B. Nagaraju and B. Nagaraju vs C.K. Nanjundaian and Executive Engineer, Electrical, Karnataka Electricity Board, Now K.P.T.C.L., M.C. Road, Mandya-571401

A.S. Pachhapure

The appellants have challenged the Judgment and Decree of the first appellate Court, allowing the appeal of respondent No.1 and granting a decree in his favour for the relief of declaration and mandatory injunction. The facts relevant for the purpose of this appeal in brief are as under:

The parties are referred to as they were referred in the original proceedings, for the sake of convenience.

The appellants herein are defendant Nos.1 and 2, whereas respondent No.2 is defendant No.3 and respondent No.1 is the plaintiff, who instituted the suit for the relief of declaration and mandatory injunction. The suit property i.e., Sy. No.54 new No.697 of Gutlu village was the Government Land. One acre out of this survey number was granted to one Boraiah, who sold the said land i.e., the suit property in favour of the plaintiff under a registered Sale Deed dated 15.03.1969 under Ex.P14. As the grant of land was set aside, the plaintiff sought for grant of the land on the ground that he is in possession of the suit property under the Sale Deed. It was granted to the plaintiff vide Order in No.LND.cr.659/78-79, dated 08.12.1979. As averred by the plaintiff, there is a open well in the corner of the suit property and he was using the water for growing crops. The plaintiff had given a concession/permission to use the water in the open wall to the father of defendant Nos. 1 and 2 and the lands of defendants 1 and 2 are on the eastern side of the suit property. Both the plaintiff and father of defendant Nos.1 and 2 had installed pump-sets to draw water and electricity supply was taken to the pump-sets.

In due course of the time, as the water in the open well was not sufficient, the plaintiff terminated the license to defendant Nos. 1 and 2 to draw the water by issuing a notice. As defendant Nos. 1 and 2 did not comply with the said notice, the plaintiff was constrained to institute the suit for declaration that defendant Nos. 1 and 2 have no subsisting right to draw water from the open well and for mandatory injunction to remove the pipe line, the pump-set installed in the pump house and a direction to defendant No.3 to stop supply of electricity to the pump house of defendant Nos. 1 and 2

Defendant Nos. 1 and 2 filed their written statement denying the averments and it is their specific claim that the open well was sunk at the costs of the plaintiff and their father and that it is a common wall. So also, they contend that there is no relationship of licensor or licensee and they do not admit the execution of any document permitting them to draw the water. Furthermore, it is their contention that the open well is not in the land bearing Sy. No.S4/New No.697 and that the well has been sunk in the Government Land for which both the parties have incurred expenses. The said defendants also contend that they have an equal right in the common well to draw the water to their land and therefore, they contend that the plaintiff has no authority to state that they are the licensees and the termination of license is illegal and has no sanctity of law. They contend that their father was an illiterate and he was just knew to put his signature and was not able to read a document and taking the disadvantage of this position, the plaintiff has created a false and fictitious document. On these grounds, he has sought for dismissal of the suit.

Defendant No.3 filed his written statement denying the allegation made, but agreed to abide by decision of the Court, as the lis is between the plaintiff and defendant Nos. 1 and 2.

On the basis of these pleadings, the trial Court framed the issues. The parties went for trial. The plaintiff examined himself as P.W.1 and 2 witnesses P.Ws.2 and 3 and in their evidence documents Exs.P1 to 20 were got marked. Defendant No.1 was examined himself as D.W.1 and 2 witnesses D.Ws.2 and 3 and in their evidence documents Exs.D1 to 12 were got marked. The trial Court after hearing learned counsel for the parties and on appreciation of the material on record, dismissed the suit. Aggrieved by the Judgment and Decree, the plaintiff preferred an appeal in R.A. No.203/2005 and defendant Nos.1 and 2 preferred an appeal in R.A. No.204/2005 against the said findings. The first appellate Court clubbed both the appeals and after hearing learned counsel for the parties, allowed the appeal of the plaintiff filed in R.A. No.203/2005 and dismissed R.A. No.204/2005 vide Common Judgment and Decree dated 09.12.2011. Aggrieved by the Judgment and Decree of the first appellate Court, defendant N35.1 and 2 are in the appeal before this Court.

