Sri K.Suresh Babu

Dt.31.07.2018 1 Common judgment

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, ADDANKI

Dated this the 31 st day of July, 2018.

Present : SRI KALIVE SURESH BABU Prl.Junior Civil Judge, Addanki

Original Suit No.343 of 1999

1. Tanneeru Papaiah (died)

2. Tanneeru Ramaiah, S/o.Veeraiah, 60 years,

3. Tanneeru Audinarayana, S/o.late Papaiah, 56 years

4. Tanneeru Venkateswarlu, S/o.late Papaiah, 54 years

5. Tanneeru Ramanjaneyulu, S/o.late Papaiah, 52 years

6. Tanneeru Ravi Kumar, S/o.late Pichaiah, 40 years defendants 2 to 6 are Hindus, cultivation, R/o.Valaparla village, Martur Mandal,

7. Kunchala Subbaramulu @ Subbaravamma, W/o.late Ramanjaneyulu, 49 years, Thathapudi village, Chilakaluripeta, Guntur District.

8. Gungi Gangamma, W/o.Ramanjaneyulu, 45 years, Hindu, cultivation, R/o.Makkenavaripalem village, Santhamaguluru Mandal.

9. Thanneeru Anil, S/o.late Ramanjaneyulu, 24 years 10.Thanneeru Umamaheswara Rao, S/o.late Ramanjaneyulu, 21 years 11.Thanneeru Mallikarjuna Rao, S/o.late Ramanjaneyulu, 20 years 12.Thanneeru Achamma, W/o.late Ramanjaneyulu, 50 years defendants 9 to 12 are Hindus, R/o.Valaparla village, Martur Manda.

Plaintiffs 3 to 8 are legal representatives of deceased 1 st plaintiff amended

as per orders in I.A.487/12 Dt.16.8.2013

Plaintiffs 9 to 12 are L.Rs of deceased 5 th plaintiff, amended as per orders

in I.A.692/17 Dt.1.9.2017. … Plaintiffs

Vs.

1. Marella Anjaneyulu, S/o.Kotaiah, 70 years

2. Marella Hanumantha Rao, S/o.Anjaneyulu, 45 years

3. Marella Kotaiah, S/o.Anjaneyulu, 35 years. All are Hindus, cultivation, R/o.Darsi village and Mandal, Prakasam District. … Defendants

Original Suit No.358 of 1999

Marella Anjaneyulu @ Anjayya, S/o.Kotaiah, 55 years, Hindu, cultivation, R/o.Darsi Agraharam, Martur Mandal. … Plaintiff

Vs.,

1. Tanneeru Papaiah (died)

2. Tanneeru Ramaiah, S/o.Veeraiah, 58 years,

3. Tanneeru Audinarayana, S/o.late Pichaiah, 42 years

4. Tanneeru Venkateswarlu, S/o.late Pichaiah, 40 years

5. Tanneeru Ravi Kumar, S/o.late Pichaiah, 38 years

6. Tanneeru Ramanjaneyulu, S/o.late Pichaiah, 30 years defendants 2 to 6 are Hindus, cultivation, R/o.Valaparla village, Martur Mandal,

Dt.31.07.2018 2 Common judgment

7. Kunchala Subbaramulu @ Subbaravamma, W/o.China Anjaiah, 34 years, Hindu, Housewife, Thathapudi village, Guntur District, Chilakaluripeta.

8. Gungi Gangamma, W/o.Anjaiah, 36 years, Hindu, Housewife, Makkenavaripalem village, Santhamagulur Mandal.

9. Thanneeru Anil, S/o.late Ramanjaneyulu, 24 years 10.Thanneeru Umamaheswara Rao, S/o.late Ramanjaneyulu, 21 years 11.Thanneeru Mallikarjuna Rao, S/o.late Ramanjaneyulu, 20 years 12.Thanneeru Achamma, W/o.late Ramanjaneyulu, 50 years defendants 9 to 12 are Hindus, R/o.Valaparla village, Martur Manda.

Defendants 3 to 8 are legal representatives of deceased 1 st defendant

amended as per orders in I.A.661/12 Dt.16.8.2013

Defendants 9 to 12 are L.Rs of deceased 6 th defendant, amended as per

orders in I.A.693/17 Dt.1.9.2017. … Defendants

Original Suit No.72 of 2002

Marella Anjaneyulu @ Anjayya, S/o.Kotaiah, 57 years, Hindu, cultivation, R/o.Darsi Agraharam, Martur Mandal. … Plaintiff

Vs.,

1. Tanneeru Papaiah (died)

2. Tanneeru Ramaiah, S/o.Veeraiah, 58 years,

3. Tanneeru Audinarayana, S/o.late Pichaiah, 42 years

4. Tanneeru Venkateswarlu, S/o.late Pichaiah, 40 years

5. Tanneeru Ravi Kumar, S/o.late Pichaiah, 38 years

6. Tanneeru Ramanjaneyulu, S/o.late Pichaiah, 30 years defendants 2 to 6 are Hindus, cultivation, R/o.Valaparla village, Martur Mandal,

7. Kunchala Subbaramulu @ Subbaravamma, W/o.China Anjaiah, 34 years, Hindu, Housewifr, Thathapudi village, Guntur District, Chilakaluripeta.

8. Gungi Gangamma, W/o.Anjaiah, 35 years, Hindu, Housewife, Makkenavaripalem village, Santhamagulur Mandal.

9. Thanneeru Anil, S/o.late Ramanjaneyulu, 24 years 10.Thanneeru Umamaheswara Rao, S/o.late Ramanjaneyulu, 21 years 11.Thanneeru Mallikarjuna Rao, S/o.late Ramanjaneyulu, 20 years 12.Thanneeru Achamma, W/o.late Ramanjaneyulu, 50 years defendants 9 to 12 are Hindus, R/o.Valaparla village, Martur Manda.

Defendants 3 to 8 are legal representatives of deceased 1 st defendant

amended as per orders in I.A.672/12 Dt.16.8.2013

Defendants 9 to 12 are L.Rs of deceased 6 th defendant, amended as per

orders in I.A.693/17 Dt.1.9.2017. … Defendants

These three suits are coming on 9.7.2018 before me for final hearing in the presence of Sri P.Ramesh, Advocate for plaintiff in O.S.No.343/1999 and defendants in

O.S.No.358/1999 and O.S.No.72/2002 and of Sri A.Nagarjuna Rao-Advocate for the

Dt.31.07.2018 3 Common judgment plaintiff in O.S.No.358/1999 and O.S.No.72/2002 and defendants in O.S.No.343/1999 ; upon perusing the oral and documentary evidence on record and upon hearing the arguments on both sides, and having stood over for consideration till this day, this Court delivered the following :- // C O M M O N J U D G E M E N T //

Original Suit No.343 of 1999

This suit is filed for permanent injunction restraining the defendants and their men from in any manner interfering with peaceful possession and enjoyment of the plaintiff in respect of plot A by the defendants taking water of Murugu canal X, X1, X2 to their plots D1 and D2 through plot A by destroying the ridges of X, X1 or Eastern ridges of plot A and for costs.

02. The brief averments of the neat copy of amended Plaint filed on 8.9.2017 are as follows:

The plaintiffs 1 and 2 are the brothers. The first defendant is the father of defendants 2 and 3. The first defendant is the owner of plot D1 and second defendant is the owner of plot D2 of the plaint plan. Plot A of the plaint plan was absolute property of Chekuru Krishnamurthy and his two sons Vamsi Krishna and Krishna chaitanya of Guntur. Plaintiffs 1 and 2 have purchased the said property under a

Registered sale deed Dt.12.7.1982 for Rs.7,000/- and possession was delivered. Since then, the plaintiffs 1 and 2 have been in possession and enjoyment of the Plaint schedule property and enjoying the same with absolute rights. Pattadar pass book was given by the government and they have been paying taxes to the government. A few years back plaintiffs 1 and 2 converted the land purchased by them into wet land and cultivating the same as wet land by taking Murugu water released by the

Ayacutdars. The bunds on all the four sides of plot A and X, X1, X2 belong to the plaintiffs 1 and 2. This year also they cultivated ‘plot A’ and made it ready for transplantation.

Dt.31.07.2018 4 Common judgment ii) It is further averred that X, X1, X2 Murugu canal as shown in the plaint plan is an old and ancient one which is about 2 ½ feet in width having grass grown ridges of 1 foot in width and 1 ½ feet in height on either side of it and the said canal is in plaintiffs land, it joins Vagu shown as V V1 at North-East corner of plot P. The defendants have no right, title or possession either in plot A or P or Murugu canal shown as X, X1, X2. The Plot S is in an extent of Ac.10.00 cents and the same was kept beedu and belonged to Mombanti Venkateswarlu and the same was purchased by

Janjanam Seshagiri Rao and he brought the same under cultivation. Plot S1 belong to

Sundara Rao, ‘Plot M’ belong to Krupa Rao, Plot D2 belong to 2nd defendant and plot

D1 belong to joint family of D1 and his sons. Plot P1 is poramboku land and plot P belong to plaintiff. Owner of plots S, S1, M, D2 and D1 never received any Murugu water to their lands from X, X1, X2 canal. There is a Murugu canal shown as ‘C C1’ to the North of plots ‘S and S1’ and the said Murugu canal joins the Vagu marked as V

V1 running from South to North on the Eastern side of plots S1, M, D2, D1, P1 and P.

The defendants are powerful persons and the plaintiffs belong to different village i.e.,

Valaparla, on account of village fractions and enmity, the defendants are giving out that they will destroy the ridges of Murugu canal X, X1, X2 to the East of X, X1 and take

Murugu water from it through the plaintiffs plot A to their fields D1 and D2. If they are allowed to do so, the plaintiffs will be put to irreparable loss and injury, hence the suit.

