

rightly declined to accept the report of the

commissioner on the premise that the commissioner

report was prepared on the instruction of the plaintiff

since there is a serious dispute with regard to very

existence of the water channel over the 'B' schedule

property and without there being any acceptable

evidence, the First Appellate Court ought not to have

decreed the suit. He further submits that the

defendant has been in possession of 75 cents of land

in survey No.265/1, which includes 'B' schedule

property. The judgment and decree impugned

directing the defendant not to interfere with the 'B'

schedule property would aversely affect her interest.

This aspect of the matter has not been considered by

the First Appellate Court requiring interference by this

Court. He further submits that in view of the

defendant being in possession of schedule 'B' property

over 30 years, she could not have been restrained by

the order of injunction as done by the First Appellate

Court. Thus, the appeal gives rise to a substantial

question of law to be considered. Hence, seeks for

allowing of the appeal.

9. On the other hand, learned counsel for

respondent/plaintiff justifying the order passed by the

First Appellate Court submits that the relief sought for

by the plaintiff is with respect to the water

source/channel which is running from schedule 'C'

property through schedule 'B' property to the schedule

'A' properties which sought to be illegally obstructed

by the defendant by constructing mud dhare affecting

the rights of the plaintiff. He further submits schedule

'B' property being Kumki, the plaintiff is entitled to

derive the benefits/privileges for the purpose of

cultivating schedule 'A' properties. It is these two

rights/privileges, namely; right to draw water and

kumki benefits which are sought to be obstructed by

the defendant constraining the plaintiff to file a suit

seeking injunctive relief. He submits the existence of

the water channel is established by the sketch at

Ex.P6 and also by the report of the commissioner. By

drawing attention of the Court to the depositions of

DWs.2 and 3. He submits that admittedly 'C' schedule

property, where the water reservoir existing is the

only source of water for cultivation by the surrounding

land owners. The plaintiff's property situating abutting

schedule 'B' property, derives the water from 'C'

schedule property through schedule 'B' property,

which fact has not been disputed by the defendant's

witnesses proves beyond any doubt the existence of

water channel. Thus, he submits no substantial

question of law is involved in this matter warranting

interference with the impugned judgment and decree.

10. It is necessary to note that learned counsel

for the appellant/defendant as well as

respondent/plaintiff submit both the plaintiff and the

defendant have made claim of ownership over the

Schedule 'B' Property by filing necessary applications

before the Revenue Authorities for regularization of

their respective occupation/claims and the said

applications are pending consideration. There is no

dispute with regard to this crucial aspect of the mater

that schedule 'B' property remains government land,

notwithstanding the claim of the defendant of she

having perfected the title by way of adverse

possession over the same. It is necessary to note

that schedule 'C' property, which is a water reservoir

caters to the agricultural requirement of the

surrounding land holders. The said water reservoir is

the only source of water for cultivation. As rightly

noted and appreciated by the First Appellate Court,

Ex.P.6 read with the Commissioner report and

depositions of DWs.2 and 3 would establish existence

of water channel running from Schedule 'C' Property

through schedule 'B' property to the schedule 'A'

properties. This finding on the factual aspect of the

matter cannot be interfered in this regular second

appeal. The issue being limited, that is the decree of

the First Appellate Court directing the

appellant/defendant not to cause obstruction in the

plaintiff's right of enjoyment of this water source and

deriving purported Kumki benefits in the schedule 'B'

property, which is admittedly a government land,

leaves no further scope for interference in the

impugned judgment and decree.

11. Learned counsel for appellant/defendant

vehemently submitted that though the plaintiff is not

seeking any right over the 'B' schedule property

except privilege of drawing water through the water

channel and Kumki benefits thereof, the impugned

order would be interpreted detriment to the interest of

the appellant/defendant, who is in occupation of 'B'

Schedule Property over 30 years and her application is

pending consideration. Aptly replied by the learned

counsel for the respondent/plaintiff is that no

proprietary right is being claimed by the plaitniff in the

suit except the right of drawing water through the

channel and the purported Kumki privileges from the

'B' Schedule Property which is a statutory entitlement

of the plaintiff in view of the nature of the land and

same cannot be denied or obstructed by the

appellant/defendant.

12. Be that as it may. In view of the admitted

fact that both the plaintiff and the defendant having

filed their applications for regularization of their

occupation over the 'B' schedule property, which is

pending consideration, their claims relating to

proprietary rights if any, over the 'B' Schedule

Property would be subject to outcome of the said

applications.

13. As regards the right of the plaintiff for the

limited purpose of drawing water from 'C' Schedule

Property through the channel running on schedule 'B'

property and also deriving purported Kumki benefits,

in view of the schedule 'B' property being the

government land, the judgment and decree passed by

the First Appellate Court may have to be understood

only to that extent of preserving said rights/privileges

of the plaintiff. Since the First Appellate Court has

taken all these aspects into consideration, this Court is

of the considered view that no substantial question of

law involves for consideration. Hence, the appeal is

dismissed.

Sd/-

JUDGE

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