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IN THE COURT OF THE SENIOR CIVIL JUDGE :: :: RAZOLE
Present : Sri I.Karuna Kumar,
Senior Civil Judge, Razole
Thursday, this the 19th day of March 2020.
A.S.20/2019
Between: Meka Ramadevi, W/o.Suryaprakasarao, Age 60 years, Hindu, Advocate, Plot No.206, Srisairam Enclave, Panugantivari Street, R.R.Peta, Eluru (Represented by her General Power of Attorney Holder : Ilapakurthi Veera Hanumantha Rao, S/o.late Udaya Bhaskara Ramarao,Age 68 years, Hindu, ExKaranam, Matlapalem, Yelamanchili Mandal, Narsapur, West Godavari District. ...the Appellant / Plaintiff
And
Konuku Subba Rao, S/o.Late Dharmaraju, Age 50 years, Hindu, Cultivation, D.No.1211/1, Tatipaka Matham (Yetigattu), Razole Mandal. ...the Respondent / Defendant
Appeal against the Judgment and Decree of the Junior Civil Judge, Razole in O.S.22/2012 dated 982017.
Meka Ramadevi ...the Plaintiff
And
Konuku Subbarao ... the Defendant
This is an appeal coming for final hearing before me on 0232020 in the presence of Learned Sri P.Hanumantha Rao, Advocate for the Appellant / Plaintiff; and Learned Sri S.Venkateswara Rao, Advocate for the respondent / defendant; upon perusing the judgment and decree of the primary court, grounds of appeal and other material papers on record, hearing arguments of afore counsels and having stood over the matter for consideration till this day, this court delivered the following :
J U D G M E N T
I.This is an appeal laid assailing the judgment and decree dated 982017 in
O.S.22/2012 being passed by the learned Junior Civil Judge, Razole.
II.Prior to surfing through the averments raised by both parties hereunder 2 during suit stage, this court feels to consider as a ‘preset’ the grounds of the appeal being formulated by the Appellant / Plaintiff herein. It is because, the appeal is fundamentally not to reverberate what has been averred by parties during suit stage, since the same arises out of the “determined” aspects by the primary Court. Thus, grounds of appeal constitute as major ingredient to entertain this appeal; as such, the said grounds are as hereunder as the primary court ought to have considered the following:
1) that the trial court erred in framing an issue about the existence or Bodi when a cement pipe is emanating from the canal into the ‘ABCD’ marked portion of the plaint plan;
2) that the trial Court ought to have considered the fact that in irrigation matters, the government will show only a source of water for irrigation and it is not to take the water;
3) that the trial Court ought have considered the fact that the main grievance of the plaintiff is that the pipe is closed by the defendant, it is impossible for them to take water in ‘ABCD’ portion if it is covered and about topography of the land between Flood Bank and the river proper which is called ‘PADUGAI’;
4) that trial Court ought have considered the fact that the entire land is liable for submersion every year by floods and the features would be changing simply because there is no actual bodi with hands on either side, it can not to be said that there is no bodi;
5) that the trial Court erred in not applying the customs and principles of irrigation as water will be taken through trough over the canals and drainages to irrigate the lands; 3
6) that the trial court ought have considered the fact that in places where there are no regular bodies or canals water would be pooled down and taken for irrigation some times by using motors;
7) that the trial court ought have considered the fact that there is no irrigation system for this particular area which is within the flood bank and which is included in both West and East Godavari Districts and the fact that plaintiff claims afer through the pipe is a ‘customary’ one ever since the canal system being formed :
8) that the trial Court should have also seen that registered documents filed by the plaintiff ExA4, AIl which are long prior to purchasing the same by defendant under ExP3 categorically disclosed that the plaintiff and others have got customary rights to draw water from the pipe situated underneath the flood bank.
9) that the trial court ought to have considered the fact that the
Commissioner in his report found the existence of the pipe underneath bank with head walls;
10) that the trial Court erred in observing that there is no bodi on the ground that there are no regulators for the pipe;
11) that the trial court should have seen that in ‘Ryotvari System’ the pipes which are not regulated by any doors would be operated by placing mould of earth at the face of the pipe and remove it whenever necessary;
12) that the trial Court should have seen that the commissioner noted the pipe into the land of the defendant and naturally water would flow towards west into the land of plaintiff; even though, there is no specific bodi at the time of inspection by the commissioner for cultivation of the plaintiff; 4
13) that the trial Court erred in completely depending upon the evidence of
P.W.1 about the existence of the drainage or non existence of bodi;
14) that the trial Court erred in rejecting the certificates of the VRO of both the villages ExA6 and A7 as they are not proved by examining them;
15) that the trial Court should have seen that if the pipe obstructed the irrigation could become impossible and that there is a threat of violation of the right of the plaintiff by the defendant by closing the pipe by construction of house.