03. First defendant filed his written statement and the same was adopted by defendants 2 and 3. The first defendant refuting entire allegations of the plaintiff in the plaint and further contended that the plan filed along with plaint is not correct and there is a continuing canal to draw water to the lands of the defendants across ‘A’ of the plaint plan. There is no other source to draw water to the lands of defendants. For the last 20 years these defendants are utilizing the water source through the canal which is in existence across ‘A’ marked land shown in the plaint plan. Even prior to filing the suit, when the plaintiffs intending to cause obstruction to their field channel, the matter was referred to Mandal Revenue Officer, Martur, the then Mandal Revenue Officer also

Dt.31.07.2018 5 Common judgment passed orders to continue the canal as usual in RC.No.B6/7/97 Dt.4.9.1998. In pursuance of the orders, the field channel was restored by the respective parties. The plaintiffs in order to close the canal across their lands approached the court by suppressing the real facts. Right from the beginning, across ‘A’ marked portion 2 inches width of the field canal is in existence to draw water to the lands of defendants connecting drain canal partly as shown in the plaint plan.

ii) The defendants filed suit in OS.No.358/99 on the file of this court with true and correct plan and got appointed Advocate Commissioner to show the existing physical features. These defendants have perfected X-series field canal across ‘A’ marked plan by way of customary easement. The plaintiffs are not entitle to interfere with the water rights of defendants and on the date of filing the suit the paddy seed bed was in existence in the land of these defendants. The said field canal diverts in between the plots A and D1 towards North to some extents and it further diverts to East through point P1 of the plaint plan and joins into vagu situated on the eastern side.

Through the said canal only the defendants have to draw water to their lands by arranging sluice from the canal situated in between plots A and B1. The Advocate

Commissioner also observed the existence of old ridge canal in between plot A and D1.

In the midst of plot A there is a continuation canal in order to draw water by the defendants. At the time of filing suit, in order to give colour of reality, the plaintiffs have not shown the entire canal either in between plot ‘A’ or in between ‘A’ and D1 shown in the plaint plan, filed false suit and got appointed Advocate Commissioner. The plaintiffs have not shown the existence of canal to the commissioner and the commissioner mentioned width of 15 feet and 2 feet depth of grass grown old canal in between plot ‘A’ and D1. As the lands are wet lands already season was started by the date of filing suit, plaintiffs and defendants made necessary repairs to their lands. In that connection on the date of inspection of commissioner the field canal some extent was removed by the plaintiffs in the middle of plot ‘A’ and after his inspection same was replaced. Even prior to filing the suit by the plaintiffs, the defendants already

Dt.31.07.2018 6 Common judgment arranged paddy seed bed in their land through the water from the canal which was located in the middle of plot ‘A’ and in between plot ‘A’ and D1.

iii) The plot M1 and S1 shown in the plaint plan are lower in level than D1 and D2. The plot D2 shown in the plaint plan is a Dibba which is at height of more than three feet. These defendants have no knowledge about the suit filed by him by the date of filing suit against the plaintiffs. So, the question of suppression of fact does not arise. There is no cause of action in filing the suit and prayed to dismiss the suit.

04. Basing on the pleadings of both parties the following issues were settled for trial :

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

2. To what relief ?

Original Suit No.358 of 1999

05.This suit is filed for grant of mandatory Injunction directing the defendants to restore X-series field canal as shown in the plaint plan and for grant of permanant injunction restraining the defendants and their men from in any manner interfering with the plaintiff’s peaceful possession and enjoyment of water rights through X-series field channel as shown in the plaint plan.

06. The brief averments of the neat copy of amended Plaint filed on 8.9.2017 are as follows:

Plaintiff is the absolute owner of the Plaint schedule property. He converted the land into wet land about 30 years back and raising paddy crops every year and paying necessary water cess to the revenue authorities. The revenue authorities also issued ryotwari pass book and title deed in his favour. ‘ABCD’ shown in the plaint plan belong to the plaintiff which was shown as ‘P’ in the plaint plan, B, B1 of the plaint plan belongs to the land of defendants. Plaintiff and defendants are drawing water to their respective land through X, X1, X2, X3, X4 of the plaint plan for

Dt.31.07.2018 7 Common judgment the last 30 years. The plaintiff has no other source to draw water to his land, except X- series canal of the plaint plan.

ii) While matter stood thus, defendants closed X-series field channal at X1 point in the month of September, 1997 and the plaintiff reported the matter to Mandal

Revenue Officer, Martur and Mandal Revenue Officer, Martur on his personal inspection settle the dispute and directed the plaintiff and defendants to restore X-series field channel at a width of 23 links. The then Mandal Revenue Officer, Martur passed orders wide RC. B6/7/97, Dt.4.9.1998. As per the orders of the then Mandal Revenue Officer

X-series field channel was restored. Since then, the plaintiff has been drawing water without any interruption caused by the defendants till last year. The plaintiff sowed the seed bed and it is ready for transplantation and the plaintiff is also making necessary agricultural operations for transplantation of paddy crop. The defendants keeping previous misunderstandings in mind for the last two days have been openly giving out in the village that they will not allow the plaintiff to drew water through X-series field channel.

iii) Subsequent to dismissal of CMA.1/2001, the plaintiff filed application for implementation of Injunction orders in order to repair X-series field channel in

I.A.1370/01 and the same was allowed and when the police about to implement the

Injunction orders, they found X-series field channel was damaged by the defendants.

Except X-series field channel there is no other source to draw water to the plaintiff’s land. On account of misdeeds of the defendants, the plaintiff is unable to raise any crop in the Plaint schedule property and sustained huge loss, hence the suit.

07.First defendant filed his written statement which was adopted by second defendant refuting entire allegations of the plaint and further contended that the plan filed along with plaint by the plaintiff is incorrect and misleading. The plots ‘B B1’ of the plaint plan belonged to the defendant and purchased the same from one Chekuru

Krishna Murthy and his two sons under a registered sale deed Dt.12.7.1982. Since

Dt.31.07.2018 8 Common judgment then, defendants have been in possession and enjoyment of the same. Defendants purchased the said land as a dry land which is not under wet ayacut. A few years back defendant converted the same into wet land and having been in possession and enjoyment of the same by taking murugu water released by the Ayacutdars. The canal through which murugu water is being drawn by the defendants to their lands enter into the lands of defendants at X point, from them it turns towards North and goes along with Western ridge of the defendants land to some extent and again turns towards East along with Northern ridge of the defendants land, ultimately joins into Vaagu at North-

East corner of defendants land and the water flow into the said vaagu is from South to

North. The said murugu canal is an old and ancient one of 2 ½ feet in width having grass grown ridges of one foot in width and 1 ½ feet in height on either side.

ii)It is further averred that the said canal is in defendants land, there is no canal at all that goes across the defendants land and enters into the land of plaintiff through the land of defendants. The plaintiff has no right at all to draw water from the lands of defendants to his land since there is no canal at all. Moreover, plot P is higher in level than the plot B B1 by nearly 1 ½ feet to some extent bund of same height put up by the plaintiff. The owners of the lands situated on the South of the defendants land and plaintiff never received any water from the canal. Since the plaintiff and his sons taking advantage of the fact that defendants belonged to different villages and they have no support, giving out that they will destroy the ridge of the murugu canal in the land of defendants and take murugu water to their lands from the land of defendants, thereby defendants filed suit in OS.No.343/1999 on the file of this court against them for the grant of permanent injunction. Along with suit they also filed a petition in

I.A.No.1249/1999 for grant of temporary injunction. The defendants also got appointed an Advocate Commissioner to note down the non existence of any canal i.e., X series field channel across B B1 plots to draw water through it from the lands of defendants to the land of plaintiff. The Advocate Commissioner also visited the suit location and noted the non-existence of any such canal in the land of defendants, suppressing the filing of

Dt.31.07.2018 9 Common judgment

OS.No.343/1999, the plaintiffs filed the present suit with false allegations and they

approached the court with unclean hands,hence the suit is hit by section 10 of CPC.

iii)It is further averred that there is a land belonging to one Seshagiri Rao to the South of ‘B1’ plot. To the South of said Seshagiri Rao’s land, there is a murugu canal runs from West to East and ultimately joins into Vagu situated on East of plot P and it is the source of water to the plaintiffs land. There is an authorized canal through the land of said Seshagiri Rao and said canal water situated to the South of plot P and also some portion of plot P. There is a XX1X2X3X4 field channel and same was closed by the defendants in the month of September, 1997 and the same was restored as per the orders of Mandal Revenue Officer, Martur is false. This defendant or his brother never agreed before Mandal Revenue Officer, Martur to allow the plaintiff to draw water from their lands to his land. If there is any such agreement before the Mandal Revenue

Officer, same must be a fabricated and manipulated one. Moreover from the order of

Mandal Revenue Officer, it was known that both the parties are directed to dig a canal of 21 links width at their own cost to take water to the land of plaintiff from the land of defendants. It is made clear from the order of Mandal Revenue Officer that there is only a direction to dig the canal and it does not disclose as to the canal was actually dug. By the date of visit of the Advocate Commissioner in OS.No.343/1999 there exists no canal from the land of defendants to the land of plaintiff, hence the question of plaintiff drawing water to his land from the canal through the land of defendants and defendants are threatening to close the said canal does not arise. The existence of X series field channel across the land of defendants is neither supported by revenue records nor records of NSP department. The plaintiff has no right and title to draw water to his land from the land of defendants and prayed to dismiss the suit with costs.

08. Defendants 1 and 2 filed their neat copy of additional written statement contended interalia that there is no field channel across their land to the field of plaintiff and under the guise of Injunction orders, the plaintiff has been trying to dig a new canal

Dt.31.07.2018 10 Common judgment across their field and if the plaintiff succeeds in digging a canal in the private land of these defendants, they would suffer irreparably. The plaintiff tried to dig a canal across the land of these defendants and obtained interim orders suppressing the real facts.

When he filed I.A.No.1370/01 the first defendant filed his counter and this court passed orders on 7.12.2001 in the said I.A. issued official memorandum to the Martur police directing police to give police aid to the plaintiff for repairing only the existing X1 to X4 field channel and plaintiff was not dig new channel and accordingly police visited the suit lands on 24.12.2001 and found that entire lands of defendants is transplanted with paddy and there is no channel across their lands.

ii) As the plaintiff failed to dig a new channel under the guise of interim

Injunction as well as police aid he amended the plaint with false allegations. There is no X-series field channel in the fields of these defendants and the plaintiff has no source of canal through the lands of these defendants. When there is no X-series field canal in their lands, the question of damaging the same does not arise, the land through which plaintiff is claiming that there is a field channel is the private land of defendants and plaintiff has no locus standi to claim that there exist a field channel and it is a source of drawing water to his land. The plaintiff never drew water through the so-called imaginary canal. For the last several years there is a drought and even these defendants are not getting water to their land. These defendants got dug a bore well in their field towards South-West corner, have been drawing water to their land with the help of oil engine have been raising crops. These defendants filed a suit in

OS.No.343/1999 on the file of this court for permanant injunction. Along with the said

suit, they filed I.A.1250/99 for appointment of Advocate Commissioner to visit the suit locality and the commissioner visited the suit locality and filed a report wherein it is made clear that there is no canal across the field of these defendants to the land of plaintiff.

