Kamatam Komuraiah and Others vs Garlapati Sandhya Rani

B.K. Somasekhara, J.—The defendants in O.S. No. 763 of 1983 and the respondents in A.S. No. 82 of 1987 who suffered a decree in the appeal before the learned Additional District Judge, Warangal on 20-7-1988 have come up with this appeal. The respondent is the plaintiff in the suit and the appellant in the appeal. The plaintiff filed the suit for permanent injunction restraining the defendants from interfering with her possession and enjoyment of the suit schedule properties by opening a channel or digging etc. It was dismissed. The plaintiff took the matter in appeal and the learned District Judge allowed the appeal, set aside the judgment and decree of the learned District Munsif and consequently passed a decree for permanent injunction as prayed for in the suit. That is how the appellants who are defendants in the suit and the respondents in the appeal are aggrieved and present this appeal.

The plaintiff is the owner in possession and enjoyment of S.No. 49 measuring Ac. 2.32 guntas situated at Obulapur Village, which is the suit property. There is a rivulet known as Jalu Vagu abutting the land of the plaintiff. Defendants 2 and 3 are the younger brothers of the first defendant. Their lands bearing S.Nos. 42, 43 and 45 of the same village situate abutting on the northern side of the suit land. The suit Land of the plaintiff and the lands of the defendants are wet lands. The plaintiff and the defendants have been making use of the water from Jalu Vagu since a long time. However, the plaintiff dug a well in the suit land for her benefit. The plaintiff alleged that there was no channel in the suit land and the defendants were making use of the water from Jalu Vagu which was over flowing on the suit land. But according to her, the defendants tried to dig a channel over the suit land and damage it and thereby interfered with the plaintiff''s peaceful possession and enjoyment of the suit property and therefore she sought for relief of permanent injunction. The defendants contended that they have got a right to take water from Jalu Vagu over the suit land through the channel which existed since a long time and they did not actually obstruct the right of the plaintiff to enjoy the property except they attempted to take water through the alleged channel over the suit land. In the meanwhile, the parties approached the District Collector, Warangal and also Tahsildar, Ghanpur who had passed certain orders in regard to the use of water by the parties from Jalu Vagu. The following issues were settled in the suit.

"1. Whether the plaintiff is entitled for permanent injunction as prayed for?

To what relief ?"

The learned District Munsif came to the conclusion that the defendants were entitled to take water from Jalu Vagu through the suit land and by taking water they did not interfere with the plaintiff''s right and possession of the suit property and accordingly held issue No. 1 against the plaintiff and dismissed the suit. The learned District Judge disagreed with the learned District Munsif and came to the conclusion that in the facts and circumstances of the case the defendants were interfering with the possession and enjoyment of the suit land by the plaintiff under the guise of taking water and by attempting to dig a channel therein and thus held issue No. 1 in the affirmative and consequently allowed the appeal and decreed the suit for permanent injunction.

Sri Surender Rao, the learned advocate for the appellants has contended that from the admitted facts in the case the defendants were entitled to take water from Jalu Vagu through the suit land as their lands are situated abutting the suit land, and they had no other source of water. It is also his contention that from the evidence it was clear that a channel actually existed on the suit land which came to be closed about ten or fifteen years back and the defendants were making use of the said channel for the purpose of drawing water to their land as and when it is necessary. It is his further contention that in view of the orders of the Tahsildar, Ghanpur, the orders of the District Collector either purported to be in favour of the plaintiff did not create any right or the basis to hold the issue in favour of the plaintiff. He thus concludes stating that the learned District Judge was not right in interfering with the finding arrived at by the learned District Munsif on issue No. 1 and decreeing the suit for permanent injunction. Mr. J. Kanakaiah, the learned advocate for the respondent-plaintiff totally supports the judgment and decree passed by the learned District Judge and contends that the finding of the learned District Munsif was wrong in view of the circumstances of the case and evidence on record. According to him, no channel existed on the suit land as on the date of the suit admittedly and even according to the report of the Commissioner. Mr. Kanakaiah, the learned advocate had made it emphatic that in law the defendants had no right as such for the use of water passing through the suit land except when it overflows, that too during rainy season and that they have no right to dig or open a channel on the suit land for the use of overflowing water. As a whole, he contends that this appeal has no merit.