16) that the trial Court should have seen that the plaintiff established her right to draw water from the pipe by documentary evidence and there is no obligation to prove any damage by violation of right;
17) that the trial Court should have seen that there is an action in tort or injunction when right is violated and damage need not be shown;
18) The Lower Court missed the said principle and dismissed the suit only on the ground that there is no bodi.
Hence, it is prayed that this appeal be allowed by setting aside the decree and judgment passed by the primary court.
III.Hence, contextually, it is apropos to have crisp of averments raised by both parties during suit stage. Hence, the plaint averments are :
This suit is filed by the plaintiff to grant permanent injunction restraining the defendant and his men from ever interfering with the ‘ABCD’ portion of bode which is about Ac.0.04 cents in an extent by filling up the same with the earth and for costs of the suit.
It is submitted that a plan is filed showing the location of plaintiff’s land in
RS.No.348/10 and RS.No.335/2 of Pedalanka village and the land of defendant in
RS.No.36/5A in Tatipaka Village, East Godavari District. The culvert with head 5 wall shown as ‘P & Q’ with a pipe underneath the Vasishta Left Bank abetting
Gannavaram canal on east; ‘XY’ is the line of demarcation between the East and
West Godavari Districts in the respective villages. She obtained the property in
RS.No.335/2 under two documents i.e., the settlement deed dt.06.03.1978 and the registered sale deed dt.09.03.1978. The property in RS.No.348/10 was obtained by her through a registered gift deed. To the west of RS.No.335/2 the land in RS.No.348/10 is situated.
It is averred that at the time of formation of “Godavari Irrigation System” in or about 1860 a cement pipe was inserted underneath the Vasishta Left Bank at
Tatipaka village between Tatipaka Matham and Podalada lock. Through the said underneath pipe the water passes from Gannavaram main canal into a bode which is situated in RS.No.36/5A and further towards west into her lands for watering the same. The Irrigation Department of P.Gannavaram is fully aware of the said culvert and the said bode. Herself and her predecessors in title continuously using the said water through the said bode since time immemorial. It also becomes as a ‘customary right’ and same was recognized by the Revenue Department.
It is averred that one Bikkina Venkatachalam was the owner of Ac.0.06 cents in RS.No.36/5A and portion of the bode passing through the said land and same is shown as ‘ABCD’ in the plaint plan. When said Bikkina Venkatachalam tried to alienate the said land to the defendant by closing the said bode, she approached the vendor of defendant, in turn he promised him that he would not close the said bode. Later, she came to know that the defendant after purchasing the land in RS.No.36/5A proclaiming that he would close said bode by filling the same with earth. Nevertheless, the defendant has no right to do so.
It is averred that though the pipe is existing since time immemorial that it 6 was not reflected in ‘ayakattu registers’ as it is an inter district matter. Taking advantage of the non mentioning of the above existence of bode in ayakattu register, the defendant has been making efforts with the help of elders to close the above said bode without having any manner of right. Hence, she constrained to file this suit for permanent injunction restraining the defendant and his men from in any way closing the said bode as he has no right to do so.
Hence, this suit.
IV.The Defendant appeared through his counsel and filed his written statement. The brief averments stemmed out from the written statement of defendant is as follows :
The defendant denied all the averments mentioned in the plaint in verbatim. He further contended that the plan and schedule filed along with the plaint are not correct which doesn’t disclose the schedule properties. It is submitted that he purchased an extent of Ac.0.06 cents of land situated in
RS.No.36/5A which is a ‘dry land’ and same is purchased for the purpose of constructing a house. The said land is lower than other lands in that locality. The said land is a coconut garden and used for construction of houses. Any part of the said land never used as a bode.
It is contended that there is no mention of bode in Government records. If the contention of plaintiff is true and correct, it ought to have mentioned in the ‘ayakattu register’ and other records in the Irrigation Department. There is a register with the ‘Irrigation Department’ showing the source of water to cultivate the particular land in particular survey number. The source of water will be reflected in the said register and same was maintained by the Irrigation
Department which is called as a ‘ayakattu register’.
