Karnataka High Court

Smt. Parwatewwa W/O Appayya Mathad vs Smt. Gangawwa W/O Sadashivvayya ... on 31 May, 2024

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                                                      NC: 2024:KHC-D:7341
                                                          RSA No. 100148 of 2022




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 31ST DAY OF MAY, 2024

                                             BEFORE

                             THE HON'BLE MR JUSTICE C.M. POONACHA

                    REGULAR SECOND APPEAL NO. 100148 OF 2022 (DEC/INJ-)

                   BETWEEN:
                   SMT. PARWATEWWA W/O APPAYYA MATHAD
                   AGE: 61 YEARS, OCC: AGRICULTURE
                   AND HOUSEHOLD WORK,
                   R/O ALABAL VILLAGE, JAMKHANDI,
                   TQ: JAMKHANDI, DIST: BAGALKOT.
                                                                     ...APPELLANT
                   (BY SRI M.C.HUKKERI, ADVOCATE)

                   AND:
                   1.   SMT. GANGAWWA
                        W/O SADASHIVVAYYA SHIRAGUPPI
                        AGE: 76 YEARS, OCC: AGRICULTURE
                        AND HOUSEHOLD WORK,
                        R/O ALABAL VILLAGE, JAMKHANDI,
                        TQ: JAMKHANDI, DIST: BAGALKOT.

Digitally signed   2.   SMT. SHIVALINGAWWA
by SAROJA               W/O SANGAYYA BANGI
HANGARAKI               AGE: 56 YEARS, OCC: AGRICULTURE
Location: HIGH          AND HOUSEHOLD WORK,
COURT OF                R/O JAMKHANDI, DIST BAGALKOT.
KARNATAKA
DHARWAD                                                           ...RESPONDENTS
BENCH
DHARWAD                 THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
                   THE JUDGMENT AND DECREE DATED 25.02.2020 PASSED IN
                   R.A.NO.94/2017 ON THE FILE OF THE I ADDITIONAL DISTRICT AND
                   SESSIONS    JUDGE,   BAGALKOT    SITTING   AT   JAMAKHANDI,
                   DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
                   DECREE DATED 27.02.2017, PASSED IN O.S. NO.248/2005 ON THE
                   FILE OF THE     PRINCIPAL SENIOR CIVIL JUDGE, JAMAKHANDI,
                   DISMISSING THE SUIT FILED FOR DECLARATION AND INJUNCTION.

                        THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
                   COURT DELIVERED THE FOLLOWING:
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                                                            NC: 2024:KHC-D:7341
                                                              RSA No. 100148 of 2022




                                          JUDGMENT

The above second appeal is filed under Section 100 of the

Code of Civil Procedure, 19081 by the plaintiff challenging the

judgment and decree dated 25.2.2020 passed in RA

No.94/2017 by the I Additional Bagalkot, to sit at Jamkhandi2

and the judgment and decree dated 27.2.2017 passed in OS

No.248/2005 Principal Senior Civil Judge, Jamkhandi3, wherein

the suit for declaration and injunction filed by the plaintiff has

been dismissed by the Trial Court which has been affirmed by

the first appellate Court.

2. For the sake of convenience, the parties herein are

referred as per their rank before the Trial Court.

3. The relevant facts necessary for consideration of

the present appeal are that the plaintiff and defendant No.2 are

the daughters of defendant No.1. That plaintiff and defendant

No.2 are the joint owners of land bearing RS No.12/1

measuring 2 acres 35 guntas, RS No.13/1B measuring 5 acres

20 guntas and RS No.13/2 measuring 6 acres 26 guntas. That

defendant No.1 is the owner of land bearing RS No.6/1

Hereinafter referred to as the 'CPC'

Hereinafter referred to as the 'first appellate Court'

Hereinafter referred to as the 'trial Court'

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measuring 5 acres 18 guntas. That all the aforesaid lands are

situated at Alabal village and are abutting one another.

4. It is the further case of the plaintiff that the plaintiff

and defendants got divided the land of the family during the

year 2003 and although the lands of the plaintiff and defendant

No.2 are in their joint names, their cultivation, possession and

raising of crop is done separately. It is the further case of the

plaintiff that herself and defendant No.1 have commonly

installed a pump set and pipeline in their respective lands and

laid a pipeline from Krishna river which is 1 km., away from

their lands. That they have jointly applied for a loan from the

Karnataka Bank under the Krishna Card Scheme. That the

point fixed at T1 is in the land of defendant No.1 in RS No.6/1

and another point at T2 fixed in the land of defendant No.2 is

exactly in the corner touching the land of defendant No.1 in RS

No.13/1B. That the plaintiff is taking water from T1 and T2

points along with defendant Nos.1 and 2 and they have fixed

electric motor on the bank of the river Krishna. That the said

system of lifting and taking water for irrigating the crops is in

practice for a long time, even after partition, without any

interruption from anyone.

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5. It is the further case of the plaintiff that at the

instigation of defendant No.2, the defendants in collusion with

each other have suddenly stopped and caused obstruction to

the plaintiff in taking water from points T1 and T2. That due

to the act of the defendants, the crops in the land of the

plaintiff are dried up and they will be destroyed. That the

plaintiff approached the elders, but since the defendants have

not heeded to their request, the plaintiff has filed the suit.