In view of the admitted facts and the established facts and considering the rival contentions of the parties in this appeal, the simple question that arises for consideration is whether the defendants viz., appellants had any right to take the water passing through the suit land either in regard to the overflowing water during the rainy season or by opening a channel or digging a channel or making use of any channel if it really existed at any point of time. In fact, such a question is fittingly considered by the learned District Judge. The suit land of the plaintiff and the adjacent lands of the defendants are abutting to each other which are wet lands. Both the defendants and the plaintiff are making use of the water from Jalu Vagu for cultivation of their respective lands. However, plaintiff improved the water source by opening a well in the suit land. It is in the evidence that there was a channel on the suit land from Jalu Vagu flowing further and it has been closed since 10 to 15 years prior to the date of institution of the suit. There is no dispute that defendants are making use of the water from Jalu Vagu to their land, however, according to the plaintiff only during rainy season and that too when the water is overflowing and not by opening any channel or digging in the suit land for the purpose of drawing water to their lands. Both the parties and the learned Judges of the Courts below appear to have made much of the orders passed by the District Collector, Warangal and also Tahsildar, Ghanpur in regard to the right of the parties to take water from Jalu Vagu in a particular manner. Ex. A-1 is the certified copy of the memo dated 18-6-1983 in the proceedings dated 2-6-1983 stating that there was a Government channel through which they used to take water and that channel is passing through S.No. 45 and by taking water through that channel the land covered by S.No. 49 is being damaged and the plaintiff objected for taking water accordingly. Ex. B-1 is the orders issued by the Tahsildar on 15-7-1983 wherein it was stated that the lands which have got irrigation source through Kalva are permitted to get water through the separate channel and nobody has got right to obstruct the same and directed the village patel and patwari to supervise the same. The learned advocates for both the sides are unable to satisfy this Court about the basis or powers either of the District Collector or Tahsildar to pass such orders. This Court is not persuaded with the reasoning of either District Munsif or District Judge by making use of Exs. A-1 and B-1 to draw inference regarding the rights of the parties to make use of such water in a particular manner. Possibly the parties might have approached the revenue authorities whenever their rights are infringed or affected so that existing rights may be maintained. But such orders cannot be taken as a basis to decide the rights of the parties particularly in this case. Therefore, such orders should be totally ignored while deciding the rights of the parties in this case except to note that there was an occasion for the parties to approach the authorities with the allegation that the right to make use of the water was either objected or questioned.

Admittedly, the suit land and the lands of the defendants are adjacent to each other as already pointed out. The lands of both of them are wet lands and the water source for the lands of the defendants is Jalu Vagu. It is situated abutting the suit land on the northern side. Even according to the plaintiff the defendants are making use of the water overflowing on the suit land during the rainy season. It is also in evidence that the channel was existing on the suit land and it has been closed since some time. Both from the oral and documentary evidence in the case the existence of such channel passing through the suit land and the other adjacent lands is established beyond any doubt or with all probabilities. Ex. B-4 is the village map. It shows many lands with survey numbers including the suit land viz., S.No. 49. The other adjacent lands are S.Nos. 52, 51, 48, 47, 46, 43 and 40 which are relevant for the purpose of knowing whether any channel or kaluva existed or not. Ex. B-4 shows the existence of such a channel passing through S.Nos. 52, 51, 48, 49 and 40. Admittedly, the defendants must have been making use of the water from such a channel defined in Ex. B -4. From the evidence it is clear that since the plaintiff opened a well in the suit land perhaps the channel could not be made use of by the defendants. It is not in the evidence that the defendants had any other channel or were making use of the water from Jalu Vagu from any other channel except through the channel mentioned in Ex. B-4. It is not in their evidence that they were either allowed or had a right to open any such channel on the suit land for making use of the water from Jalu Vagu. Therefore, it is established that the defendants were making use of the water from Jalu Vagu through the channel found in Ex. B-4.

Whatever may be the oral evidence in the case, Ex. B-4 settles the question of existence of a channel passing through the suit land. Even the commissioner in his report Ex. C-1 and the map Ex. C-2 has pointed out that no such channel is existing passing through the suit land as claimed by the defendants. Therefore, the simple inference would be that the channel which exists as shown in Ex. B-4 passing through the suit land is not shown or exists in the map but the defendants were permitted to make use of the Jalu Vagu passing through the suit land either in defined channel or in any manner perhaps during rainy season only without affecting the rights of the plaintiff to make use of the suit land. The admitted document Ex. B-4 is not only a public document u/s 74 of the Evidence Act but also has a legal status. The contents of it can be taken judicial notice by the Courts u/s 57 of the Evidence Act regarding which no proof is necessary by virtue of Section 56 of the Evidence Act. In that view of the matter, the existence of a channel as mentioned in Ex. B-4 for the purpose of use of water for the defendants from Jalu Vagu passing through the suit land should be taken as established.

