Telangana High Court

Mr T. Rajaram Singh, vs The Sarpanch, on 10 March, 2025

 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                  SECOND APPEAL No.204 of 2023

JUDGMENT:

This Second Appeal is filed challenging the judgment and

decree, dated 11.11.2022, passed by the Principal District and

Sessions Judge, Sanga Reddy, in A.S.No.30 of 2018, whereunder and

whereby appeal was dismissed confirming the judgment and decree,

dated 24.01.2018, passed by the Senior Civil Judge, Medak at

Sangareddy, in O.S.No.38 of 2010.

2. The appellant herein is plaintiff and the respondents herein are

defendants, before the trial Court. For convenience, hereinafter the

parties are referred to as they are arrayed in the suit.

3. The brief facts of the case, which led to filing of the present

Second Appeal, are that plaintiff filed the suit for declaration of right

of easement of water and mandatory injunction and also for perpetual

injunction restraining the defendants from interfering with the

peaceful possession and enjoyment of the plaintiff over the suit land.

It is averred that the plaintiff is the owner and possessor of the land in

Sy.No.1/A, Admeasuring Ac.0-36 gts in Pocharam Village, 2 LNA, J

Patancheru Mandal and the said land is being cultivated through a

Mota Bavi situated in Grama Kanta on abutting Sy.No.1 which is

patta land of the family of the plaintiff and they have been enjoying

the water of the said well since time immemorial. It is further averred

that well is a source of water for the plaintiff and also land holders of

Sy.No.2,3,4 and 5 and the same was being used for more than 100

years. Plaintiff's father took electricity connection to the suit well in

1983, which has been forcibly closed by the Sarpanch during the year

2004 with an intention to make construction, without giving any

opportunity to the family of the plaintiff. Thereafter, the plaintiff came

to know that the Panchayat Extension Officer, Patancheru directed the

Sarpanch/defendant to take possession of the said place by an order

dated 17.03.2010, but possession has not been taken. The plaintiff has

got right to seek the relief of perpetual injunction against the

defendants. Hence, filed O.S. No.38 of 2010.

4. A Written statement was filed by the defendant No.1 denying

the averments of the suit and averred that suit well was already dried

up and the same was posing danger to the children and other residents

of the village. In the year 2002, Gram panchayath passed a resolution

to take over the site of the open well which was filled-up under the 3 LNA, J

food for work scheme. The well is about 1000 sq.yds and is adjacent

to the Patancheru Town and in view of the increasing land value the

plaintiff filed the suit without any right. Therefore, prayed to dismiss

the suit.

5. On the basis of the above pleadings of both the parties, the trial

Court framed the following issues for trial:-

1.Whether the plaintiff is entitled for declaration that he has acquired absolute right of easement of taking water from the suit well?

2. Whether the plaintiff is entitled for perpetual injunction restraining the defendant his men from interfering with the peaceful possession and enjoyment of the plaintiff over the suit land including changing the nature of the land as prayed for?

3.Whether the plaintiff is entitled for mandatory injunction directing the defendants to reopen the suit well or allow the plaintiffs to reopen the same for rightful enjoyment of the suit well as prayed for?

6. On behalf of the plaintiff, P.W.1 to 3 were examined and got

marked Exs.A1 to A4 and on behalf of the defendants, DW.1 was

examined and got marked as Exs.B1 to B4 on their behalf.

4 LNA, J

7. After full-fledged trial and upon considering the oral and

documentary evidence and the contentions of both the parties, the trial

Court dismissed the suit, vide judgment and decree dated 24.01.2018

with the following observations:

"15. However, it is already held that as on date of filing of this suit itself there was no well in existence on the ground and when there is no well as it being the Gramakantam land the plaintiff cannot be in the possession or restrain the authorities from using it for public purpose. Adding to that as on this date the relief sought by the plaintiff itself has become infructous as he is not cultivating the land any more in the survey No. 1 as the same was converted into plots and admittedly Manjeera Pipeline have been laid by the government.

16. Viewing from any angle, the plaintiff is not entitled for any of the reliefs claimed by him but still the defendants to show that the plaintiff had entered into the development agreement and also obtained the lay out had got marked Exs.B.1 to B.4 i.e. Ex.B.1- CC of development agreement document No. 3231/2016 dt. 17.2.16, Ex.B.2- Supplementary agreement document No. 15457/16 dt. 11.7.16, Ex.B.3- CC of gift settlement deed document No. 22235/17 dt. 7.10.17, Ex.B.4-

Approved layout plan by HMDA LP No. 12/ORR/JC/plg/HMDA/2016 dt. 20.05.2016, through DW.1 but as the plaintiff had failed to establish that he 5 LNA, J

is entitled for any of the reliefs claimed by him therefore the rebuttal of the evidence by the defendants does not arise. Accordingly first, second and third issues are answered."

8. Aggrieved by the judgment and decree dated 24.01.2018,

plaintiff preferred A.S.No.30 of 2018 on the file of the Principal

District and Sessions Judge, Sangareddy.

9. On an appeal, the first Appellate Court, being the final fact-

finding Court, re-appreciated the entire evidence and material

available on record and dismissed the Appeal, vide its judgment dated

11.11.2022, thereby, confirming the judgment of the trial Court.

10. The first Appellate Court in its judgment observed as

hereunder:-

"11. Then it has to seen whether the well is required as a source of irrigating the agricultural lands of the plaintiff. The evidence on record clearly shows that the plaintiff has converted the land to non agricultural purpose and converted into a residential lay out after obtaining permission from the HMDA. Once the use of land has been converted from agriculture to non-agriculture purpose the necessity of irrigating the land with the water from the well 6 LNA, J

ceases. Therefore the well is not required as source of irrigation for the plaintiff."

10.1. The first Appellate Court further observed as hereunder:-

"14. In these circumstances since the nature of the Dominant Heritage that is the plaintiff's land has changed and since the purpose for which the easement is claimed has ceased to exist and since the defendants were able to show that the servient Heritage, that is the well, ceased to exist and became unfit for the purposes claimed to be required by the plaintiff for the beneficial use of the Dominant Heritage, the easement is extinguished. The easement is also extinguished by the acts of the plaintiff in converting the dominant heritage into plots and also by his very act of closing the well, as admitted by his own witnesses. In those circumstances the appellant/plaintiff cannot claim any right or title or easement in the well and cannot seek any mandatory injunction to reopen the well. Moreover, the very fact that he suppressed the conversion of the land to non-agricultural purpose shows that he had approached the court with unclean hands and he is not entitled to any equitable relief."

11. Heard Sri K.Anoop Kumar, learned counsel for the appellant

and Sri R. Chandrashekar Reddy, learned counsel for respondent

No.2. Perused the entire material available on record.

7 LNA, J

12. Learned counsel for the appellant contended that the trial Court

as well as first appellate Court erred under law while dismissing the

suit of the appellant without considering the fact that the "Mota bavi"

is an historical monument existing since centuries and is covered

under the Heritage Act. Both courts have not considered the relief

sought for by the appellant to reopen the suit well or allow the

plaintiff to draw water from the suit well by restoring the suit well.