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It is contended that lands of plaintiff are situated in West Godavari District, as such she might have approached the Irrigation Department of West Godavari to provide water to her lands. As on the date of filing this suit itself the alleged bode is not in existence. So, a mere suit for injunction is not maintainable. The plaintiff failed to implead the Irrigation Department as a party to the proceedings. There is no cause of action for the plaintiff to file this suit. Previously, the plaintiff tried to purchase the land purchased by the defendant. But she failed to purchase the same as such, the present suit filed with all false and frivolous allegations in order to trouble him from constructing his house.
Hence, prays that the Hon’ble Court requested to dismiss the suit.
V.During hearing of this appeal, no additional evidence either oral or documentary adduced by either side.
VI.Heard learned counsel appearing for the appellant / plaintiff and the learned counsel for respondent / defendant.
VII.Hence, this appeal stood before this court for consideration and judgment.
VIII. Now, the points that would arise for consideration are :
1) Whether, there are any warranted circumstances that this court finds to interfere in the judgment and decree passed by the Primary Court ?
2) If so, to what relief ?
X.Let this court proceed to answer Point No.1 :
Whether, there are any warranted circumstances that this court finds to interfere in the judgment and decree passed by the Primary Court ?
This appeal being directed over the judgment and decree passed by the learned Judge, upon examining the oral and documentary testimony dismissed the suit with costs being filed by the appellant herein who is the plaintiff therein
before the trial court.
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The suit on hand before the trial court unlike regular suits is studded with distinct facts on the reason that ‘two’ territorial jurisdictions of Districts involved herein. In a way, to be more clear, the appellant / plaintiff herein has the lands situated in R.S.No.348/2010 and R.S.No.335/2 at Pedalanka which is the hamlet of Doddipatla of Yelamanchili Mandal, West Godavari District.
Therefore, when the lands of appellant / plaintiff are situated at West
Godavari District; a reasonable question that arise in the firmament of facts is; how this Court is vested with territorial jurisdiction of deal with the facts of the suit is a quizzle here to which the answer lies in the averments raised by the appellant / plaintiff herein, but contends to clear and categorical terms that the bodi that was formed at the time of developing “irrigation system” of river ‘Godavari’ in and about 1860; a cement pipe was inserted underneath Vasistha left bank at Tatipaka village between “Tatipaka Matham” and “Podalada lock” through which water passes from Gannavarm main canal into the bodi situated in
R.S.No.36/5A, which further goes towards west into lands belonging to the plaintiff, which facilitate in watering dry lands of plaintiff as shown in the plaint plan. So, when the averments of appellant / plaintiff considered, it is made to clarity that the defendant herein highhandedly trying to close bodi in order to prevent water flowing through this bodi to reach the lands of the appellant / plaintiff herein.
Therefore, this court entertain this dispute as having “territorial jurisdiction” because, the point of bodi is said to have been allegedly prevented by the respondent / defendant herein in facilitating “free flow” of water is situated at
Tatipaka since falls under revenue jurisdiction of Razole; as such this court has territorial jurisdiction over the subject matter of the suit.
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One pertinent glaring defect in the judgment of learned trial Judge is that impressively narration have been made in the judgment holding that the lands of plaintiffs are situated in the jurisdiction of this court as they have been situated at
Pedalanka, hamlet of Doddipatla, Yelamanchili Mandal, West Godavari District.
However, the learned trial Judge in a way failed to consider a very paramount fact that the case of the appellant / plaintiff is admittedly clear that their lands situated in R.S.No.348/10 and 335/2 at West Godavari District, since their main reason of filing the suit is that the defendant allegedly is preventing the free flow of water from bodi situated at Tatipaka under R.S.No.36/5A; the suit in fact arose on the premise of the said facts and that since the subject matter of the suit is situated within the jurisdiction of this court, the suit being laid.
The principal reason or reasons for laying this suit are being enlisted as follows :
i) that the lands of the appellant / plaintiff are situated in R.S.No.348/10 and R.S.No.335/2 of Pedalanka, H/o.Doddipatla, Yalamnchili, West Godavari
District, whereas the lands of the defendant are situated at Tatipaka village in
R.S.No.36/5A; ii) that when the respondent /defendant herein causing obstruction to the free flow of water from ABCD bodi that was laid while developing Godavari irrigation system in or around 1860 that caters the needs of ‘irrigation facility’ watering the lands of appellant / plaintiff situated in R.S.No.348/10 and
R.S.No.335/2; this appellant /plaintiff approached the primary court seeking to have permanent injunction in her favour;
Therefore, the appellant / plaintiff herein ought to have established the following facts before the learned trial Court that are :
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(i) that there is an existence of ‘ABCD bodi’ in R.S.No.36/5A ;
(ii) that the said bodi have been in continuous existence from times immemorial as contended by her;
(iii) that there is free and continuous flow of water from said ‘ABCD bodi’ situated at Tatipaka village in R.S.No.36/5A that by means of having flow of water from ‘ABCD bodi’ irrigates the lands of appellant / plaintiff herein situated in R.S.No.348/10 and 335/2;
(iv) that the respondent / defendant is admitting about preventing free flow of water from ‘ABCD bodi’ existing in R.S.No.36/5A of Tatipaka;
Hence, on the premise of strictosenso the afore necessary postulates to be established by the appellant / plaintiff herein, this court has to examine: whether, the learned trial court navigated the aspects towards right determination of disallowing the suit in favour of the appellant / plaintiff herein or not.
