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Karnataka High Court
Vishwanath S/O Gurushantappa Patil vs Babu S/O Gaddeppa Harijan And Anr on 13 February, 2026
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RSA No. 200288 of 2014
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR SECOND APPEAL NO. 200288 OF 2014
(DEC/INJ)
BETWEEN:
VISHWANATH S/O GURUSHANTAPPA PATIL
AGE: 34 YEARS, OCC:AGRICULTURE,
R/O:LINGADALLI, TQ: ALAND,
DIST: GULBARGA-585302
...APPELLANT
(BY SRI. BASAWARAJ NADGOUDA AND
SRI. SHIVAKUMAR KALLOOR.,ADVOCATES)
AND:
Digitally signed by 1. BABU S/O GADDEPPA HARIJAN
SHIVALEELA
DATTATRAYA AGE 34 YEARS, OCC:AGRICULTURE
UDAGI R/O:LINGADALLI, TQ: ALAND,
Location: HIGH
COURT OF DIST: GULBARGA-585302
KARNATAKA
2. RAJASHEKHAR S/O GADDEPPA HARIJAN
AGE 27 YEARS, OCC:AGRICULTURE,
R/O:LINGADALLI, TQ: ALAND
DIST: GULBARGA-585302
...RESPONDENTS
(BY SRI. MADHUCHANDRA M N., ADVOCATES)
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RSA No. 200288 of 2014
HC-KAR
THIS RSA IS FILED U/S 100 OF CPC, BY THE ADVOCATE
FOR THE APPELLANT PRAYING TO ALLOW THE APPEAL BY
SETTING ASIDE THE JUDGMENT AND DECREE DATED
24.07.2014 PASSED IN R.A NO.49/2007 BY THE SENIOR CIVIL
JUDGE ALAND AND CONSEQUENTLY RESTORE THE JUDGMENT
AND DECREE DATED 03.10.2007 PASSED IN O.S. NO.25/2005
BY THE ADDL. CIVIL JUDGE (JR. DN.) AND JMFC, ALAND, WITH
COST THROUGHOUT.
THIS APPEAL, COMING ON FOR PRONOUNCEMENT OF
JUDGEMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
CAV JUDGMENT
This second appeal is preferred by the defendant,
challenging the judgment and decree dated 24.07.2014 passed
in R.A.No.49/2009 by Senior Civil Judge, Aland [for brevity,
'the First Appellate Court'], which reversed the judgment and
order dated 03.10.2007 passed in O.S.No.25/2005 by
Additional Civil Judge (Jr.Dn.) and JMFC, Aland [for brevity,
'the Trial Court'].
2. The case of the plaintiffs is that they are the owners
in possession of land bearing Sy.No.7/2A measuring 3 acres 16
guntas and the well in the said land situated in Lingadalli village
[hereinafter mentioned as "the suit well"]. One Peeru Lakshu
Harijan and Gadappa-the father of plaintiffs are brothers and in
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the year 1960 and an oral partition took place between the said
brothers and in the said partition, a land bearing Sy.No.7/2B
measuring 3 acres, which is situated on the northern side of the
land bearing Sy.No.7/2A, had fallen to the share of Peeru and
the land bearing Sy.No.7/2A measuring 3 acres 16 guntas had
fallen to the share of the Gaddappa. Subsequently, the said
Gaddappa had dug a well in the land fallen to his share.
However, the said Peeru had sold his entire land to one
Shivalingappa Basappa Tonne under a registered Sale Deed
dated 10.02.1972, in which the description of well was not at
all mentioned. Nonetheless, the sons of said Shivalingappa
Tonne sold 2 acres of land to the present defendant under the
registered Sale Deed dated 02.03.1993, conveying illegally, the
right of use of the well water, to the extent of 2/3rd of their
share to the defendant. Subsequently, the defendant installed
pump sets to the suit well and laid pipelines for use of the
water. When the plaintiffs requested the defendant to remove
his I.P. set from the suit well, the said request was not acceded
to. Hence, the plaintiffs were constrained to file the suit.
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3. On issuance of suit summons, the defendant filed
his written statement specifically denying all the plaint
allegations. He contended that it was Peerappa-plaintiff's uncle,
who had dug the well in his land and defendant deepened the
well and installed I.P. set to the suit well. It was further
contended that plaintiffs were residing along with their father at
Mumbai and they never came over to their village. According to
the defendant, he had obtained electricity connection from
GESCOM (KEB) Aland in the year 1993 and installed 3-HP pump
set to the well and laid down 1000 ft. pipeline from the well to
his land as shown in the hand sketch map annexed to the
written statement, as such, the defendant is irrigating his land
since 1996.
4. It is further contended that in respect of the land, in
which the suit well is situated, hissa-phodi has been made and
Form No.10 was prepared, according to which 4 guntas of land
is shown separately, in which, the suit well was shown being
commonly used by both defendant and plaintiffs. He also
mentioned that the mother of the plaintiffs had signed on
hissa-phodi proceedings. He contended that in the year 1993
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the silt from the well has been removed at the common
expenses by plaintiffs and defendant and prior to the filing of
suit, once again the silt from the well has been removed, at the
joint expenses by the plaintiffs and defendant. The defendant
has also contended that Putalabai who is the mother of the
plaintiffs was necessary party to the suit and further, the suit
filed by the plaintiffs is hit by the Principle of estoppel.
