H.R. Gururaj Rao vs H.K. Gundachar and Others

Ravi V. Malimath, J.—The case of the plaintiff is that the drinking water well measuring 6 feet in diameter is a joint well of the plaintiffs family members and one Raghavendrachar. The right to use the well has been purchased by the plaintiffs father under the registered sale deed dated 12.10.1944 along with the house property. Since the date of purchase, the plaintiffs father was in joint enjoyment of the well by making use of it for drinking water purpose. After his death, plaintiff and his brothers were using the suit schedule well for the said purpose. In between the house of the plaintiff and the suit schedule well, there is a property belonging to the heirs of late Raghavendrachar. About 3 to 4 years prior to filing of the suit, the defendant purchased the house along with the joint right over the suit schedule well. That the defendant has no exclusive right over the well. He illegally attempted to close down the well by dumping waste materials etc., The plaintiff approached the police. They directed him to approach the Civil Court. When the defendant approached the Municipal Corporation seeking permission to close the well, plaintiff opposed it. On 11.07.1998, at about 10.30 a.m., the defendant came with a load of sand and waste materials and dumped it into the suit schedule well. Well was closed upto the ground level. The well was the only source of drinking water. Since the plaintiff has a joint right over the well in terms of the sale deed, the instant suit was filed seeking for a declaration that the plaintiff and his family members have a joint right over the suit schedule well and for grant of mandatory injunction to direct the defendant to remove the soil and debris from the suit schedule well and for a permanent injunction to restrain the defendant from operation of the suit schedule well.

On service of summons, the first defendant entered appearance. He denied the joint right of the plaintiff to use the well. He denied the purchase of property and the right in the well by the plaintiffs father.

The case of the defendant is that he purchased the property measuring 34.3 x 55 feet including the suit schedule well from Sri. M.V. Ranga Rao under the registered sale deed dated 09.08.1995. However, since then he is in absolute ownership and possession of the property. Towards the south west corner of the well, there was an old open well which was not in use since 10 to 15 years. It was a dried up well. It was causing nuisance to the defendant''s family. There was a public school in the southern side corner of the well. That the school going children used to look into the well and chances of they falling into it is more. There are more than two incidents in which one dog and a sheep fell into the well and died and the same could not be taken out of the well which resulted in a stinking smell. The people of the locality during the night hours were using the well and the vacant space as a public lavatory. Therefore, the well became a breeding ground for mosquitoes and other insects etc., Therefore, the defendant gave an application to the Zilla Panchayath, Tumkur, to test whether there was a water source in the well to dig further in order to get the water. Zilla Panchayath tested the well and submitted a report that there was no water source in the said well and it was not advisable to dig the well further. The defendant gave a letter to the Deputy Commissioner, Tumkur to close the well. The residents of the locality also gave a petition to the Municipal Corporation with regard to the same but nothing came out of it. That the right of plaintiff is only to draw the water from the well. Since the well is dried up, the question of drawing water will not arise or a similar relief cannot be granted.

The second defendant being the neighbour, is claiming a similar right. It is his case that his grand father Late Krishnachar had three sons including plaintiff and father of the second defendant got separated from the joint family under the release deed dated 11.09.1946. Grand father of the second defendant took a portion of the premises covered under the release deed on a monthly rent from the second defendant. After the death of his grand father, plaintiff being the son continued to be living in the premises as a tenant. Plaintiff did not pay the rent etc., Hence he too sought for dismissal of the suit.

Based on the pleadings, the Trial Court has framed the following issues:

"1. Does the plaintiff proves that himself and his Family members have got joint right in the Suit schedule well?

Does the further plaintiff proves that on 11-7-1998 at about 10.30 or 11.00 A.M. defendant with assistance of Goounda elements has closed the suit well upto ground level?

Does the plaintiff proves that water of suit schedule has been using by him and his predecessors till it closed?

Does the 2nd defendant proves he is exclusive possession of open space and suit schedule well as owner?

Does the first defendant proves that there is no water sources in suit schedule well and he obtained order from the Deputy Commissioner to close the suit schedule well?