After the commissioner visited the suit land the plaintiff mischievously filed the present suit suppressing the filing of suit by the defendants got appointed another commissioner. The commissioner was appointed but the plaintiff did not even serve notice to the defendants and the report is invalid and cannot be taken into consideration.

Dt.31.07.2018 11 Common judgment

The suit for mandatory Injunction is not maintainable without seeking declaration of the right of the plaintiff with respect to his suit claim and prayed to dismiss the suit.

iii) During the pendency of suit first defendant died and defendants 3 to 8 were added as legal representatives of deceased/ first defendant as per orders in

I.A.661/12, Dt.16.8.2013. Similarly 6th defendant was died and defendants 9 to 12 were added as legal representatives of deceased / sixth defendant as per orders in

I.A.693/17, Dt.1.9.2017.

09. Basing on the pleadings of both parties the following issues were settled for trial :

1. Whether the plaintiff was enjoying water rights through X series field channel as on the date of the suit ?

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

3. To what relief ?

Additional Issue framed on 22.4.2014:

Whether the suit for mandatory injunction is maintainable without the relief

of declaration?

Original Suit No.72 of 2002

10.This suit is filed for claiming damages of Rs.40,000/- with interest at the rate of 12% p.a. and for costs.

11. The brief averments of the neat copy of Plaint filed on 8.9.2017 are as follows:

Plaintiff is the absolute owner of the Plaint schedule property, having converted the land into wet land about 30 years back and has been raising paddy crops every year and paying necessary water cess to the revenue authorities. The revenue authorities also issued ryotwari pass book and title deed in his favour. Except the plaintiff nobody has got right or interest over the Plaint schedule property.

Dt.31.07.2018 12 Common judgment ii) The defendants have got land on the Western side of the plaintiff’s land.

The plaintiff has to get water to his land in between the land of defendants through a field channel. Except the said source, the plaintiff has no other source to get water to his lands. When the defendants caused obstruction to the field channel of plaintiff, he referred the dispute to the then Mandal Revenue Officer, Martur and the same was settled in RC.No.B6/7/97, Dt.4.9.1998. Subsequently the plaintiff used to get water through the field channel located in between the lands of defendants. The defendants also filed false suit alleging that plaintiff tried to damage their ridges and for grant of permanent injunction in OS.No.343/1999 suppressing the real facts and also filed an application in I.A.No.1249/99. Subsequently the plaintiff got filed suit in OS.No.358/1999 on the file of this court against the defendants for grant of permanent injunction from interfering with peaceful possession and enjoyment of X-series field channel. Along with said suit, he also filed application for grant of Temporary injunction in

I.A.No.1308/1999. He also got appointed an Advocate Commissioner and Advocate

Commissioner in his report clearly mentioned that X-Series field channel is in the defendants land to draw water to plaintiff’s land and it is the only source of water to the plaintiff. On merits the injunction petition filed by the plaintiff is allowed in

I.A.No.1208/1999 and the application filed by the defendants in I.A.No.1249/1999 was dismissed. Aggrieved by the same, the defendants preferred CMA.No.1/2001 and

CMA.No.2/2001 and the said appeals were dismissed on merits.

iii)Even after passing the injunction order against the defendants they are not allowed to draw water to the plaintiffs land through X-series field channel. The defendants also damaged some portion of field channel high handedly inspite of injunction order pending against them. All the surrounding land owners including the defendants raised the crops and got good yield. In case of wet lands the investment for ploughing, fertilizers, pesticides etc., is more than Rs.5,000/- per acre and the yield per acre will be more than 35 bags of paddy, each bag worth is more than Rs.400/- and gross income per acre will be Rs.14,000/- excluding expenses and the net income per

Dt.31.07.2018 13 Common judgment acre is Rs.8,000/-, hence the plaintiff sustained total loss of Rs.40,000/- on account of mischief committed by defendants. Plaintiff filed an application in I.A.No.1370/2001 for granting police aid in implementing injunction order and to make necessary repairs to X-

Series field channel and the same was allowed by this court. On the directions of this court the Sub-Inspector of Police, Martur went to plaint schedule property for implementation of injunction orders but they were unable to implement the order since field channel was dismantled and defendants also diverted the field channel. The

SHO, Martur submitted a memo to this court expressing inability to implement the orders of this court. It is further averred that the plaintiff also filed an application for appointment of Advocate Commissioner to observe the recent transplantation made by defendants through X-series field channel and to note down the plaintiffs land kept idle on account of plough of X-series field channel which was dismantled. Since the plaintiff sustained loss of Rs.40,000/- on account of mischief committed by the defendants and plaintiff was unable to raise paddy crop during the agricultural year 2001-2002. The plaintiff also issued a legal notice on 25.3.2002 to the defendants by calling upon them to pay damages of Rs.40,000/- and defendant got issued a reply notice Dt.9.4.2002 with false allegations.

12.Subsequent to the suit, first defendant died intestate on 18.1.2012 by leaving defendants 3 to 8 as his legal heirs since they succeeded the estate of deceased first defendant thereby they were impleaded as parties as per orders in

I.A.No.672/2012 Dt.16.8.2013. 6th defendant also died on 19.8.2016 by leaving defendants 9 to 12 being sons and wife and they were impleaded as parties as per orders in I.A.No.694/2017 Dt.1.9.2017, hence the plaintiff constrained to file the suit claiming damages of Rs.40,000/- with subsequent interest at 12% p.a.

13.First defendant filed his written statement which was adopted by D2 by filing a memo refuting entire allegations of the plaintiff in the plaint and further contended that defendants purchased an extent of Ac.2.75 cents of land from Chekuri Krishna

Murthy and his two sons under a registered sale deed Dt.12.7.1982 and possession was

Dt.31.07.2018 14 Common judgment delivered to them. On the date of purchase it was a dry land which is situated to the

West of plaint schedule. A few years back, defendants have converted the dry land into wet land, have been cultivating by taking Murugu water released by the ayacutdars.

The canal through which Murugu water is being drawn by the defendants to their lands enter into the land of defendants at the middle of the Western ridge of the defendants land, from there it turns towards North and run along with Western bridge of the defendants land to some distance, again it turns towards East and run along with

Norther ridge of the defendants lands, ultimately on the North-East corner of the defendants land it joints into vagu situated on the East of the defendants land and plaintiffs land as well. Thus, the said murugu canal is in the land of defendants which is an old and ancient one of 2 ½ feet in width having grass grown bunds of one foot in width and 1 ½ feet in height on either side. It is further averred that there is no canal or any kind of field channel that runs across the land of defendants to plaintiffs land, there exists a field channel at all in the land of defendants to draw water from it to the land of plaintiff. The plaintiff has no right at all to draw water to his land from the land of defendants as there is no field channel. Moreover, the plaint schedule property is higher in level than the land of defendants by nearly 1 ½ feet. Since there is no field channel in the land of defendants to draw water through which to the lands of plaintiff, the question of defendants not allowing the plaintiff to draw water to his land and their damaging the canal to some extent high handedly does not arise ii)It is further averred that the defendants are residents of Valaparla village whereas their lands and plaint schedule property are situated at Darsi village, taking advantage of the same, when the plaintiff and his son were giving out that they will destroy the bunds of murugu canal situated in the land of defendants and take water from it to their lands by digging the channel across their land, the defendants filed suit in

OS.No.343/1999 on the file of this court for permanent injunction. Along with the suit,

the defendants also got appointed an Advocate Commissioner to inspect the suit locality.

When the Advocate Commissioner offered notice to plaintiffs, they refused to receive the same.

Dt.31.07.2018 15 Common judgment iii)It is further averred that the Advocate Commissioner visited the suit locality and filed his report, thereafter plaintiff filed another suit in OS.No.358/1999 on the file of this court against the defendants by suppressing the facts and pendency of earlier suit and took another commissioner, got filed another report without any notice or information to the defendants. It is further averred that the plaintiff filed a petition in

I.A.No.1378/2001 for granting police aid with an intention to dig a new channel across the lands of defendants under the guise of police aid. The Sub-Inspector of Police by name K.Chenchu Ramarao visited the lands of plaintiff and defendants on 24.12.2001 at about 10.30 a.m. along with his staff and both parties, found that there is no channel across fields of defendants and entire fields of defendants was transplanted with paddy.

As there is no channel much less X-series channel across the land of defendants, the police went away and police also filed a memo Dt.3.1.2002 along with photographs and their negatives into the court bringing the said facts.

iv) The Sub-Inspector of Police visited the lands on 24.12.2001 at 10.30 a.m., even prior to his date of visit he concocted a report by obtaining statements from the henchmen of the plaintiff and visited the lands subsequently. The plaintiff again filed a petition in I.A.No.172/2002 for appointment of Advocate Commissioner, but the said petition was dismissed. There is a land belonging to one Jangam Seshagiri Rao to the

South of defendants land. There is a field channel in the lands of Seshagiri Rao and through the said field channel, the plaintiff is drawing water to his lands in addition to the water from the canal situated on the South of lands of said Seshagiri Rao. He is also drawing water from the vagu situated to the East of his land and flow of water in the said vagu is from South to North. It is further averred that the plaintiff has no right to draw water from the lands of defendants. The alleged proceedings before the Mandal

Revenue Officer, Martur are false and concocted. The lands of defendants are patta lands. There is no channel through their lands. The plaintiff has no right to draw water from the lands of defendants. The plaintiff came to the court with unclean hands unless and until he establishes a right to draw water from the lands of defendants he has no right to claim damages from the defendants. There is no cause of action in filing the

Dt.31.07.2018 16 Common judgment suit. The yield in their land is not more than 20 bags per acre per annum if all the conditions are favourable. The investment will be Rs.6,000/- per acre per annum and net income will be around Rs.1500/- per acre per annum. The rate per bag of paddy is

Rs.300/-. The net income of plaintiff will not exceed Rs.7,500/- per annum and prayed to dismiss the suit with costs.

14. Basing on the pleadings of both parties the following issues were settled for trial :

1.Whether the plaintiff is entitled for damages as prayed for ?

2.To what relief ?

15.As per orders in I.A.No.467/2007 dated 4.7.2007, the suit in

O.S.No.358/1999, O.S.No.343/1999 and O.S.No.72/2002 were clubbed together for

common trial and common judgment and evidence was recorded in O.S.No.358/1999.