While the appellant / plaintiff have Ex.A1 and A2, registered settlement deeds; Ex.A4 registered gift deed while Ex.A3 is the registered sale deed have any cover of recitals made thereof under the said documents in connection to the appellant / plaintiff herein to have exercise of right over using being flown from
ABCD bodi situated in R.S.No.36/5A to irrigate their lands in R.S.No.348/10 and 335/2 of Pedalanka, H/o.Doddipatla, Yelamanchi Manda, West Godavari District.
Hence, a thorough examination is to be made over these documents that makes or rather in connection to whether, there is any recital made in so far as ‘ABCD bodi’ in the said documents.
Perusal of Ex.A1 to A4 in a categorical manner contains recitals in connection to existence of bodi that facilitate water to the lands situated in
R.S.No.335/2 and 348/10.
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Nevertheless, there is no crystal clear recital made in Ex.A1 to A4, with regard to said ‘bodi’ existing in R.S.No.36/5A and that it has been in existence since the time of its insertion as a bodi by way of cement pipeline as contended by the appellant / plaintiff herein implanted during irrigation system developed in respect of river Godavari in or around 1860.
Thus, it simply is very clear to understand that though Ex.A1 to A4 contains recital about ‘bodi’ since it fails to mention about existence of cement pipe being attached to ‘ABCD bodi’ in the land situated in R.S.No.36/5A; as such. it cannot construed that the said bodi is relating to ‘ABCD’ bodi as shown under plaint plan.
One of the contentions of primary nature by the appellant / plaintiff herein is that said bodi have been in existence from time immemorial or rather, if that immemoriality atleast relating to the year 1860.
Hence, under canons of civil law: when, a party pleads about ‘immemoriality’ of certain fact in existence: then, the party who asserts its existence must or should invariably establish the same without there being any doubt or suspicion over it.
After all ‘immemoriality’ of right of having water from ‘ABCD bodi’ herein means that there should be continuous use of water from ‘ABCD’ portion as shown in the plaint plan by the appellant / plaintiff or since the ancestry ‘ABCD’ portion being used to draw water to irrigate lands of the appellant / plaintiff situated in
R.S.No.335/2 and 348/10 by the germination of ‘Ex.A1 to A4’ documents in favour of the appellant / plaintiff herein.
Now, when Ex.A1 to A4 are considered, their germination was made on 6 31978, 931978, 931978 and 2441995 respectively. So, it means that atleast the plaintiff should establish the ‘immemoriality’ of using water being drawn from 12 ‘ABCD bodi’ from the year 1978 which refers or reflects the year 1978 Exfacie on
Ex.A1 and A2; so, as per P.Ramanatha Aiyer Concise Law Dictionary 4th Edition 2012, the word immemorial means : “from a time whereof the memory of man runs not to the contrary”; so, there is heavy duty cast upon the appellant / plaintiff herein to establish that she has been drawing water from ‘ABCD bodi’ atlest from the year 1978 if not, from times immemorial. However, there is no any material profoundly brought to the light by the appellant / plaintiff herein, in connection to this aspect on the reason that P.W.1 herein deposed in chief examination testifying that the plaintiff and her predecessors in title continuously and used the same openly since times immemorial were and have been using the said water coming through “bodi” through cement pipe from the main canal.
Therefore, the evidence of P.W.1 is that it was a custom since time immemorial and that it has become customary right not only for the plaintiff, but also for others.
According to P.W.1, thus, the revenue authorities of Tatipaka and
Doddipatla of East and West Godavari Districts respectively have recognized the customary right.
Therefore, a perusal need to be overhauled over what has been certified by the said revenue authorities in so far as ‘recognizing’ the “customary right”. Here,
Ex.A6 is the certificate given by the Village Revenue Officer, Tatipaka dated 93 2012; whereas, Ex.A7 being the certificate given by Village Revenue Officer,
Doddipatla of West Godavari Distrct dated 1032012.