5. The Trial Court, after examining the evidences and
materials on record dismissed the suit of the plaintiffs and the
First Appellate Court, on appeal, set aside the judgment and
decree of the Trial Court and thereby decreed the suit. The
defendant being aggrieved by the same preferred this second
appeal.
6. Heard the learned counsel for the
appellants/defendants and respondent/plaintiff.
7. It is contended by the learned counsel for the
appellant that the First Appellate Court have grossly erred while
passing the judgment by decreeing the suit without
appreciating the evidences and documents on record in a right
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perspective. According to him, plaintiffs have not produced any
documentary evidence to establish their title over suit well. He
specifically contended that, the first appellate Court has failed
to appreciate the defendant's contention that the suit of the
plaintiffs is not maintainable as they have not challenged the
Sale Deed dated 02.03.1993, according to which, defendant
has got right over the suit well. He further contended that the
First Appellate Court failed to consider that the defendant is
using the suit well by installing 3 H.P pump sets and obtained
electricity connection from GESCOM since from the date of Sale
Deed without obstruction from anybody. In such circumstances,
the suit filed by the plaintiff is not maintainable and accordingly
prays to allow the appeal and dismiss the suit filed by the
plaintiff.
8. Per contra, learned counsel for the respondent
submitted that the First Appellate Court has rightly decreed the
suit. He submitted that the sale deed executed in favour of the
defendant is null and void as the vendors in the alleged deed
had no right, title and interest over the suit well, hence, a
transfer by a person without title generally creates no valid
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ownership to the buyer. Accordingly, he prays to dismiss the
appeal preferred by the defendants.
9. This Court admitted the appeal to consider the
following substantial questions of law:
i. Whether the First Appellate Court is justified
in reversing the decree of the Trial Court in
spite of mentioning of right to take water from
well in Ex.P.18 - Sale Deed and failed to
consider Ex.D.5 - document issued by
GESCOM, Aland?
ii. Whether the First Appellate Court erred in not
considering the principles of estoppel or
acquiescence and reversing the decree of the
Trial Court?
10. Heard the learned counsel appellant-defendant and
respondents-plaintiffs and perused the materials on record.
11. As could be gathered from records, the plaintiffs
have not produced any satisfactory documentary evidence to
substantiate the fact that they are the owners in possession of
suit well. Further, the recital of Ex.P19 discloses that vendors of
defendant transferred right of suit well water to the extent of
2/3rd out of half share in the well to the defendant. Even Ex.P17
- record of right produced by the plaintiffs in respect of land
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bearing Sy.No.7/2A measuring 3 acres 16 guntas discloses that
the defendant has got his share in the well. PW.1 in his cross-
examination has stated that the defendant has installed the I.P.
set to the suit well by obtaining electricity supply from
GESCOM. PW.2 has also stated in his cross-examination that
defendant has installed I.P. set to the suit well and laid down
1000 ft. pipeline from the suit well. Ex.D5 - certificate issued by
GESCOM discloses that defendant has got electricity connection
to I.P. set since 1994. Thus, it is clear that the defendant has
been using the suit well since the date of Sale Deed i.e., 1993,
which has not been challenged by the plaintiffs. Further, the
evidence of DWs.1 to 5 discloses that the defendant is legally in
use and enjoyment of suit well by installing 3-HP IP set to the
suit well.
12. On perusal of the entire evidence on record the
plaintiffs have not placed any satisfactory evidence to establish
that the suit well was dug by the father of plaintiff-Gaddappa
after partition between himself and Peeru. Moreover, the
plaintiffs have not produced any documentary evidence to
establish that they are the owners in possession of the suit well
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as contended by them. The plaintiffs have totally relied on
Ex.P4 i.e., Records of Right pertaining to land bearing 7/2A
measuring 3 acres 16 guntas to establish their title. However,
Ex.P4 clearly discloses in other rights column the word "well" is
appearing. Nevertheless, the documents placed by the
defendant Ex.P19 and Exs.D1, 2, and 5 to 7 clearly depict the
existence of the suit well and sharing of the water between the
plaintiffs and defendant. As discussed supra, Ex.D5 also clearly
reveals that the defendant has installed pump set as well as
GESCOM connection to the pump set that the plaintiffs and
defendant were sharing water from the well ever since 1994.
No doubt in the Sale Deed of 1972, there is no mention of well,
however, ever since the execution of 1993 Sale Deed and
subsequent documents clearly established the right of
defendant in the well. Thus, the substantial questions of law
framed are answered accordingly. In the result, I proceed to
pass the following:
ORDER
i. The Regular Second Appeal is allowed.
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ii. The impugned judgment and decree dated
24.07.2014 passed in R.A.No.49/2007 by the
Senior Civil Judge, Aland, is set aside.
iii. The judgment and decree dated 03.10.2007
passed in O.S.No.25/2005 by the Additional
Civil Judge (Jr.Dn) and JMFC, Aland is
hereby confirmed.
Sd/-
(RAJESH RAI K)
JUDGE
HKV
List No.: 1 Sl No.: 7
CT-BH