16.On behalf of the plaintiff, Pws.1 to 3, 5 to 8 were examined and

Ex.A1 to Ex.A5, Ex.X1 to Ex.X4, Ex.C1 and Ex.C2 were marked. The chief examination affidavit of PW4 was eschewed on 29.10.2009. On behalf of the defendants, Dws.1, 2, 4 to 6 were examined and got marked Ex.B1 to Ex.B25, Ex.C3 and Ex.C4. The chief examination affidavit of DW3 was eschewed on 1.2.2010.

16 (i)The learned counsel for plaintiff and learned counsel for defendants filed their written arguments on 20.6.2014 and 18.11.2014 respectively before my predessor.

16 (ii) For the sake of convenience, the parties will be arrayed as plaintiff and defendants as in O.S.No.358/1999.

17.Issue Nos.1 & 2 and Addl. Issue in O.S.No.358/1999:

Issue No.1 in O.S.No.343/1999

Issue No.1 in O.S.No.72/2002

In order to avoid repetition for the sake of convenience, I am discussing all the above issues together hereunder.

Dt.31.07.2018 17 Common judgment

The undisputed facts of the case are that the plaintiff is the absolute owner of the plaint schedule property shown as “ABCD” of the plaint plan having purchased the same about 15 years back from Bollineni Ramaiah of Ongole. It is also not in dispute that the defendants 1 and 2 had purchased “B” “B1” of the plaint plan from one Chekuru Krishna Murthy and his sons under a Registered Sale deed dated 12.7.1982.

18.It is the case of the plaintiff that plaintiff and the defendants are drawing water to their lands through canal shown as XX1X2X3X4, that in the month of

September, 1997, the defendants closed the X series filed channel at X1 point and same was settled by the Mandal Revenue Officer, Martur by directing both parties to restore the X series at a width of 23 links under order in Rc.B6/7/1997 dated 4.9.1998 and “ X” series filed channel was restored. It is further case of the plaintiff that there is no source to draw water to his land except X series channel.

19.Per contra, it is the case of the defendants that canal through which murugu water is being drawn by the defendants to their lands enter into the land of the defendants at X point, then it turns towards north , goes along with western ridge of defendants land to some extent, again turns towards east all along northern ridge of defendants, at north-eastern corner of the defendants lands joins into vagu situated on the east of the defendants and the water flow in the said vagu is from south to north, the said murugu canal is an old and ancient which is 2 ½ feet in width, having grass grown ridges. It is their further case that there is no canal that goes across the defendants lands , enters into the land of plaintiff from the lands of defendants.

20.Plaintiff in order to prove his case, examined himself as PW1 by filing his chief examination affidavit which is the replica of plaint,hence they are not reproduced hereunder. PW1 has categorically admitted that property shown in the plaint plan as “ABCD” was purchased by him from Bollineni Ramaiah, Ongole and the plots shown as “BB1” in the plaint plan purchased by defendants 1 and 2 even two years prior to his purchase. The lie of plot “ABCD” and “BB1” are from west to east.

Dt.31.07.2018 18 Common judgment

PW1 has categorically admitted that in between the land of defendants and his land,there is a ridge of 2 feet and he used to raise paddy in his land ever since the advent of NSP canal. There are authorized channels to draw NSP water to his land. He has no document to show that NSP water comes to his land through X series channel shown in the plaint plan. About one year prior to filing the suit in O.S.No.343/1999, the defendants obstructed the passage of water to his land through X series canal and he did not issue any legal notice to the defendants. He had raised crop in his land during that year. PW1 has categorically admitted that defendants 1 and 2 have purchased single plot from Cherukuri Venkata Subbaiah, he again says that there is a canal in the middle of their plot. PW1 categorically admitted that in the sale deed of the defendants it is recited as single plot was sold and existence of water canal in the middle was not recited therein.

21.PW1 categorically admitted that the land to the south of his land are at a height of 2 feet from his land and the lie of land is from south to north. There is a land of Marella Hanumantha Rao to the south of his land, to the further south of

Hanumantha Rao, there is land of Murikipudi Krupa Rao and two others. To the south of the land of Seshagiri Rao, there is a land of Adavapalli Anjaneyulu, there is a canal in between the lands of Seshagiri Rao and Anjaneyulu and it flows from west to east. The said Marella Hanumantha Rao , Murikipudi Krupa Rao and two others are drawing water through the cement sluice. It was suggested to PW1 that he is cultivating the land with the water of the said canal only and he never drew water through “X” series canal.

22.PW1 categorically admitted that his son Marella Hanumantha Rao has got land to the south of his land and his son’s land is lower in level than his land and difference in the land level is half feet. There is a sluice in the west of his land in the middle of the land except the said sluices, he has no other sluice. To the north of his land there is a canal and it flows into vagu. PW1 categorically admitted that, there is a canal to the north of land of defendants adjoining their ridges and it flows upto Vagu.

PW1 testified that seven or eight months prior to filing the suit, Mandal Revenue Officer

Dt.31.07.2018 19 Common judgment visited his land, recorded his statement. It was suggested to PW1 that arrangements were made by the Mandal Revenue Officer to let him draw water through the canal along with southern side of the defendants land but not through the middle of their lands.

It was suggested to PW1 that he dug a canal in the middle of the lands of defendants illegally and had shown the same to Commissioner. PW1 has categorically admitted that even on the date of visit of Advocate Commissioner, there was a paddy crop on either side of the canal and he had raised paddy seed bed in his land on the date of commissioner’s visit.

23.During cross-examination, PW1 categorically testified that since 1999 he did not raise any crops in his land and his land is kept fallow since then and he can produce documents to show that his land is kept fallow since 1999. There is a government canal through the drainage canal claimed by him. PW1 has categorically admitted that his son Hanumanth Rao is raising crops since 1999 and prior to it. It was suggested to PW1 that X series canal is not in existence and he never drew water through the same.

24.PW2/Uppalla Srinivasa Rao, who has got Ac.1.00 of wet land on the west of plaint schedule property testified that during the pendency of the suit defendants damaged X series filed channel, from the date of suit till today, plaintiff was unable to raise even dry crops since the land is unfit for raising the same. He further testified that there is no possibility to draw water to the plaintiff’s land even from

Southern side plot since it is lower in level and plaintiff has got only X series field channel to draw water to his land to raise wet crops. During cross-examination, PW2 categorically testified that he does not know whether the existence of X series canal was recited in the sale deed of plaintiff. PW2 has categorically admitted that there is a ridge of two feet height in between the land of plaintiff and land of defendants.

25.During cross-examination, PW2 has categorically admitted that land of Marella Hanumantha Rao who is son of plaintiff is abutting suit property on the

Dt.31.07.2018 20 Common judgment southern side, to the southern side of Hanumantha Rao, there is a land of Murikipudi

Krupa Rao and others. There is a land of Janjam Seshagiri Rao to the south of the land of defendants. There is a canal in between the land of Seshagiri Rao and Aravapalli

Anjaneyulu and they are receiving water from NSP canal and the said canal is being used by Krupa Rao and Hanumantha Rao for their respective lands and the said canal ends at the land of Hanumantha Rao. There is a cement sluice in the said canal into the land of Krupa Rao. The lie of lands of Krupa Rao and Hanumantha Rao are same.

There is a vagu to the North of the land of the plaintiff which is lower in level than the land of plaintiff. There is a canal to the north of the lands of the defendants which flows into the vagu through the land of plaintiff on its north. There is no document to show that

X series canal exists in the middle of the land of defendants. It was suggested to PW2 that the plaintiff never used the X series canal as it was not in existence.

26.PW3/Murikipudi Krupa Rao, who has got Ac.1.00 of wet land on the southern side of defendants land testified on similar lines of PW2. During cross- examination, PW3 categorically admitted that there is a ridge of 2 feet in height in between the land of plaintiff and land of defendants and he has got land to the south of land of defendants and he is not drawing water through X Series canal since he has got different canal. There is a land of Marella Hanumantha Rao who is no other than son of the plaintiff, to the south of land of plaintiff. PW3 has categorically admitted that he is using water from N.S.P canal to his land and so also Hanumantha Rao and the said canal ends at the land of Hanumantha Rao. There is a cement sluice in the said canal into his land and lie of his land and land of Hanumantha Rao are same. Lands of plaintiff and his land are joint. There is a vagu to the north of the land of plaintiff, the level of land of plaintiff is higher than vagu There is a canal to the north of the defendants and it flows into vagu through the land of plaintiff on the north. He has no document to show that existence of X series canal in the middle of the land of the defendants. It was suggested to PW3 that X series canal never existed and plaintiff had never drawn water through X series canal to his lands.

Dt.31.07.2018 21 Common judgment

27. PW5/Karedla Anjaiah, who has got Ac.2.00 of wet land on the west of defendants land intervening Ac.10.00 of land deposed on similar lines of Pws.2 and 3.

During cross-examination, PW5 has categorically admitted that there is a bund of two feet height in between the land of plaintiff and land of defendants. There is a land of

Marella Hanumantha Rao who is no other than son of the plaintiff, to the south of land of plaintiff. PW5 has categorically admitted to the south of the lands of defendants, there is land of Janjam Seshagiri Rao, to his further south,there is a land of Aravapalli

Anjaneyulu, in between the lands of Seshagiri Rao and Anjaneyulu, there is NSP canal, the NSP canal flows into west of the land of Hanumantha Rao and joins the Vagu towards East. The lie of the land of plaintiff and his son/Hanumantha Rao are same.

There is a vagu to the north of the land of plaintiff, the level of land of plaintiff is higher than vagu at a height of 5 or 6 feet. All the lands to the south of the X series canal are higher in level. He has no document to show that existence of X series canal in the middle of the land of the defendants. There is a water in NSP canal every year and even now land owners in the locality have raised paddy. It was suggested to PW5 that

X series canal never existed and plaintiff had never drawn water through X series canal to his lands.