Thus, it is evidently clear that the appellant / plaintiff herein is relying on
Ex.A6 and A7 certificates issued by the respective Village Revenue Officers to establish customary right of the appellant / plaintiff to have right of using water 13 from ‘ABCD bodi’ as shown in the plaint plain. Hence, according to the appellant / plaintiff Ex.A6 andA7 are main pillars to establish customary right of the appellant / plaintiff herein, to use water as such, the contention made under
Ex.A6 and A7 are to be examined in a detailed way.
Thus, Ex.A6 contain the following factual aspects :
i) that this certificate was issued by Village Revenue Officer, Tatipaka on 932012; ii) that to the east of the zerayathi dry property full extent in R.S.No.36/5A of Tatipaka; there is canal bund; while, to the east of the said canal bund there is Gannavaram main irrigation canal; iii) that there is a bodi through said irrigation canal; iv) that underneath the said river bank there is bodi to which pipelines or ducts being connected to have free flow of water from said bodi to
Gannavarm canal.
v) that there are cement pials on the eastern and western side of the said river bank;
Further, Ex.A7 contain the following factual aspects :
i) that this certificate was issued by Village Revenue Officer, Doddipatla,
West Godavari District on 1032012; ii) that lands belong to Bikkina Venkata chalam, Meka Satya Prakasarao,
Meka Ramadevi, Meka Krishna Kishore, Bikkina Narayana Murthy situated in Pedalanka village; iii) that the bodi situated at the fringe end of East Godavari District, Razole
Mandal, Tatipaka village which passes all through from Tatipaka to
Pedalanka H/o.Doddipatla, West Godavari District; 14 iv) that the said bodi being bounded by R.S.No.335 and 338 under which lands of appellant / plaintiff and others situated and said bodi also passes through R.S.No.348/10, 336/3, 4 and 335/2D;
So, the main attempt concerning to analysing the contention made under
Ex.A6 and A7 is: to see, whether really the Village Revenue Officers concerned certified the right of the plaintiff to draw water from bodi or not; because, the testimony of P.W.1 very glaringly clear that the said authorities by way of issuance of Ex.A6 and A7 recognized their ‘right customary’ over drawing water from said bodi much less ‘ABCD’ portion as shown in the plaint plan.
However, as could be seen from the afore contents made under Ex.A6 and
A7; under which, detailed points being elicited here, as contended by the appellant / plaintiff herein ‘Ex.A6 and A7’ certificates being issued by Village
Revenue Officers concerned; no where recognized the right of the appellant herein excepting that they certified about existence ‘of bodi’ at Tatipaka river bank through which ducts being connected in flow of water to Gannavaram Channel that ultimately is leading to flow through Pedalanka of Doddipatla village,
Yelamanchili Mandal, West Godavari District.
So, at the very threshold the evidence that P.W.1 proposes in connection to recognition of their customary right by way of issuance of ‘Ex.A6 and A7’ no way can be believed in the absence of said certificate contains no recognition with the effect that the appellant / plaintiff is for drawing water from the said bodi commenced at ‘ABCD’ earmarked portion as shown in plaint plan till the lands situated in the survey numbers as contended by the appellant / plaintiff herein.
Hence, these certificates being marked as ‘Ex.A6 and A7’ through P.W.1 is not able to establish in a commendable way the right of the appellant / plaintiff 15 herein to draw water from ‘ABCD bodi’.
In so far as establishing that the appellant / plaintiff possess customary right of drawing water from ‘ABCD bodi’, the plaintiff examined P.W.3 namely
Ilapakurthi Veera Hanumantha Rao who is an ExSarpanch of Doddipatla village till the abolishment of system of village “karanam” in the year 1984. His evidence is that the appellant / plaintiff’s land is situated in R.S.No.348/10, 335/2 and 338 in Pedalanka village and, according to him there is ‘culvert’ beneath Vasista left bank of Tatipaka Matham village through which irrigation water flows into a bodi from Gannavaram main into the lands of the plaintiff and that the appellant /plaintiff and his predecessors in title have been cultivating their lands being coconut garden, crops of plantain and betel leaves as inner crops in the coconut garden since more than 50 years.