Further the first defendant proves that the plaintiff has only limited right for enjoying water in the suit schedule well and not place of suit well?

Whether the plaintiff entitle for the decree as sought in the suit?

What order or decree?"

The plaintiff was examined as PW1 along with another witness and marked 6 exhibits. First and the second defendants were examined as DWs.1 & 2 and 15 documents were marked. Issue Nos. 1, 2, 3 and 7 were held in affirmative. Issue No. 5 was held in negative. Issue No. 4 was held that the defendant No. 2 has common right to use the suit schedule well. Issue No. 6 was answered as plaintiff has right to use the suit schedule well to draw water.

The suit of the plaintiff was partly decreed. It was declared that the plaintiff and his family members have got joint right in the suit schedule well. Defendant No. 1 was directed to restore the well to its original condition by removing the soil and debris from the suit well till the water level within six months, failing which the plaintiff is at liberty to restore it to its original condition at the cost of defendant No. 1. Defendant No. 1 was restrained from obstructing the plaintiff from drawing the water and using the suit schedule well.

Aggrieved by the same, the plaintiff filed RA No. 236/2006. Defendant No. 2 filed RA No. 237/2006. Both the appeals were heard together. By a common judgment and order both the appeals were dismissed by confirming the judgment and decree of the Trial Court. Aggrieved by the same, defendant No. 1 has filed this appeal.

By the order dated 02.12.2011, the appeal was admitted to consider the following substantial questions of law:

"1. Whether the Courts below erred in not distinguishing between plaintiffs limited common right to draw water only from the suit Well with that of right over the property over which the Well is situated?

Whether the Courts below erred in not appreciating that the Plaintiff had no subsisting right to claim the suit relief as on the date of filing of the suit and that the Plaintiffs rights are extinguished?"

For the sake of convenience, the parties will be referred as per their rank before the Trial Court.

Sri. Vigneshwar S. Shastri, learned counsel appearing for the appellant - defendant No. 1 contends that the judgment and decree of both the Courts below are erroneous and liable to be set-aside. That the plaintiff did not have any right to use the well. That even assuming that the plaintiff has a right to use the well, it was only sofar as drawing the water if any from the well. The decreetal for the well is therefore misconceived. Plaint averments and evidence shows that the right of the plaintiff is only to draw the water from the well. In the absence of any water in the well, the right should stood extinguished. He further contends that the judgment and decree of the Trial Court is erroneous. That the judgment and decree is not executable. That it is beyond the pleadings of the parties. That the decree to dig the well till the water level is reached within the period of six months cannot be achieved. Hence the decree is erroneous. Hence, he pleads that the appeal be allowed and the suit be dismissed.

Counsel for the respondents have been consistently absent on all the previous dates of hearing. When the appellant''s counsel was heard, respondents counsel were absent. Even then, in the interest of justice the matter was adjourned many times to enable them to make submissions. Even today also, on two occasions counsel for respondent Nos. 1 and 2 were absent. Suit is of the year 1998. Therefore, I do not find good grounds to adjourn this matter further. In view of the deliberate absence of the counsel for the respondents, I deem it just and necessary to consider the appeal on merits and proceed to order.

The plea of the plaintiff is that he has a right to use the well in terms of the sale deed dated 12.10.1944 vide Ex. P1. That the defendant has wrongly closed the well.

I have considered the said document. The same would narrate that the plaintiffs father had a right to draw the water from the well. In terms of law, the plaintiff did not have any right, title or interest over the well. This is the legal right emanating from Ex. P1 which is only with reference to drawing of water. It is therefore needless to state that the right is only to draw the water and not over the well itself. Even from the recitals in terms of the Ex. D7, which is the sale deed executed in favour of the defendant No. 1 dated 09.08.1995, the recital is to the effect that the defendant has a right to draw the water from the well. Therefore, the clause in Ex. P1 and D7 are similar which entails the purchasers from drawing the water from the well in question. They cannot have a right over the entire well as such. Material has been produced by the defendant in order to show that the well has dried up. Ex. D9 is the endorsement issued by the Zilla Panchayath, Tumkur. The endorsement is issued based on the report submitted by the Geologists. The well is not fit for usage. It would therefore indicate that the well having been dried up, the question of the plaintiff or the defendant exercising their right in order to draw the water would stand extinguished. Therefore, the Trial Court committed a blunder in decreeing the suit to that extent.