28.PW6/Rolla Rama Rao, who has got Ac.0.70 cents of land on the north east corner of the plaintiff’s land testified on similar lines of Pws.2, 3 and 5 in his chief examination affidavit. PW6 has categorically admitted that there is a bund of 2 feet in between the land of plaintiff and the land of defendants. He has got land to the north-east corner of the plaintiff’s land. He is drawing water from X series canal which is beyond his evidence affidavit. Since the date of purchase, the plaintiff has been cultivating the land by raising paddy. There is a land of Marella Hanumantha Rao who is no other than son of the plaintiff, to the south of land of plaintiff. PW6 has categorically admitted that to the south of the lands of defendants, there is land of Janjam Seshagiri

Rao, to his further south,there is a land of Aravapalli Anjaneyulu, in between the lands of

Seshagiri Rao and Anjaneyulu, there is NSP canal, the NSP canal flows into west of the land of Hanumantha Rao and joins the Vagu towards East. The lie of the land of

Dt.31.07.2018 22 Common judgment plaintiff and his son/Hanumantha Rao are same. To the north of land of plaintiff, there is a canal which flows into Vagu towards east. The land of plaintiff is higher in level than vagu. He has no document to show that existence of X series canal in the middle of the land of the defendants. There is a water in NSP canal every year and even now land owners in the locality have raised paddy. It was suggested to PW5 that X series canal never existed and plaintiff had never drawn water through X series canal to his lands.

29.PW7/K.Subbaravamma, the Advocate Commissioner testified that she gave notices to counsel for the plaintiff. Since the defendants 1 and 2 were not available, she could not serve notices to them. She inspected the suit locality on 15.10.1999 and she was appointed to note down the existence of X series Canal and she filed report under Ex.C1 and plan under Ex.C2. During cross-examination, PW7 categorically testified that he visited the house of defendants at Valaparla , since they were not available she could not service notices to them but she did not mention the same in her report. PW7 has categorically admitted that XX1X2 canal was newly laid as there was red earth on the bunds on either side. There were no standing crops either in

P or in B1 and B2, on the dated of her visit. PW7 has categorically admitted that except

XX1X2, the remaining bund at remaining X series appeared to be old and covered with grass. In plot P at “N” marked space, there was paddy seed bed. The lie of the plots is from south to north, plots in south are higher in level than plots in north. It was suggested to PW7 that she did not issue notice to defendants intentionally,she noted the observations as suggested by plaintiff to suit his case and filed accommodate report and plan to help the plaintiff.

30.PW8/K.Krishna Murthy, the then Deputy Tahsildar, Marturu testified that he was authorized by Tahsildar, Martur to produce file in Rc .B.No.617/1997 dated 4.9.1998 which is marked as Ex.X1 and carbon copy of proceedings are marked under

Ex.X2 and plan prepared by Village Revenue Officer attested by Mandal Revenue

Officer marked under Ex.X3 and xerox attested copy of combined sketch for S.No.149 village No.113 under Ex.X4 and the said sketch shows flow of water from S.No.149 to

Dt.31.07.2018 23 Common judgment

S.No.151 and from there towards Vagu on north, where it joins with it. During cross- examination, PW8 categorically testified that canal flowing in S.No.149 and 151 is not dug by N.S.P authorities. PW8 has categorically testified that canal was dug in the patta land and its existence was mentioned in the revenue records. PW8 has categorically admitted that order in Ex.X2 that the defendants were directed to restore the canal which was closed. The said canal flows across the land of the defendant on west and turns towards north and then towards east and joins the vagu. It was suggested to PW8 that the canal never existed in the land of defendants and orders in Ex.X2 were obtained by managing the then Mandal Revenue Officer by plaintiff.

31.On the other hand, the first defendant herein is examined as DW1 by filing his chief examination affidavit reiterating the contentions raised in the written statement and got marked Ex.B1 to Ex.B25. During cross examination, DW1 admitted that there are no disputes between him and plaintiff with regard to extent, boundaries and ridges and enjoying their respective plots peacefully. His plot is on the Western side while plot of plaintiff is on the Eastern side. The Advocate Commissioner in

I.A.No.1250/1999 in OS.No.343/1999 shown all the physical features of the suit locality which were brought to her notice at the time of her inspection. There is no drainage canal in between plot A and plot B as shown in the commissioner’s plan. The land of himself, plaintiff and other lands in the locality are wet lands. It was suggested to DW1 that there is a drainage canal in between TT1 and proceeded towards North abutting

Western ridge of plot D1 and he removed the drainage canal in between TT1 and erected a bund at point B as shown in the commissioner’s plot just before visit of commissioner. He is cultivating his land with the aid of bore water but same was not averred in his written statement. There is a poramboku land to the North of land of plaintiff. It was suggested to DW1 that he did not dispute the plan of the plaintiff since it is correct. It was suggested to DW1 that plaintiff made a representation to the revenue authorities when he damaged the X series canal about a year prior to the filing the suit.

The revenue authorities inspected the land and restored the canal by directing himself

Dt.31.07.2018 24 Common judgment and plaintiff to meet the expenses equally. It was suggested to DW1 that he was served with copy of order passed in Ex.X2. He does not have any disputes with other neighbouring land owners except with plaintiff and he also does not have any disputes with PW2, PW3, PW5 and PW6. Except putting suggestions to DW1 nothing could be elicited by the plaintiff to prove that the plaintiff was enjoying the water rights through X series field channel to his plaint schedule shown as ABCD.

32. DW2/Mandapati Veeraiah, the Southern land owner of the defendants land testified that defendants and his brother purchased dry land which is not a wet land and they converted the said land into wet land by taking murugu water released by the upper ayacutdars and the said murugu water entered into the land of defendant at X point of the plaint plan, from there, it turns towards North, goes along with Western ridge of defendant’s land to some extent, it turns towards East all along

Northern ridge of defendants land and ultimately at North-East corner of defendants land, joins into vagu situated on the East of defendants land and flow of said vagu is from South to North. He further testified that the said murugu canal is an old and ancient one which is of 2 ½ feet width having grass grown ridges of 1 ½ feet height on either side and the said canal is in the lands of defendants. There is no X series canal across the land of defendants enters into the land of plaintiff from the defendants land.

The plot P shown in plaint plan is higher level than plots B and B1 by nearly 1 ½ feet to some extent and bund of same height was put up by the plaintiffs. The owners of land situated to the lands of defendants and plaintiff never received any water from the X series canal.

33.He further testified that the source of water for the plaintiffs land is there is a land belonging to one Seshagirirao to the South of B1 plot, to the south of said

Seshagirirao there is a NSP canal runs from West to East, joins into vagu situated to the East of plot P and it is the source of water to the plaintiffs land. DW2 further testified that the plaintiff has been regularly raising paddy crop in his land with the water available in NSP authorized canal which pass through the land of his son towards South of plot P

Dt.31.07.2018 25 Common judgment of plaint plan. During cross examination, DW2 testified that the X series canal flows in the plaint plan does not touch his land, the said canal is to the North of land of defendant

No.1 and it flows towards East upto vagu. The X series canal is in existence since 30 years. The X series canal is in the middle of plot of defendant No.1 flows in between land of plaintiff and land of defendant No.1 along North diverts towards East. The land of

Janjam Seshagirirao is to the South of the land of 1st defendant. It was suggested to

DW2 that except X series canal, the plaintiff does not possess any other source of water supply to his land and plaintiff has no chance of getting water through the canal to the

South of Seshagirirao and his land is higher in level than the land of Seshagirirao.

34.The evidence affidavit of DW3 was eschewed on 1.2.2010. DW4/Mukiri

Subbaiah having Ac.2.00 cents of land towards South of defendants land testified on similar lines of DW2. During cross examination, DW4 categorically testified that the drainage canal is in the land of defendant No.1 flows towards West and then flows into vagu. It was suggested to DW4 that the said channel flows along the Western ridge of the plaintiffs land, then joins into the vagu. It was suggested to DW4 that 1st defendant and plaintiff used to draw water from murugu canal and they have no other source of water supply to their respective lands.

35.DW5/ Karpurapu Anjaiah, having Ac.2.00 cents of land towards West of defendants land and Ac.0.80 cents of land towards South of defendants land testified on similar lines of DW2 and DW4. During cross examination, DW5 categorically testified that the murugu canal flows upto the land of 1st defendant, then it flows along the

Northern ridge of 1st defendant and through the land of Rudrapudi Rangaiah and then into vagu. The said drainage canal is in existence even by the time of his birth and there are no changes in the flow of drainage canal since then. The 1st defendant laid bore and by using bore water, is cultivating his land. The 1st defendant converted his land into wet about 30 or 35 years back after laying bore. It was suggested to DW5 that both plaintiff and defendant No.1 are cultivating their respective land with the water of drainage canal only and there is no other source of water to their respective lands.

Dt.31.07.2018 26 Common judgment

36.DW6/M.Neeraja, the Advocate Commissioner testified that in pursuance of the directions of this court, she visited suit locality to note down the plaintiffs drawing murugu water fromXX1X2 old murugu canal into plot A and plot P of the plaint plan and to give the width and depth of said canal and also to note down the existence of grass grown ridge on either side of the said canal and to note that plots D and D2 are not receiving murugu water into those plots from XX1 canal through plot A. On 12.10.1999 she visited the suit schedule property but the defendants refused to take notice issued by her and she filed her report and plan under Ex.C3 and Ex.C4. As per her observation there is no X series canal for plot A and plot B. During cross examination, she testified that there was paddy transplantation just few days prior to her inspection in plots TT1 and they were covered with water. She did not mentioned the lie of land in between M,

S1 plots and D1 and D2. She categorically admitted that there is no connecting canal between X and F and by the time of her inspection paddy seed bed was in existence in plot D. It was suggested to DW6 that she did not thoroughly observe the plaint schedule property.

37.Coming to the documentary evidence, Ex.A1 to A5 are the pattadar pass book, title deed and cist receipts, since there is no dispute with regard to ABCD property purchased by the plaintiff and the said documents are not germane for the facts in issue.

Ex.C1 is the Commissioner report in O.S.No.358/1999 and Ex.C2 is the Commissioner’s plan.

38. On the other hand, among the documents filed by the defendant under

Ex.B1 to Ex.B25, Ex.B1 is the registered sale deed Dt.12.7.1982 under which they purchased plot B and B1 of the plaint plan. Since there is no dispute with regard to property, it is not relevant for the fact in issue. Ex.B2 and Ex.B3 are the cist receipts,

Ex.B4 and Ex.B7 are the pattadar pass book and title deed. Ex.B9 is the legal notice,

Ex.B10 to Ex.B13 are the acknowledgments, Ex.B14 is the returned notice, Ex.B15 is the certified copy of counter in I.A.No.1317/2001 in OS.No.358/99, Ex.B16 is the certified copy of order in I.A.No.1317/2001 in OS.No.358/99, Ex.B17 is the certified copy of objections filed in I.A.No.1317/2001 in OS.No.358/99, Ex.B18 is the copy of

Dt.31.07.2018 27 Common judgment report given to Sub-Inspector of Police, Martur along with four postal receipts, Ex.B19 to

Ex.B22 are the postal acknowledgments from Sub-Inspector of Police, Martur, Inspector of police, Inkollu, Ex.B23 are the proceedings in CRP.No.5561/2001 Dt.13.9.2002 of

Hon'ble High Court of AP, Hyderabad, Ex.B24 and Ex.B25 are four photographs with

negatives.