Thus, it evidently goes to show that the appellant / plaintiff herein did not examine the preson who issued Ex.A6, but, a person who has knowledge about
Ex.A6 certification. Hence, the appellant / plaintiff ought to have examined the person who issued Ex.A6 certificate to the effect of recognizing her right of drawing water from ‘ABCD bodi’ through ducts laid from the said bodi to
Pedalanka village H/o.Doddipatla, West Godavari District.
According to P.W.3, there is a revenue record showing that there is a culvert at Vasishta left bank, Tatipaka through which, irrigation water flowing into bodi to the lands of the appellant / plaintiff to the east situated in R.S.No.335/2 and 338.
However, the evidence of P.W.2 is not in connection to using water by the appellant / plaintiff herein from the said ‘bodi’ as contended by the appellant / plaintiff that the certificates being issued under Ex.A6 and A7 are recognizing her 16 right of drawing water from the said bodi.
Hence, except his oral assertion as to the appellant / plaintiff have been exercising right of drawing water through the said bodi, there is no material what so ever nature to confirm the same. So, also the evidence of P.W.2 is about saying that he has knowledge that the lands in possession of the appellant / plaintiff are being collected from irrigation bodi being fixed from ‘culvert’ situated beneath
Vasishta left bank Tatipaka Matham village and that they have been using the same to water the coconut garden, plantain and betel leaves crops. His evidence therefore is simple oral say without there being any support in connection to draw water.
So, fundamentally, the plaintiff though relied on Ex.A6 and A7 she could not make a point that certifications certified as to the appellant / plaintiff drawing water through culverts connected to bodi.
More over, nonexamination of the Village Revenue Officer, who issued
Ex.A6 and A7 is also weak link on the part of the appellant / plaintiff herein.
It is fundamental to note here that why the appellant / plaintiff herein tried to secure the certification Ex.A6 and A7, said to have been issued by Village
Revenue Officers respectively who being the revenue authorities have no authority or knowledge in connection to irrigation system working in an area.
Therefore, it is evident that the appellant / plaintiff ought to have taken assistance of department of irrigation to unearth the facts about existence of bodi and its connecting ducts that helps in free flow of water from said ‘ABCD bodi’ till the point of collection of water at the fields situated in R.S.No.335/2 and 348/10.
It is relevant to observe here that the department of irrigation would have 17 complete structural blue print in connection to establishment of irrigation system at river Vasishta: where ‘bodi’ situated and the connecting ducts for all the purpose laid to water, lead that all things are within the knowledge of the irrigation department but in revenue authorities. So, the inaction of appellant / plaintiff herein to take assistance of irrigation department is not facilitating the actual facts to understand as how canal system works.
Now, coming to as relevancy of admissions during the crossexamination conducted in respect of P.W.1 reveals the following significant facets that are :
(i) he has no personal knowledge regarding inserting of pipe underneath the Vasista left bank in Tatipaka village; then, how he asserts that ABCD bodi existing ducts being drawn in free flow of water is not being explained to clear terms;
(ii) he got personal knowledge regarding water regulatory system executed on the canal side in between ‘2’ head walls.
However, how he got the present knowledge is the fact missing here;
(iii) He cannot say approximately, since how long back the said system became defunct; as according to him, there is no material for working of the said water system;
If it is his evidence, how could he say that water flows from the said irrigation system to his fields; left unanswered;
(iv) In an interesting way, during crossexamination P.W.1 deposed that the land of the defendant submerged during floods along with other lands.
So, without there being existence of lands of the respondent / defendant herein, how he could say that the defendant is stopping water flowing from bodi ‘ABCD’ marked portion of plaint plan through ducts till his land as, his contention 18 is that for the purpose of irrigating his land, the respondent / defendant trying or attempting to stop free flow of water;
(v) His admission in crossexamination is very clear that there is no government record to say that there is existence of bodi as alleged by him: If that were so, how could he say that there is ‘bodi’ is a quarry not answered properly;.
(vi) It is an admitted fact that the right of drawing water from ‘bodi’ is available not only to the appellant / plaintiff herein but, also to the other ryoths.
In such case, when there is no any agitation or a pinch of stimuli that other ryoths experienced in connection to this that the defendant is attempting to stop the free flow of water to irrigate his lands: then, how the appellant / plaintiff herein quote such theory that the respondent is trying not to make an effort to stop the water flow from the said bodi also remained as a questionable aspect;
(vii) His admission that he cannot say, whether; he can examine other ryoths to say that there is water to be drawn from bodi is also missing in his testimony amplifying to understand that other ryoths have no grievance.
(viii) How could P.W.1 certify that there are even no records to show the ‘irrigation system’ or no records with Government, without asking the
Government officials in connection to draw water covered under Ex.A1 to A4.
