Bhimappa and Others vs Fakkirappa and Others

S.N. Satyanarayana, J.—The 1st and 2nd defendants in O.S. No. 95/1999 on the file of Civil Judge (Jr. Dn.), Laxmeshwar, have come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of plaintiff for the relief of declaration that DCEF portion of canal passes through the land belonging to the plaintiff, therefore the defendants should not interfere with the flow of water through DCEF portion of the canal and also for cost and other incidental relief.

The dispute between the plaintiff and defendants in this proceeding passes through a narrow path with reference to the riparian rights of both the parties to flowing water through a canal which is in existence between the property of the plaintiff and also that of defendants. Admittedly the canal passing through the said property is more than 100 years old. On the northern side of the canal the property situated is Sy. No. 19/2 and on the southern side of the canal the property situated is Sy. No. 19/3. It is not in dispute that the land bearing Sy. No. 19/2 is measuring 6 acres 2 guntas out of which 1 acre 31 guntas is poth kharab. Similarly the other undisputed fact in respect of Sy. No. 19/3 is it measures 11 acres 36 guntas out of which 2 acres 37 guntas is poth kharab.

The case of the plaintiff is that the portion of canal which is CDEF in the suit sketch is situated within the poth kharab of 1 acre 31 guntas in Sy. No. 19/2 which belongs to the plaintiff. Therefore the right to maintain the said canal is well within him and the defendants who are the owners of Sy. No. 19/3 situated on the southern side of the canal have no manner of right, title or interest to interfere with the use of said canal water. The suit is filed on 4.8.1999 contending that on 12.7.1999 the defendants tried to deviate the path of water by disturbing the bundh of the canal on its southern side which is northern boundary of plaintiff''s property and in the said suit a declaration was sought that the possession and maintenance of canal is with the plaintiff.

In the said suit the defendants entered appearance, filed the written statement contending that the CDEF portion of the canal falls within Sy. No. 19/3 which according to them measures in all 11 acres 36 guntas out of which poth kharab is 2 acres 37 guntas which is the extent in which the canal is passing through. In the said suit based on the pleadings and evidence on record, the Addl. Director of Land Records was appointed as Court commissioner who after inspecting the canal and also after measuring the lands in both survey numbers 19/2 and 19/3 and also after going through the revenue records submitted his report stating that the CDEF portion of the canal falls within the poth kharab area of 1 acre 31 guntas forming part of Sy. No. 19/2 which is on the northern side of the canal.

The said finding was challenged by the defendant No. 1 in R.A. No. 45/2006 on the file of Civil Judge (Sr. Dn.), Laxmeshwar, wherein on re-appreciation of pleadings and documents available on record the lower appellate Court confirmed the finding of the trial Court by its judgment and decree dated 24.5.2010. As against the concurrent finding of both the Courts below, this second appeal is filed.

When this second appeal came up for admission, heard the learned counsel Sri S.N. Banakar, appearing for the appellants and the learned counsel Sri Laxman T. Mantagani, appearing for the respondent/plaintiff in the trial Court. Perused the records of both the Courts below. On going through the same it is clearly seen that the finding of the trial Court in holding that the portion of canal coming within the boundaries of CDEF is a portion of poth kharab in Sy. No. 19/2 is just and proper in the light of the report submitted by the ADLR who was appointed as Court commissioner in the trial Court. Similarly the said report also discloses that the poth kharab area of 2 acres 37 guntas in land bearing Sy. No. 19/3 of the appellant is the portion which is hillock portion coming on the southern side of Sy. No. 19/3 and not on the northern side where the canal is passing through.

With this it is clearly seen that all the records are supporting the claim of the plaintiff. The finding of the trial Court in holding that the portion of canal which is shown as CDEF in suit sketch is forming part of Sy. No. 19/2, particularly in the poth kharab area of 1 acre 31 guntas of Sy. No. 19/2.

However while observing that this Court would further clarify that though the CDEF portion of canal is passing through the poth kharab area of Sy. No. 19/2, the plaintiff in O.S. No. 95/1999 cannot claim ownership of the said canal for the reason that it is a natural canal which is not formed by the plaintiff or his predecessor in title and that the said canal area has its source in a place which is situated in a land on the eastern side portion of Sy. No. 19/2 and 19/3 and it is passing through these two properties entering from the eastern side proceeding further on its western side and therefore it is a canal with natural course passing between these two lands and said portion falling within the poth kharab area of Sy. No. 19/2 would not indicate that the plaintiff has exclusive title over the said canal as is claimed and understood by all the parties.

That flow of natural course of water through any canal does not become part of the property of absolute ownership to any of the lands adjacent to the said canal. Similarly in the case of lands situated on either side of the canal that is the land of the plaintiff on its northern side and the land of the defendants on the southern side having right to take water form the said canal for the purpose of irrigation. Beyond that they have no right either to meddle with the boundaries or to deviate the flow of water from the said canal.

With such observation the judgment rendered by both the Courts below is hereby confirmed and the second appeal filed by the defendants is hereby dismissed as no substantial question of law arises for considering the correctness or otherwise of the finding of the Courts below.