It is not the case of the plaintiff that the defendants have got any other source of water. It is also practically conceded that the defendants are entitled to make use of the water flowing through the suit land, however, only during rainy season. It is nobody''s case the Jalu Vagu is a permanent source of water for any land-holders nearby and if there is water in Jalu Vagu then only such land owners shall benefit themselves of the water and naturally the water from Jalu Vagu would overflow on the lands shown in Ex. B-4 in the track of the channel mentioned therein. There is no evidence in the case and particularly the report of the Commissioner disproves the existence of regular channel as shown in Ex. B-4. Therefore, it is proper to note that defendants and other adjacent land owners might have been making use of the water from Jalu Vagu passing through several lands mentioned therein including the suit land mentioned in S.No. 49 but without actually allowing the water to flow in a particular direction or particular track. From the evidence in the case and the findings of the Courts below it must be held that defendants are entitled to take water from Jalu Vagu passing through the suit land in S.No. 49 either due to overflow of the water or by making use of the channel as shown in Ex. B-4 in the manner of a track and not actually digging a channel as such. In view of the user of such water by the defendants to their lands through the suit land for a very long time which cannot be less than 20 years as can be made out from the evidence and particularly from Ex. B-4, they must be taken to have established the prescriptive right within the meaning of Section 15 of the Indian Easements Act, 1882 (in short ''the Act''). It is also a case of easement of necessity within the meaning of Section 13 of the Act. The plaintiff is a servient owner while the defendants are dominant, owners within the meaning of Section 9 of the Act. Therefore, the defendants have established the right to take water from Jalu Vagu passing through the suit land in that capacity, however, without affecting the rights of the plaintiff to enjoy the suit land and without damaging the suit land. Both the Courts below have totally ignored this aspect of the matter and appears to have missed the track in deciding the real issue between the parties.

If the defendants have established their right of prescription for the user of water as above, the Courts are bound to examine as to how such a user can be enforced. It is the complaint of the plaintiff that defendants were trying to dig a channel in the suit land and obstruct her right and possession to make use of the suit land. Under that pretext it is the complaint of the defendants that their right to take water passing through the suit land is being obstructed by the plaintiff. In such a situation Chapter III of the Easements Act regulates the enforcement of such rights and also to regulate the discipline. Section 20 in general formulates the rules to be controlled by contract between the parties for the enjoyment of such prescriptive right or easement subject to the incidents of customary easements. Section 21 bars the use of such rights unconnected with the enjoyment. Section 22 contemplates the exercise of easement in a particular manner. The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined. Section 23 contemplates a situation where such a right may be altered regarding the mode of enjoyment of right of prescription and easement. Certain acts for the enjoyment of such rights are regulated u/s 24 of the Act. According to this provision the owner is entitled as against servient owner to do all acts necessary to secure full enjoyment of easement but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage. This is subject to the accessory rights provided to the enjoyment of such an easement. During the enjoyment of such a right or easement, obviously, certain damage or inconvenience is bound to be caused to the servient owner. Therefore, Section 25 regulates that the expenses incurred in constructing works or making repairs, or doing any other act necessary for the use or preservation of an easement, must be defrayed by the dominant owner. Even the liability for the repairs of any work would be on the dominant owner as employed in Section 26 of the Act. At the same time, the servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement; but he must not do any act tending to restrict the easement or to render its exercise less convenient. The dominant owner cannot alter or increase the right of prescription or easement and that is made emphatic u/s 29 of the Act. If an occasion or possibility occurs, the dominant heritage may be divided into parts not inconsistent with the rights and liabilities of the parties as laid down u/s 30 of the Act. No excessive user of easement is permitted by the dominant owner as against servient owner which is made emphatic in Section 31 of the Act. Patently enough, both the Courts below have appeared to have proceeded with the matter without due regard to these provisions. In this case, the plaintiff is the servient owner and the defendants are dominant owners. Their rights and liabilities are subject to the provisions of Section 20 - 31 in Chapter III of the Indian Easements Act, 1882. The learned District Judge has failed to incorporate these conditions while decreeing the suit. The learned District Munsif has totally missed the point in dismissing the suit without reference to these serious legal implications. Thereby, both the Courts below have violated the legal positions leaving scope to consider serious questions of law as above to come to the correct conclusion to declare the rights of the parties to regulate the same in accordance with law as stated above.

As a whole, although mere are no reasons to interfere with the judgment and decree of the learned District Judge as above, it should be subjected to the regulations, restrictions and limitations mentioned in Sections 20 - 31 in Chapter III of the Easements Act, however, with little modification in the decree passed.

In the result, the appeal is allowed only to modify the judgment and decree passed by the District Judge as follows: The defendants are restrained from interfering with the plaintiff''s peaceful possession and enjoyment of the suit land, however, subject to their right to take water from Jalu Vagu passing through the suit land in S.No. 49 in rainy season or any season when the water overflows over the land or through the channel shown in Ex.B-4, the village map without obstructing the right of the plaintiff in using the suit land in any manner and within the limitations prescribed under Sections 20 - 31 of Chapter III of the Indian Easements Act, 1882 as detailed above. At the same time, the plaintiff shall not prevent the defendants from taking water from the said Jalu Vagu to pass through or over suit land in S.No. 49 subject to the limitations mentioned in the said provisions. Whenever the defendants are to take water to their land passing through or over suit land, they shall be at liberty to approach the plaintiff to allow them to take water in a particular manner. If the plaintiff either does not allow them to take water in a particular mode within the reasonable period, the defendants shall be entitled to take water through the suit land to their lands without causing any damage or injury to the suit land or without obstructing the right of the plaintiff in any manner in regard to the user of the suit land. In the peculiar circumstances of the case, the parties shall bear their costs.