39. The learned counsel for the plaintiff in his written arguments contended that from the evidence of PW1, the plaintiff established that about the existence of X series field channel long prior to the suit coupled with the evidence of PW7 and PW8 and by relying on by Ex.X1 to Ex.X4. PW2, PW3, PW5 and PW6 categorically testified that plaintiff used to get water to his land through X series field channel which is located in the middle of defendants land right from the beginning and there is no other source of water to the plaintiff.

40.The learned counsel for the plaintiff further contended that DW1 during cross examination, categorically testified that there is no drainage canal in between plot A and plot B1 as shown in the commissioners report and he did not seek redirection of the commissioner. DW1 further testified that no body including himself is utilizing the water passing through the drainage canal and he is cultivating his land with the aid of bore water which is a contra to his pleadings. The learned counsel for the plaintiff further contended that DW1 categorically testified that he does not have any disputes with revenue authorities but he denied about the representations made by the plaintiff to the revenue authorities and with regard to enquires conducted by them.

41.He further contended that DW2 during cross examination, testified that his lands situated at a distance of one furlong from the land of plaintiff and to his knowledge the X series field channel is in existence since 30 years and X series canal is in the middle of plot of first defendant flows in between the land of plaintiff and the land of first defendant all along North then diverts towards East.

42.The learned counsel for the plaintiff further contended in his written arguments from the evidence of both sides coupled with the evidence of commissioner

Dt.31.07.2018 28 Common judgment it is crystal clear that X series field channel is an oldest one which is in existence long prior to purchase of land by the plaintiff and defendants and X series field channel is the only source to draw water to the land of plaintiff.

43.The learned counsel for the plaintiff further contended in his written arguments that from the evidence of plaintiff and defendants, the existence of X series field channel is ancient one and right from the excavation of NSP canal, plaintiff and defendants are utilizing the water through X series field channel for more than descriptive period by provocating their water rights, hence under section 15 of

Easement Act, the enjoyment of dominant owner through the land of serveant owner must be peaceful, open and without any interruption for a period of 20 years and plaintiff established his right and he further contended that adverse possession and easement need not be specifically pleaded in the plaint but the plaintiff specifically pleaded in his written statement in OS.No.343/1999, so the perfection of title by adverse possession and right easement are species of title. The dominant owner has no right to restrict the use of serveant tenement except to the extent that his right of easement is perfected.

In bolster of his contentions, he relied upon the following decisions :

(1) 1997 (1) ALT Pg 23 in between M.Harichandra Prasad Vs., Chitturi

Krishnamurthy and others

(2) AIR 1978 Kerala 50 in between Tharur Panchayath and others Vs.,

Kunchayi and another (3) AIR 1973 MP 143 in between Baboo Narayanlal Vs., Manoharlal

(4) 1984 (2) ALT 204 in between Karri Ramulu and others Vs., Niylaru

Adinarayana and others

44.The learned counsel for the plaintiff further contended that the defendant filed the suit by suppressing the facts and rushed to this court by suppressing the documents to get favourable order but the same cannot be permitted under law. In support of his contentions he relied upon a decision reported in 2007 (6 ) ALT 472 DB in

between Tirumala Tirupati Devasthanams rep. by Executive Officer, Tirupathi,

Chittoor District Vs., T.Venkata Padmavathamma and others.

Dt.31.07.2018 29 Common judgment

45.The learned counsel for the plaintiff further contended in his written arguments that when both the parties put forward their evidence and the documents, the burden of proof is in significance, the onus of proof will be changed from time to time for which he relied upon a decision reported in AIR 1960 Supreme Court 100 in between

Narayan Bhagwantrao Gosavi Balaji Vs., Gopal Vinayak Gosavi and others.

46.The learned counsel for the plaintiff further contended that the plaintiff discharged his burden and established that there is X series field channel and he is drawing water to his land through the said canal and there is no other source to draw water, then defendants have to establish that there is no existence of canal across his land but the defendants failed to place cogent evidence contra to commissioner report and X series documents. In support of his contentions, he relied upon a decision reported in 2003 (4) ALT 383 in between T.Seshareddy and others Vs., Managing

Committee, Jame Masjid and others.

47.The learned counsel for the plaintiff in his written arguments further contended that though the relief of mandatory injunction is harshest in nature it can be granted on the ground of equity. Initially the plaintiff filed the suit for permanent injunction, subsequently defendant damaged existence of X series field channel by violating the order of this court. Even without seeking the specific relief of mandatory injunction he is entitled to claim the same under law. In support of his contentions, he relied on the following decisions :

1) In between Ronda Narapareddy and others Vs., Ronda Suryanarayana Reddy reported in 2004 (2) L.S. 521

2) in between Palliboyina Bulliyya and others Vs., Dadi Peda Veeraju (died) and others reported in 1993 (1) ALT 692

48.On the contrary, the learned counsel for the defendants in his written arguments contended that the defendants categorically denied the proceedings

Dt.31.07.2018 30 Common judgment prepared by Mandal Revenue Officer, Martur under Ex.X1 to Ex.X4 and they never attended before Mandal Revenue Officer, Martur and they never admitted that they restored field channel as per the proceedings of Mandal Revenue Officer Dt.4.9.1998.

The plaintiff got examined Deputy Tahsildar as PW8 and got marked Ex.X1 to Ex.X4 through him. But PW8 categorically testified that he has no personal knowledge about the proceedings under Ex.X1 to Ex.X4, in such case, it is the duty of the plaintiff to examine the persons attached to Ex.X1 to Ex.X4 to prove that the said documents are prepared in the presence of defendants 1 and 2 with their consent and knowledge but the plaintiff failed to examine those persons to prove the contents in Ex.X1 to Ex.X4.

Unless and until the plaintiff proved that Ex.X1 to Ex.X4 were prepared with the consent and knowledge defendants 1 and 2, the documents are not binding on them. In support of his contentions, he relied on a decision reported in 2002 (3) ALT 754 in between

Ramnivas Gupta and others Vs., Maliram.

49.The learned counsel for the defendants contended that plaintiff failed to prove Ex.X1 to Ex.X4, hence they cannot be taken into consideration by the court. The next contention raised by the learned counsel for the defendants that the plaintiff got marked Ex.X4, the combined sketch of survey No.149 and 151 but the plaintiff failed to file entire village map of Isukadarsi. As per the village map, the dotted lines shown in the survey No.s. 149 to 151 are specified as cart tract and not the field channel. Plaintiff taking advantage of dotted lines from survey numbers 149 to 151 stated that the X series murugu canal flows from 149 to 151 as per Ex.X4. In fact, there is no canal in existence from survey No.149 to 151. The plaintiff played fraud on the court in collusion with revenue authorities with a view to get a new right of taking water through the X series canal in the lands of defendants without any right or authority.

50. The next contention raised by the learned counsel for the defendants in his written arguments, the commissioner who is examined as DW6 observed that there is no existing murugu canal through the lands of defendants which enter into the land of plaintiff. The commissioner also observed another canal which is in existence to the

Dt.31.07.2018 31 Common judgment land of Seshagirirao and water entered into S1 plot from CC1 murugu canal through a small canal marked as SE and lastly the said water entered into VV1 marked vagu and a small canal as situated beside the said dibba through plot D marked as GH in the plan of commissioner. The observation made by the learned commissioner in

OS.No.343/1999 clearly mentioned that X series field channel is an old murugu canal

of 3 feet width and 3 feet depth with grass grown bunds.

51. The next contention raised by the learned counsel for the defendant that the commissioner in OS.No.358/1999 visited the suit land without giving notice to the defendants and inspected the suit land in their absence. The plaintiff intentionally not show the existing authorized NSP canal to the commissioner which flows through the land of Janjam Seshagirirao, Kruparao and Hanumanthurao who is son of plaintiff with a view to show that except X series canal there is no other canal for drawing water to his land.

52.The next contention raised by the learned counsel for defendants in his written arguments that the report of the commission in OS.No.358/1999 clearly indicates about the X series of murugu canal at points XX1X2 a new red mud was laid by the plaintiff just before her visit without knowledge and consent of the defendants.

53.The next contention raised by the learned counsel for the defendants that during cross examination, PW1 categorically admitted that the lands to the South of his land are at a height of 2 feet from his land and the lie is from South to North. PW2,

PW3, PW5 and PW6 in their cross examination categorically testified that the land of plaintiff and his son are joint. In view of categoric admission made by PW.s 1,2,3,5 and 6, the lands on the Southern side of plaintiff land i.e., Plot P are higher in level and land of plaintiff and his son are one and the same. The plaintiff is receiving water to his land through the land of his son through an authorized NSP canal situated to the East of land of Janjam Seshagirirao which flows to the lands of Kruparao and plaintiff’s son, ultimately reached the plaintiff’s land, it joins into the vagu situated to the East of the plaintiff’s land.

Dt.31.07.2018 32 Common judgment

54. The next contention raised by the learned counsel for the defendants that

PW1 categorically admitted that there are authorized channels to draw NSP water to his land. During 2001-2002, he raised crops with the water in the NSP canal. Pws.2 and 3 have categorically testified during cross-examination on 17.12.2008 that sine two or three years,the plaintiff is not raising paddy in his land that means till 2005 the plaintiff raised paddy crop in his land and contra to their evidence PW5 during cross- examination on 29.1.2009 testified that since six or seven years the plaintiff was not raising any crops in his land that means the plaintiff raised crops till 2003.

55. The learned counsel for the defendants further contended that from the evidence of Pws.1 to 3, 5 and 6, it is made clear that even in the absence of X series murugu canal, plaintiff raised paddy crops in his land through another source, hence the plaintiffs are not entitled to take aid under Easement Act for easement of necessity. The plaintiff failed to satisfy the ingredients under Section 18 of the Easement Act and even as per revenue records, there is no existence of X series canal and it is not an authorized canal.