Further more, the decree passed by the Trial Court reads as follows:

"It is ordered and decreed that the suit is decreed as prayed with costs. It is declared that plaintiff and his family members have got joint right in the suit well defendant No. 1 is directed by way of mandatory injunction to restore the well to its original condition by moving the soil and the debris from the suit well till the water level within six months, failing which the plaintiff is at liberty to restore it to its original condition at the cost of defendant No. 1, Defendant No. 1 is permanently restrained from obstructing the plaintiff in any manner in using the suit well. It is further ordered that the defendant do pay a sum of Rs. 315/- to the plaintiff on account of the cost of this suit."

The first part of the decree is that the plaintiff and his family members have got a joint right in the suit schedule well. As held herein above, the question of plaintiff having right over the well does not arise. It is opposed to the document of title Ex. P1. The right is only to draw the water and not over the well and therefore such a decree is unsustainable.

The second part of the decree is that the defendant No. 1 is directed to restore the well to its original condition by removing the soil and debris from the suit schedule well till the water level is reached within six months, failing which the plaintiff is at liberty to restore to its original condition at the cost of defendant No. 1.

There is no material placed by the plaintiff to show the original condition of the suit schedule well. The original condition of the well would have to be pleaded and proved by the plaintiff with regard to the length, breadth etc., It is only then that the decree granted by the Trial Court can be executed. Merely to decree that the first defendant should restore the well to its original condition is insufficient. What is the original condition has not been narrated by the Trial Court. The Trial Court should have narrated as to what is the original condition and what is the mandatory injunction. Failure to do so, has therefore rendered the decree to be unexecutable. That the defendant should continue digging the well and remove the debris within six months, goes without saying, that to get the water level cannot be ordered by a decree of the Court. Defendant No. 1 cannot be directed to go on digging the well until and unless the water level is reached. It is not an event that can be ascertained. One can never say, as to what level the water can be reached or whether any water can be reached at all or not. Even otherwise, the compliance of the said order is not possible within the period of six months. To get the water level is therefore beyond a physical possibility. Therefore, this part of the decree also becomes unsustainable.

Under these circumstances, I have no hesitation to hold that the decree is un-executable. The decree that the plaintiff has a joint right in the suit schedule well is incorrect. Right of the plaintiff is only for the purpose of drawing the water and not over the well itself. Second part of the decree that defendant No. 1 is directed to restore the well to its original condition by removing the soil and debris from the suit well until the water level is reached, within six months, is incapable of being executed.

For the aforesaid reasons, I''am of the considered view that the Courts below have committed an error in mis-interpreting the plea of the plaintiff with regard to the plaintiffs limited right to draw water from the well, while wrongly decreeing the right of the plaintiff over the well. The first substantial question of law is accordingly answered.

The second substantial question of law is answered, by holding that in view of the material placed on record that the well is dried up, both the Courts below committed an error in holding that the plaintiff has a right over the well. In view of drying up of the well, the limited right of the plaintiff to draw the water from the well is extinguished.

Substantial questions of law Nos. 1 and 2 are accordingly answered. The appeal is allowed. The judgment and decree dated 16.01.2008 passed in R.A. No. 236/2006 by the Fast Track Court-V, Tumkur and the judgment and decree dated 29.01.2003 passed in O.S. No. 435/1998 by the I Additional Civil Judge (Jr.Dn.) and JMFC, Tumkur are set aside. The suit of the plaintiff is dismissed. However, it is made clear that liberty is reserved to the plaintiff to seek appropriate relief before the Court below, in order to execute the decree. Only thereafter either of the parties would be aggrieved by such a decree. The decree in the present form cannot be executed against the appellant - defendant No. 1.

Appeal is disposed off with the aforesaid observations.