This Court on 13.07.2012 has raised the following substantial question of law for consideration:

Whether the first appellate Court committed an error in interpreting the documents-Exs.P1 and Ex.D1 and thereby erred in reversing the Judgment and Decree of the trial Court?

I have heard learned counsel for both the parties.

It is the contention of learned counsel for the appellant that there is no reference of well in the grant Order-Ex.P2 and the Sale Deed-Ex.p14 and therefore, he contends that, the Courts below committed an error in holding that the open well is in Sy. No.54 i.e. the suit property. He submits that the open well is in the Government land and both the parties have sunk well by incurring the expenses equally and have a equal right to draw the water from the said open well for supply of the same to their lands. He also submits that there is no relationship of licensor or licensee between the parties and the document-Ex.P1 is a concocted document and some alterations have been made in the said document se as to suite the purpose of the plaintiff and therefore, he submits that Ex.P1 cannot be relied on for any purpose. Alternatively, he submits that Ex.P1 confirms an equal right to draw water from the suit well and this authority of drawing water from the well cannot be terminated by such a notice.

Per contra, learned counsel for respondent No.1 submits that the question raised by this Court is not a substantial question of law and as there are concurrent findings that the well is situated in Sy. No.54, the appellant has no right to challenge the said finding. Furthermore, he submits that the well is sunk by the plaintiff at his own costs and drawing the water from the said well was by way of a license and the said license having been terminated, defendant Nos.1 and 2 have no right to draw the water after termination of the license. He also submits that defendant Nos.1 and 2 do not admit the very execution of Ex.D1, now cannot contend a flow of inherent right under the said document and that they have an equal right to draw water from the said well. On these grounds, learned counsel for respondent No.1 has sought for dismissal of the appeal.

Learned counsel for respondent No.2 contend that after obtaining consent of the plaintiff, electricity was supplied through toe installation by respondent Nos.1 and 2 in the open well and in case if the Court decides and that they would abide by the decision of the Court and take appropriate action as directed by the Court.

A test to determine as to whether a question of law raised in the substantial question or not cannot be dependent upon, whether it is directly and substantially affects the rights of the parties and whether it is of general public importance or whether it is either an open question in the sense that it is not finally settled by the Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. That is how the Apex Court laid the dictum in the decision reported in (2005)7 SC 60 [Rajeshwari Vs. Puran Indoria].

In the decision reported in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, it is held that the High Court cannot substitute its own opinion for that of the First appellate Court unless it finds that the conclusions drawn by the lower Court were erroneous being (1) contrary to the mandatory provisions of applicable law; or (2) contrary to the law as pronounced by the Apex Court; or (3) based upon inadmissible evidence or no evidence. The apex Court also observed that mere appreciation of the facts, the documentary evidence or the meaning of entries and.6.1e contents of the document cannot be held to be raising a substantial question of law. It has also been held by the Apex Court that there is no jurisdiction to entertain a second appeal on the ground or an erroneous finding of fact, however gross or inexcusable error may seem to be. So, placing reliance on these decisions, it is contended by learned counsel for the respondent that the question that has been raised is not a substantial question of law and therefore, the appeal has to be dismissed. As the first appellate Court has held that the well is in the land of the plaintiff, who is the owner of the said well and that a concession was given to the father of defendants 1 and 2 to withdraw the water.

In the decision reported in Bholaram Vs. Ameerchand, wherein the Apex Court held that the interference by the High Court in e second appeal mainly on the ground that the findings were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note would not amount to a substantial question of law and the High Court is not entitled to interfere in the absence of a clear error or law.

In the decision reported in E. Mahboob Saheb Vs. N. Sabbarayan Chowdhary and Others, wherein the Apex Court held that the High Court cannot interfere with the finding of fact and substitute its own findings on its place.

The trial Court has dismissed the suit by interpretation of Ex. P1 and construing it as a document under which the rights flow in favour of both the parties to draw water from the well and the first appellate Court has interpreted the said document holding that the right of the defendants to draw water was by way of license. So, in the circumstances, the question as to whether the document Ex.P1, xerox copy of which has been produced by the defendants at Ex.D1 and its reasonable interpretation and construction would be a substantial question of law for consideration by this Court.