56.The learned counsel for the defendants strongly contended that since the plaintiff is claiming water right through X series canal as right by way of prescription under Section 15 of the Indian Easement Act, as per Section 25 of the Act, plaintiff has to prove by cogent evidence that he used the X series murugu canal for a period of 20 years continuously on the date of fling the suit and plaintiff also failed to file revenue records to prove the same. Plaintiffs purchased plot ‘P’ of the plaint plan which is shown as ‘ABCD’ about 5 years back prior to giving evidence on 5.9.2008, from his own evidence as PW1 that he never used X series Murugu canal continuously for a period of 20 years. Plaintiff wantonly not filed sale deed before this court to prove his case that prior to his purchase, his vendors used X series Murugu canal and the said right was conveyed from his vendor. Further contended that mere existence of an easement is not enough and it requires to be established that the said easement is still subsisting and under use and enjoyment. The necessity contemplated under Section

Dt.31.07.2018 33 Common judgment 13(a) of the Indian Easements Act is absolute necessity which cannot be deprived without recording a finding on the basis of evidence on record. Further contended that under Section 39 of the Specific Relief Act, the burden of proof is on the plaintiff to prove his own, failure of defendants to prove their case,does not entitle the plaintiff for a decree of mandatory injunction. Further contended that the Advocate commissioner is only to note the existing physical features of the locality for which he was appointed and the Commissioner cannot decide the rights of the parties indispute. In support of his contentions, he placed reliance on the following decisions:-

(1) in between Janab Mohammed Ayub Vs., Janab Mohaboob Shariff and

another reported in 2004 (1) A.P.L.J. 95;

(2) In between Akula Bhagiraraju and others Vs., Padala Satyanarayana and

others reported in 2007 (2) ALD 323;

(3) In between U.L.Narasimham Vs., G.Venkatesa Rao reported in 2002 (1) L.S.

268 ;

(4) In between B.Ramulamma Vs., M/s.Venkatesh Bus Union and another

reported in 2009(3) Law Summary 173(DB);

(5) In between Landmark Developers, Hanmakonda, Warangal District Vs.,

State of Andhra Pradesh and others reported in 2013 (1) ALD 338 ;

(6) In between Kambhampati Srihari Vs., Nallamalli Kanchivaradarajam and

others reported in1998 (1) Law Summary AP 77;

(7) In between Justiniano Antao and others Vs., Smt Bernadette B.Pereira

reported in AIR 2005 Supreme Court 236;

(8) In between Sankar Kumar and another Vs., Mohanlal Sharma reported in

AIR 1998 Orissa 117 ;

(9) In between M.Govindarajulu Vs., Smt Bhushanamma reported in 2000 (2)

ALT 71;

(10) In between Bongu Ramulu and another Vs., Gudur Narender Reddy

reported in 1998 (1) L.S. AP 829 ;

Dt.31.07.2018 34 Common judgment

(11) In between Pedda Seetharamappa and others Vs., Pedda Appaiah reported

in AIR 1962 Andhra Pradesh 84 ;

(12) In between Chaitan Das Vs., Smt Purnabasi Pettnayak and others reported

in AIR 1988 Orissa 52 ;

57.The next contention raised by the learned counsel for the defendants that plaintiff must show that the defendants invades or threats to invade the plaintiffs right or enjoyment under Section 38 of the Specific Relief Act. But the plaintiffs failed to prove they had been receiving water through X series canal across the land of defendants to their land for raising wet crops. On the other hand, the defendants amply proved that plaintiffs have been drawing water to the land through authorized NSP canal situated on the south of the plaintiff’s land adjoining land of his son Hanumantha Rao and since there is a bund in between plots of plaintiffs and defendants, no water flows from the lands of defendants to the land of plaintiff and same was categorically admitted by Pws.1 to 3, 5 and 6.

58.The next contention raised by the learned counsel for the defendants that evidence let in by plaintiff is contradicting with each other and there is no iota of evidence is placed by the plaintiff that he has got right of enjoyment in drawing water from X series canal and same was obstructed by the defendants. On the other hand, the defendants amply proved that there is no ‘X’ series canal across their land and PW1 also categorically admitted that defendants purchased property as single plot does not disclose X series canal existing across their land. The plaintiffs have no personal right through X series canal at any point of time and for grant of equitable relief of injunction, the plaintiff must have personal interest in the matter. In support of his contention he placed reliance on the following decisions:

(1) In between Premji Ratansey Shah and others Vs., Union of India and others

reported in 1994 (3) ALT 25 SC;

Dt.31.07.2018 35 Common judgment

(2) In between M/s.Seemax construction Private Limited Vs., State Bank of

India and another reported in AIR 1992 Delhi 197 ;

(3) In between Kachana Padmavathi and another Vs., Proddatur Municipality,

Proddatur and others reported in 2007 (3) ALD 614 ;

(4) In between Surisetty Tulasi Venkata Nagabhushana Rao Vs., Visakhapatnam

Municipal Corporation, Visakhapatnam and another reported in 2013 (5)

ALD 547;

(5) In between Samala Tirupathayya and others Vs., Bandaru Baburao (died)

and others reported in 2012 (5) ALD 603.

59.The learned counsel for the defendants further contended that the plaintiff is not entitled to seek the relief of mandatory injunction against the defendants without the relief of declaration of his right over X series canal. Unless a declaration as to the illegality of the action was claimed, the possibility of granting mandatory injunction and consequential relief of perpetual injunction does not exist In support of his contention he placed reliance on following decisions:-

(1) in between Kannaiah Mandadi (died) and another Vs., Residents of

Gollapalem, Kanipakam, Chittoor District reported in 2014 (1) ALD 66;

(2) In between Kachana Padmavathi and another Vs., Proddatur Municipality

rep. by the Commissioner and others reported in 2007 (4) ALD 58;

(3) In between Surisetty Tulasi Venkata Nagabhushana Rao Vs., Visakhapatnam

Municipal Corporation, Visakhapatnam and another reported in 2013 (5)

ALD 547;

(4) In between Samala Tirupathayya and others Vs., Bandaru Baburao (died)

and others reported in 2012 (5) ALD 603.

(5) In between Kachana Padmavathi and another Vs., Proddatur Municipality,

Proddatur and others reported in 2007 (3) ALD 614 ;

Dt.31.07.2018 36 Common judgment

60. ISSUE No.1 in O.S.No.343/1999:-

It is the case of the plaintiffs that the defendants without any manner of right are trying to interfere with the possession and enjoyment of the plaintiffs in the plaint plan property and also Murugu canal shown as XX1X2 of Plot A of the plaint plan.

61. On the contrary, it is the contention of the defendants they have been drawing water through X series murugu canal across the lands of plaintiffs i.e.

defendants in O.S.No.358/1999 for raising paddy crops from the date of their pur;chase and exercising their right of drawing water over a statutory period. There is no dispute that Plot-A of the plaint plan belonged to the plaintiffs.

62.So far as Issue No.1 in O.S.No.72/2002 is concerned:- It is the case of the plaintiff that due to obstruction made by the defendants with regard to X series

Murugu canal, he failed in raising paddy crop in his land for the year 2001-2002, thus the plaintiff had sustained damage of Rs.40,000/-. On the other hand, it is the plea of the defendants that there is no existing X series canal across their land to draw water by the plaintiff to his land and plaintiff is not entitled for damages against them.

63. Coming to Ex.X1 which is file pertaining to Rc.B.No.617/1997

dated 4.9.1998. In the said file, it is evident that the then Mandal Revenue Officer,

Martur addressed a letter to the District Collector, Ongole in Rc.B.No.617/1997 dated 15.4.1998 wherein it is referred that one Sri Marella Anjaneyulu i.e. plaintiff herein filed a petition to the District Collector , Ongole requesting that he has land in S.No.151/3

Ac.5.00 which is being raised paddy crop since 1984 and this year one Tanneeru

Papaiah i.e. deceased 1 st plaintiff in O.S.No.358/1999, whose lands are adjacent to the said Anjaneyulu obstructed the water flowing in the field land and requested to give water. The said petition has been endorsed to the Mandal Revenue Offier, Martur to inspect the spot and sort out the problem. There is a drainage channel connected with irrigation channel at the upsteam in the western side of both S.Nos which is channalised

Dt.31.07.2018 37 Common judgment according to the convenience of the adjacent ryots and not included in the plan. At present there is a field channel in the north-east direction of the S.No.149/2 and it merges in the vagu poramboke. The said petitioner i.e. Marella Anjaneyulu contention is that if the land owner of S.No.149/2 gives permission to arrange flow of water for irrigation of his fields, which will form a straight channel to the already existed field channel on the west. Both parties have been informed to give up 23 links of their patta land for formation of field channels on the east and west and to the existed field channel and which merges at the starting of the vagu poramboke in the north-southern end. Both parties have been agreed to relinquish the 23 links of their patta land to convert the same as poramboke keeping in view of the future litigation”.

64.From the recitals of letter addressed by the then Mandal Revenue

Officer, Martur to the District Collector, Ongole under Ex.X1 file, it is made clear that there is a drainage channel on the western side of plot-A of plaint plan in

O.S.No.343/1999 i.e. on the western side of land of the plaintiff therein and it is not

included in the plan which falsifies Ex.X4 and supports the contention of the learned counsel for the defendants that the plaintiff failed to file entire village map of Isukadarsi and as per the village map, the dotted lines shown in the survey No.s. 149 to 151 are specified as cart tract and not the field channel and plaintiff taking advantage of dotted lines from survey numbers 149 to 151 stated that the X series murugu canal flows from 149 to 151 as per Ex.X4. PW8/Deputy Tahsildar also categorically admitted that he did not inspect the suit locality till the date of giving evidence. In such a case, how PW8 testified during cross-examination that the said channel was available by the date of passing orders in Ex.X2. There is no whisper from the recitals of Ex.X2 which is the carbon copy of proceedings issued by the then Mandal Revenue Officer, Martur dated 4.9.1998, the defendants were directed to restore the canal which was closed.

65. Coming to the evidence on record, PW1 during cross-examination categorically admitted that there was water in NSP canal in the year 2001-2002 and he

Dt.31.07.2018 38 Common judgment raised crops in his land. PW1 has categorically admitted that there are authorized channels to draw NSP water to his land. During 2001-2002, he raised crops with the water in the NSP canal. Pws.2 and 3 have categorically testified during cross- examination on 17.12.2008 that sine two or three years,the plaintiff is not raising paddy in his land that means till 2005 the plaintiff raised paddy crop in his land and contra to their evidence PW5 during cross-examination on 29.1.2009 testified that since six or seven years the plaintiff was not raising any crops in his land that means the plaintiff raised crops till 2003. Pws.2 to 3, 5 and 6 have deposed in one voice that they have not seen the defendants destroying the canal. Though PW1 during cross-examination has categorically testified that since 1999 he did not raise any crops in his land and land was kept fallow since then and he can produce documents to that effect. But there is no iota of document is placed before this court to prove that the plaintiff did not raise any crops in his land since 1999. In the next breath during cross-examination on 24.10.2008, PW1 has categorically admitted that there was water in the NSP canals in 2001-2002 in which year he raised crop and there is a government canal through the drainage canal claimed by him. PW1 pleaded his ignorance about any records available with NSP authorities. PW1 has categorically admitted that his son Hanumantha Rao has been raising crops in his land since 1999 and even prior to it.