This admission makes out that without having proper knowledge, P.W.1 deposing the fact about no records with the Government indicates that his evidence is based on “no proper” knowledge.
(ix) More over, P.W.1 admitted very clear that to draw fresh water, there is irrigation board to regulate discharge of use under the drainage bodi and what more is required to understand that this discharge of water being controlled by irrigation board as admitted by P.W.1 herein; 19
(x) The examination of P.W.4 is a document writer is to establish about himself scribing Ex.A11; however, this is not the aspect relating to the subject matter but the issue is whether the appellant / plaintiff is drawing water from ‘ABCD bodi’. As such his evidence need not be further divulged into.
(xi) To the admission made by P.W.1, that there is no water flowing from bodi, the evidence of P.W.5 who was being appointed as an Advocate
Commissioner in the crossexamination being P.W.5 ‘deposed to clarity’ that there is no water in the bodi situated in the land of the defendant to reach the land of the plaintiff. If it is such a case, then, what effort attempting or rather initiates that the respondent / defendant herein cannot administer / operate either to there regulate or to control the water mechanism flowing from ‘ABCD bodi’ to direct the same to have “self benefit” to the land of the respondent to see that no water being flown to the appellant / plaintiff herein. This, therefore, signifies that it is by the event of natural chance or probability, the water not being flown from the bodi to the land of the appellant / plaintiff herein, but not otherwise.
Hence, the evidence of P.W.1 in chiefexamination that one Bikkina Venkata
Chalam Babu is land lord of Tatipaka village who got political influence as his wife acted as Sarpanch of Tatipaka village is the owner of Ac.006 cents in
R.S.No.36/5A and that the portion of bodi passing through Ac.006 cents as shown in ABCD marked portion in the plaint plan.
According to P.W.1, it appears that he has been making attempts to close down ABCD portion by covering it with earth and sold away the land to the defendant and that himself raised a dispute with him who has given vain promises that he would not close bodi.
Therefore, the evidence of P.W.1 fortifies to contend that since one week 20 prior to filing of the suit, the respondent herein was proclaiming that he purchased Ac.006 cents of land and that he would close down the entire ‘ABCD portion’ which is more than Ac.004 cents to which the respondent is not entitled to do so.
Upon premise of this, the basic averment made through the testimony of
P.W.1, except contending that there is an attempt made by the respondent / defendant to close bodi there is no material being brought by the appellant / plaintiff herein in connection to the attempts of the respondent / defendant are true and that the same have been continued by him even by the date of deposing his evidence. Therefore, at any rate, one predominant aspect for consideration here is perse Indian Easement Act, 1982, according to Section 7 of Easements restrictive of certain rights ClauseB reads : Rights to advantages arising from situation. The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.
Under Section 7 certain explanations are quite relevant that reads : Land is in its natural condition when it is not excavated and not subjected to artificial pressure; and the "subjacent and adjacent soil" mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.
So, the said right only arises, if there is free flow of water; however, perse the evidence of P.W.1 and P.W.5, there is no water flowing from bodi. In such event of matrix of facts, how P.W.1 evidenced that water is being drawn to water his cultivation is fact not properly explained and left in submergence. In so far as infringment of rights of riparian rights and injunctions, in ‘Law of Injunctions’ 21 written by P.S.Narayana in Page No.247 had a clear mention that reads :
“The interference of equity by the writ of injunction is frequently invoked to restrain nuisances to water and the infringement of riparian rights. As the incident to the ownership of the adjoining soil, riparian proprietor has an interest of usufruct any nature in the water flowing past his land which equity will protect. The right or interest being common to all owners of land adjacent to a stream no proprietor can in the absence of a right to exclusive enjoyment, use the water in such manner as to injure adjoining proprietors. Nor can be, unless authorized by adjacent owners divert the water from it natural course, to the injury of the owner below or change its quality or diminish the quality or cause it flow back upon the land of proprietor above.”
So, when the other ryoths having no whisper or cry over the respondent / defendant causing obstruction in free flow of water, how could appellant / plaintiff herein avers and frame a theory that the respondent / defendant herein is causing an attempt to close ‘bodi ABCD’ to divert the water to flow to his land exclusive without flowing it to land belonging to the appellant / plaintiff herein.
More so, ABCD as shown in the plaint is according to the appellant / plaintiff as a system developed during 1860 as Godavari irrigation system. So, the said ‘bodi ABCD’ comes under the very definition of public property.
