Shivakumar Swamy Madappa vs Smt Basamma, Mallanna, Karibasappa and Mahadevappa

A.S. Bopanna, J.—The appellant heroin is the plaintiff in 0.5. No. 59/1997. The suit in question was filed seeking for a judgment and decree of permanent injunction against the defendants from interfering with the right of the plaintiff to use the water through the suit ''A'' schedule water course for agricultural purposes to cultivate their lands. The Trial Court has dismissed the said suit by its judgment and decree dated 22.10.2003. The plaintiff was therefore before the Lower Appellate Court in R.A. No. 66/2003. The Lower Appellate Court after re-appreciating the matter, has dismissed the appeal by its judgment dated 03.04.2006. The plaintiff therefore claiming to he aggrieved by the concurrent judgments of the Courts below is before this Court.

The case of the plaintiff before the Trial Court was that the ''A'' schedule property is a kharab land measuring 15 guntas in Sy. No. 215/2 of Eshwaragowdanahalli and there is a water course in the said land running from North to South. According to the plaintiff, on the western side of the water course, the ''B'' schedule property belonging to the plaintiff is situate in the said Sy. No. 215/2 which measures 1 acre and on the eastern side, the ''C'' schedule property belonging to the defendants is situate. The grievance therefore is that despite the plaintiff and the defendants can only make use of the water course situate in the kharab land, the defendants are in fact cultivating in the said land itself which has effected the plaintiff''s right to use the water and therefore, the injunction has been sought for by the plaintiff to restrain the defendants from such act so that the plaintiff can use the water course for his cultivation.

The defendants on being served with the suit summons, have admitted with regard to the nature of ownership of the properties in Schedule ''B'' and ''C'' properties and also the fact that the schedule ''A'' land is the kharab measuring 15 guntas and the water course. However, the contention of the defendants is that the plaintiff has without any cause approached the Trial Court and therefore the suit requires to be dismissed.

The Trial Court based on the rival contentions initially framed three issues for its consideration and thereafter, framed three additional issues.

In order to discharge the burden case on the parties, the plaintiff examined himself an PW-1 and got marked the documents at Exs.P1 to P7. The defendant No. 2 examined himself as DW-1 and exhibited the documents at Exs.D1 to D6. A Court Commissioner was also appointed during the proceedings and he was examined as CW-1.

The Trial Court on analysing the evidence available before it has also taken note of an earlier suit between the parties in O.S. No. 41/98 with regard to a similar nature of dispute relating to the use of the water. Based on the said judgment and also appreciation of the evidence presently, the Trial Court was of the view that the plaintiff has not made out a case for injunction. While coming to such a conclusion, the Trial Court has also noticed the fact that the ultimate dispute between the parties is not with regard to the immovable property itself, but is only relating to the use of the water course by either of the parties for the purpose of cultivation and as such, has noticed Section16(e)(vii) of the Karnataka Land Revenue Act regarding the remedy available to the parties. In such event, with regard to the use of water course and in that context, had also noticed that in view of the provision contained in Section 41(h) of the Specific Relief Act when such a remedy is available, the plaintiff cannot rush to the Court for the purpose of injunction. When this aspect of the matter is noticed and in that background, if the entire case put forth by the parties to this suit is perused, admittedly, the dispute is mainly with regard to the use of water from the water course which is said to be flowing in the 15 guntas of kharab land situate in By. No. 215/2. Therefore to the said extent, the Trial Court was justified, since the aspect with regard to the nature of the use of water would have to be ultimately decided by the Revenue Authorities fey taking into consideration the reality with regard to the topography of the land and the manner in which the lands belonging to the plaintiff and the defendants are situate on either side of the water course and it is also incumbent on the Revenue Authorities to prevent the blocking of the water course by any persons, since such water course would be available to the agriculturists who cultivate the lands on either side of the water course.

Therefore, when the Trial Court had come to such a conclusion insofar as the manner of refusing injunction I am of the view that the Trial Court should also have avoided first determining the issue with regard to the rights claimed to come to such a conclusion that the plaintiff had not made out a case and thereafter, deny the relief indicating an alternate relief. However, since the ultimate conclusion is justified and since in this regard, the Lower Appellate Court has also re-appreciated the evidence and has affirmed the judgment passed by the Trial Court, all that is required to be noticed and observed while disposing of the present appeal is that the plaintiff-appellant would still have the liberty of approaching the Revenue Authorities as contemplated in law and pointed out by the Trial Court and while the appellant makes out such grievance before the Revenue Authorities in accordance with the provisions of the Act, the Authorities will consider the grievance of the appellant independent of the findings which have been rendered by the Trial Court, since ultimately the relief has been refused to the plaintiff based on the alternative relief that is available to the plaintiff.

Therefore, with regard to the right of the parties to the use of water course, all questions are left open to be considered by the Revenue Authorities depending on the case that would be made out before them and it is only thereafter, if need be, the parties would ho at liberty to approach the appropriate forum.

With the above clarifications, the appeal stands disposed of. No order as to costs.