Before proceeding with this question, it is necessary to find out as to whether the well is situated in the suit property or otherwise. On this aspect of the matter, the plaintiff has relied upon the documents Exs. P1, P. and P13. At the first instance to consider the recital in it is relevant to note that there is reference of the existence of the well in the suit property bearing Sy. No.54 and in the document-Ex.P2 which is a Grant Order dated 08.12.1979 granting the suit property bearing Sy. No.54 in favour of the plaintiff. It is referred that the suit property was granted to one Bonashetty and it was sold by him in favour of the plaintiff and the Grant Order was cancelled. It is further referred that the plaintiff applied for grant of this land as he had incurred expenses for installing a pump-set in one acre of the land in the said survey number. So, this fact also substantiates the contention of the plaintiff that the well in dispute is in the suit property itself. Ex. P13 is the survey sketch and the survey was held in APR 2/74-75 and the suit well has been shown in the suit property itself. This document has come into existence at a time when there was no controversy between the parties as regards existence of the well. So from these materials, both the Courts below have concurrently held that the disputed well is in the suit property itself. The concurrent finding of the Courts below on this aspect is substantiated by the documents referred TO above. Hence, it has to be concluded that the oil in dispute is in the suit property in possession of the plaintiff.

Ex. P1 is a document signed by the parties addressed to the Executive Engineer of the Electricity Board at Mandya and both of them have stated in this document that they are drawing water to their lands from the suit well and they have an equal right to draw water from the said well. In this context, both of them have requested for supply of electricity to the pump-set installed in the well. Even on the question as to who dug the well in the suit property, the Courts below have held that it is the plaintiff who dug the well at his own expenses. Though the defendants contended that he has also contributed expenses for digging the well, there is no material in this regard. It is because of this reason that the Courts below concluded that the suit well is dug by the plaintiff, by incurring his own expenses. Therefore, it is proved that the suit well is of its exclusive ownership of the plaintiff. In this context, if Ex.P1 is to be interpreted as a contract between the parties to draw water from the well, there is no mention of any consideration for the said Agreement between the parties. It is well-established principle of law that a contract without consideration is void. Furthermore, though the defendants contended that he has a right in the well, no documents have been produced to prove the same. When he claims a right in the well, it is equivalent to a claim of interest in the immovable property. Then there has to be a registered document. Even that apart, there is no document between the parties to establish right of the defendants to draw water from the well. Ex. P1 is the document, which has been addressed to the Executive Engineer of the Electricity Board of the Mandya Division and it is not a contract between the parties. It is in the context of these circumstances that the first appellate Court held that the defendants have no perennial right to draw water from the well and that this document is a license and the said license can be terminated at any time.

Learned counsel for the appellants has relied upon the provisions of Section 52 of the Easements Act and it defines "Licence" as under:

Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable propenty of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.

So, as could be seen from the aforesaid provision, it is a grant by one person to another a right to do, in or upon the immovable property of the grantor and this right does not amount to an easement or an interest in the property. So, when the appellants have not proved a right in the well, the right to draw water is a licence and it cannot be either easement or an interest in the property. Learned counsel for the appellants placed reliance on the decision of the High Court of Madral., reported in AIR 1998 Mad 148 [P. Perumal Naidu and others Vs. Krishnaswamy Naidu and others]. The facts reveal that the parties to the suit entered into a Partition Agreement dividing the property and giving themselves certain rights. So, in the circumstances, it was held that they have an interest in the property by way of a division and therefore it is not a licence. Rather the principle laid-down by the Hon''ble High Court is contrary to the cootention raised by the appellants in this appeal, When the appellants do not have right in the well and there is no consideration for the contract between the parties, it cannot be said that the appellants have a perennial right to draw water from the suit well. Despite the fact that the correction in Ex.P1 is considered as having an equal right to draw water, as the appellants have no interest in the well i.e., immovable property, the question of claiming permanent right to draw water does not arise for consideration. The first appellate Court on the basis of the material placed on record has rightly held that the document Ex.P1 is at the most a licence and as the plaintiff had no sufficient water for his own purposes, terminated the license to draw water, I do not think that there is any error or illegality in the Judgment of the first appellate Court in decreeing the suit of the plaintiff. In the circumstances, the substantial question of law raised is answered in negative.

In the result, the appeal fails and it is dismissed. No costs.