Therefore, if any individual tried to interfere or have an interference over bodi much less ABCD portion: certainly, the department concenred has to initiate acation by filing criminal case; because, in the Indian Penal Code being penal statute, there is punishment for an individual who causes harm, damage or loss to the public property. Here, there is no such a whisper from the side of the 22 appellant / plaintiff herein in so far as such initiation by the department concerned to initiate action against the respondent / defendant herein, who caused or said to have caused or said to have attempted to stop free flow of water from ‘ABCD bodi’.
Hence, had it been the case that the respondent is obstructing or causing injury to works of irrigation or willfully diverting water, the said department ought to have initiated action of criminal nature as Section 430 of the Indian
Penal Code in connection to Mischief by injury to works of irrigation or by wrongfully diverting water thus reads: Whoever commits mischief by doing any act which causes, or which he knows to be likely to cause, a diminution of the supply of water for agricultural purposes, or for food or drink for human beings or for animals which are property, or for cleanliness or for carrying on any manufacture, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.
Even without there being no any claim by the concerned department in so far as leveling the charge of criminal nature against the the respondent; it cannot be said that he interfered or rather attempted or had an intention to divert water flowing from ABCD to his fields to restrict the same not to flow to the fields belonging to the appellant / plaintiff.
For all these reasons, as observed this appeal is liable to be dismissed confirming the judgment passed by the trial court as there is failure on the appellant / plaintiff to establish that the respondent / defendant prevented the free flow of water to lands.
Accordingly, this point answered.
XI.Let this court to proceed answer Point No.2 :
23
To what relief ?
In the result, appeal be and do hereby dismissed confirming the decree and judgment passed by the Learned Junior Civil Judge, Razole in O.S.22/2012 dated 0982017. Each party do bear their respective costs.
Dictated to Stenographer, transcribed by him, corrected, pronounced and
signed by me in the open court on this the 19th day of March 2020.
Sd/ I.Karuna Kumar
SENIOR CIVIL JUDGE
RAZOLE No additional oral or documentary evidence adduced on either side.
Sd/ I.Karuna Kumar S.C.J.
// True copy //
Senior Civil Judge,
Razole 24
IN THE COURT OF THE SENIOR CIVIL JUDGE :: :: RAZOLE
Present : Sri I.Karuna Kumar,
Senior Civil Judge, Razole
Thursday, this the 19th day of March 2020.
A.S.20/2019
Between: Meka Ramadevi, W/o.Suryaprakasarao, Age 60 years, Hindu, Advocate, Plot No.206, Srisairam Enclave, Panugantivari Street, R.R.Peta, Eluru (Represented by her General Power of Attorney Holder : Ilapakurthi Veera Hanumantha Rao, S/o.late Udaya Bhaskara Ramarao,Age 68 years, Hindu, ExKaranam, Matlapalem, Yelamanchili Mandal, Narsapur, West Godavari District. ...the Appellant / Plaintiff
And
Konuku Subba Rao, S/o.Late Dharmaraju, Age 50 years, Hindu, Cultivation, D.No.1211/1, Tatipaka Matham (Yetigattu), Razole Mandal. ...the Respondent / Defendant
Appeal against the Judgment and Decree of the Junior Civil Judge, Razole in O.S.22/2012 dated 982017.
Meka Ramadevi ...the Plaintiff
And
Konuku Subbarao ... the Defendant
This is an appeal laid assailing the judgment and decree dated 982017 in
O.S.22/2012 being passed by the learned Junior Civil Judge, Razole.
Appeal presented on 2192017 and registered on 0242019.
Value of the appeal is Rs.10,000/ ; thereon a court fee of Rs.786/ is paid 25 under Sch.I Art.I (c) of A.P.C.F. & S.V.Act.
This is an appeal coming for final hearing before me on 0232020 in the presence of Learned Sri P.Hanumantha Rao, Advocate for the Appellant / Plaintiff; and Learned Sri S.Venkateswara Rao, Advocate for the respondent / defendant; upon perusing the judgment and decree of the primary court, grounds of appeal and other material papers on record, hearing arguments of afore counsels and having stood over the matter for consideration till this day, this court delivered DOTH ORDER AND DECREE as follows :
i.that the appeal be and do hereby dismissed; ii. that the decree and judgment passed by the Learned Junior Civil
Judge, Razole in O.S.22/2012 dated 9082017 do hereby confirmed;
iii. that both parties do bear their respective costs.
Given under my signature and seal of this court on this the 19th day of March 2020.
SENIOR CIVIL JUDGE
RAZOLE No costs memo filed on either side.
S.C.J.