6. The defendants entered appearance and contested

the case of the plaintiff by filing a written statement,

whereunder the case of the plaintiff has been denied. The

relationship of the parties is admitted. It is specifically

contended that defendant Nos.1 and 2 have exclusively laid a

pipeline from Krishna river to their lands and the plaintiff is in

no way concerned and the plaintiff has never drawn water from

T1 and T2 points. Hence, the question of obstruction or

disturbance or interruption from the defendants does not arise.

Hence, defendants sought for dismissal of the suit.

7. The Trial Court, consequent to the pleadings of the

parties, framed the following issues:

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"1) Whether the plaintiffs prove that she has got right, title, interest to operate the suit T-1 and T-2 tied in the lands of defendant No.1 and 2 in Rs No.6/1 and 13/1B?

2) Whether plaintiff proves that the defendant Nos. 1 and 2 causing obstruction to the plaintiff for operating T-

1 and T-2 for taking the water to her land for irrigation purpose?

3) Whether defendants prove that they have exclusive right over the T-1 and T-2 and pipeline which is situated in suit land?

4) Whether the defendant proves that suit is barred by limitation?

5) Whether defendants prove that suit is barred U/sec. 12 of CPC and Order II Rule 2 of CPC?

6) Whether plaintiff entitle to the relief sought for?"

8. The plaintiff examined herself as PW.1. Exs.P1 to

P16 were marked in evidence. Defendant No.2 examined

herself as DW.1. A witness was examined as DW.2. Exs.D1 to

D14 were marked in evidence. The Trial Court by its judgment

and decree dated 27.2.2017 dismissed the suit. Being

aggrieved, the plaintiff preferred RA No.94/2017. The

defendants entered appearance before the first appellate Court

and contested the said appeal. The first appellate Court

framed the following points for consideration:

"(1) Whether the plaintiff has proved that she and the defendants have jointly led pipeline to draw water from the Krishna river and she is entitled to take water through the pipeline?

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(2) Whether the defendants have proved that they have lead pipeline in the year 1997 in their land and it exclusively belongs to them?

(3) Whether plaintiff is entitled for the relief sought?

(4) Whether it is necessary to interfere with the judgment and decree passed by trail court?

(5) To what Order? "

9. Upon a re-appreciation of the oral and

documentary evidence available on record, the first appellate

Court dismissed the appeal filed by the appellant and confirmed

the judgment and decree passed by the Trial Court. Being

aggrieved, the present second appeal is filed.

10. Learned counsel for the appellant vehemently

contends that both the Courts have failed to notice that the

pipeline in the properties of the defendants is jointly drawn by

mortgaging their properties. That the material on record has

not been considered by both the Courts. Hence, he seeks for

allowing of the above appeal, setting aside of the judgment and

decree passed by both the Courts and decreeing the suit of the

plaintiff.

11. The submissions of learned counsel for the

appellant have been considered and the material on record has

been perused.

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12. The Trial Court while considering issue Nos.1 to 3

has recorded the following findings:

i. The admission given by the plaintiff (PW.1) in her

cross-examination itself shows that she has never

used the water from T1 and T2 points and she

never paid the water bills as well as electricity bills;

ii. That she has not produced any document to show

that she has fixed 10 HP motor to use the water in

her lands;

iii. In the evidence of PW.1 she admits that DWs.1 and

2 are using the water through T1 and T2 points and

the pipelines are also in their lands. If the plaintiff

had a water facility, certainly she would have made

a pipeline to her land. In the cross-examination

she admits that there is no pipeline in her land;

iv. OS No.319/2004 is filed by the Karnataka Bank for

recovery of amounts, wherein the present plaintiff

has clearly stated that she has not taken any water

facility and she is not liable to pay the loan amount;

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v. That when the plaintiff has denied the loan

transaction of water facility to the lands, she cannot

claim water facility by filing the present suit.

13. The first appellate Court while adjudicating the

points for consideration has recorded the following findings:

i. DW.1 has stated that she has stated that she has

given ₹1.00 lakh to defendant No.1 to lay pipeline,

but no documents are produced to evidence the

same. If really PW.1 has paid any money, there

would have been certain arrangement with regard

to drawing of pipeline situated in the land of the

defendants and no such agreement is forthcoming;

ii. If really the plaintiff is drawing water through the

pipeline situated in the lands of the defendants,

certainly she would have examined any witnesses to

prove regarding the same;

iii. The plaintiff who has approached the Court seeking

declaratory relief has failed to examine any witness

to substantiate her contention. The only evidence

adduced is her self serving testimony;

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i. The defendants have proved that the pipeline

exclusively belong to them and they only are entitled to

use the pipeline to draw water from Krishna river.

14. It is clear and forthcoming from the judgment and

decree passed by the Trial Court and the first appellate Court

that the Trial Court has adequately appreciated the oral and

documentary evidence and dismissed the suit of the plaintiff.

The first appellate Court has properly re-appreciated the oral

and documentary evidence while dismissing the appeal filed by

the plaintiff.

15. The plaintiff, apart from her self serving testimony

has not produced any material on record to demonstrate that

there has been an arrangement for her to utilize water from the

lands of the defendants. In the absence of independent

satisfactory evidence adduced by the plaintiff to demonstrate