66. PW3 during cross-examination on 17.12.2008, categorically admitted that plaintiff had raised paddy ever since he had purchased his land and lands of plaintiff and his son are joint and son of plaintiff by name Hanumantha Rao is using NSP canal for drawing water to his land and there is a vagu to the north of the land of plaintiff.

There is a canal to the north of the defendants and it flows into the vagu through the land of the plaintiff on the north. PW3 has categorically testified that he did not see the defendants destructing X series canal. Moreover, PW8/Deputy Tahsildar testified that X series murugu water flows at point X, turns to north all along western ridge of the defendants, then turns towards east all along northern ridge of the plaintiff, then at the north-east corner it joints into Vagu.

Dt.31.07.2018 39 Common judgment

67.In view of my foregoing discussion and on a careful scrutiny of the evidence of Pws.1 to 3, 5 to 8, categoric admissions made by plaintiff and witnesses examined on his behalf, coupled with documents filed on both sides and decisions cited supra by both sides in their written arguments, this court is of the considered opinion that the plaintiff failed to place any iota of evidence to prove that the plaintiff has been exercising right of drawing water through X series canal across the lands of the defendants shown as BB1 of the plaint plan and in the month of September, 1997 the defendants destroyed the said channel and consequently the plaintiff was unable to raise paddy crops in his land for the year 2001-2002, thereby he sustained damages to a tune of Rs.40,000/-. Absolutely there is no evidence on record to prove the case of the plaintiff. On the other hand, the defendants who are plaintiffs in O.S.No.343/1999 have clinchingly proved their case by cogent and convincing evidence that they have been enjoying plot A of plaint plan by taking water from murugu channel XX1X2 and hence the defendants in O.S.No.358/1999 i.e. plaintiffs in O.S.No.343/1999 are entitled for the equitable relief of permanent injunction restraining the plaintiffs from in any manner interfering with peaceful possession and enjoyment of plot A. All the above issues are answered accordingly.

OS.No.343/1999

68. IN THE RESULT, suit is decreed with costs by granting permanent injunction restraining the defendants, their men and agents from in any manner interfering with peaceful possession and enjoyment of the plaintiffs plot ‘A’ by defendants taking water of murugu canal XX1X2 to their plots D1 and D2 through plot ‘A’ by destroying of ridges of XX1 or Eastern ridge of plot ‘A’.

OS.No.358/1999

69. IN THE RESULT, the suit is Dismissed with costs.

Dt.31.07.2018 40 Common judgment

OS.No.72/2002

70. IN THE RESULT, the suit is dismissed with costs.

Typed to my dictation by the Stenographer Grade III, corrected and

pronounced by me in open court this the 31st day of July, 2018.

Prl. Junior Civil Judge, Addanki.

// APPENDIX OF EVIDENCE //

Witnesses Examined

For Plaintiff PW1 : Marella Anjaneyulu @ Anjaiah PW2 : Uppala Srinivasarao PW3 : Murikipudi Kruparao PW4 : K.Seshaiah (eschewed) PW5 : Karedla Anjaiah PW6 : Rolla Ramarao PW7 : K.Subbaravamma PW8 : K.Krishnamurthy

For Defendants DW1 : Tanneru Papaiah DW2 : Mandapati Veeraiah DW3 : M.Yesudasu (eschewed) DW4 : M.Subbaiah DW5 : Karpurapu Anjaiah DW6 : M.Neeraja

Documents Marked

For Plaintiff Ex.A1 : Pattadar pass book Ex.A2 : Title deed Ex.A3 : Cist receipt Dt.21.2.1990 Ex.A4 : Cist receipt Dt.27.3.1992 Ex.A5 : Cist receipt Dt.9.5.1997

Through PW7 Ex.C1 : Commissioner’s report Ex.C2 : Commissioner’s plan

For Defendants Ex.B1 : Registered sale deed Dt.12.7.1982 Ex.B2 : Cist receipt Dt.12.9.2000 Ex.B3 : Cist receipt Dt.12.9.2000

Dt.31.07.2018 41 Common judgment

Ex.B4 : Pattadar pass book Ex.B5 : Title deed Ex.B6 : Pattadar pass book Ex.B7 : Title deed Ex.B8 : CC of Commissioner’s report and plan in I.A.No.1250/99 in OS.343/99 Ex.B9 : CC of legal notice Dt.6.7.2000 and five postal receipts Ex.B10 : Postal acknowledgment Ex.B11 : Postal acknowledgment Ex.B12 : Postal acknowledgment Ex.B13 : Postal acknowledgment Ex.B14 : Returned unserved legal notice Ex.B15 : CC of counter in I.A.No.1370/2001 in OS.358/98 Ex.B16 : CC of order Dt.7.12.2001 passed in I.A.1370/2001 in OS.358/99 Ex.B17 : CC of objections filed in I.A.1370/01 in OS.358/99 Ex.B18 : Copy of report to Sub-Inspector of Police, Martur Ex.B19 : Postal acknowledgment Ex.B20 : Postal acknowledgment Ex.B21 : Postal acknowledgment Ex.B22 : Postal acknowledgment Ex.B23 : Proceedings in C.R.P.No.5568/01 Dt.13.9.2002 issued by Hon'ble High Court of A.P, Hyderabad. Ex.B24 : Four photographs in I.A.1370/01 Ex.B25 : Negatives of said photographs

Through DW6 Ex.C3 : Commissioner’s report Ex.C4 : Commissioner’s plan

Through PW8 Ex.X1 : File pertaining to R.C.B.No.617/97, Dt.4.9.1998 Ex.X2 : Carbon copy of proceedings of MRO, Martur Ex.X3 : Plan prepared by VAO which is attested by MRO, Dt.14.4.1998 Ex.X4 : Crossed attested copy of combined sketch for S.No.149 village No.113.

Prl. Junior Civil Judge Addanki

Dt.31.07.2018 1 Common judgment

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, ADDANKI

Dated this the 31 st day of July, 2018.

Present : SRI KALIVE SURESH BABU Prl.Junior Civil Judge, Addanki

Original Suit No.343 of 1999

1. Tanneeru Papaiah (died)

2. Tanneeru Ramaiah, S/o.Veeraiah, 60 years,

3. Tanneeru Audinarayana, S/o.late Papaiah, 56 years

4. Tanneeru Venkateswarlu, S/o.late Papaiah, 54 years

5. Tanneeru Ramanjaneyulu, S/o.late Papaiah, 52 years

6. Tanneeru Ravi Kumar, S/o.late Pichaiah, 40 years defendants 2 to 6 are Hindus, cultivation, R/o.Valaparla village, Martur Mandal,

7. Kunchala Subbaramulu @ Subbaravamma, W/o.late Ramanjaneyulu, 49 years, Thathapudi village, Chilakaluripeta, Guntur District.

8. Gungi Gangamma, W/o.Ramanjaneyulu, 45 years, Hindu, cultivation, R/o.Makkenavaripalem village, Santhamaguluru Mandal.

9. Thanneeru Anil, S/o.late Ramanjaneyulu, 24 years 10.Thanneeru Umamaheswara Rao, S/o.late Ramanjaneyulu, 21 years 11.Thanneeru Mallikarjuna Rao, S/o.late Ramanjaneyulu, 20 years 12.Thanneeru Achamma, W/o.late Ramanjaneyulu, 50 years defendants 9 to 12 are Hindus, R/o.Valaparla village, Martur Manda.

Plaintiffs 3 to 8 are legal representatives of deceased 1 st plaintiff amended

as per orders in I.A.487/12 Dt.16.8.2013

Plaintiffs 9 to 12 are L.Rs of deceased 5 th plaintiff, amended as per orders

in I.A.692/17 Dt.1.9.2017. … Plaintiffs

Vs.

1. Marella Anjaneyulu, S/o.Kotaiah, 70 years

2. Marella Hanumantha Rao, S/o.Anjaneyulu, 45 years

3. Marella Kotaiah, S/o.Anjaneyulu, 35 years. All are Hindus, cultivation, R/o.Darsi village and Mandal, Prakasam District. … Defendants

Original Suit No.358 of 1999

Marella Anjaneyulu @ Anjayya, S/o.Kotaiah, 55 years, Hindu, cultivation, R/o.Darsi Agraharam, Martur Mandal. … Plaintiff

Vs.,

1. Tanneeru Papaiah (died)

2. Tanneeru Ramaiah, S/o.Veeraiah, 58 years,

3. Tanneeru Audinarayana, S/o.late Pichaiah, 42 years

4. Tanneeru Venkateswarlu, S/o.late Pichaiah, 40 years

5. Tanneeru Ravi Kumar, S/o.late Pichaiah, 38 years

6. Tanneeru Ramanjaneyulu, S/o.late Pichaiah, 30 years defendants 2 to 6 are Hindus, cultivation, R/o.Valaparla village, Martur Mandal,

Dt.31.07.2018 2 Common judgment

7. Kunchala Subbaramulu @ Subbaravamma, W/o.China Anjaiah, 34 years, Hindu, Housewife, Thathapudi village, Guntur District, Chilakaluripeta.

8. Gungi Gangamma, W/o.Anjaiah, 36 years, Hindu, Housewife, Makkenavaripalem village, Santhamagulur Mandal.

9. Thanneeru Anil, S/o.late Ramanjaneyulu, 24 years 10.Thanneeru Umamaheswara Rao, S/o.late Ramanjaneyulu, 21 years 11.Thanneeru Mallikarjuna Rao, S/o.late Ramanjaneyulu, 20 years 12.Thanneeru Achamma, W/o.late Ramanjaneyulu, 50 years defendants 9 to 12 are Hindus, R/o.Valaparla village, Martur Manda.

Defendants 3 to 8 are legal representatives of deceased 1 st defendant

amended as per orders in I.A.661/12 Dt.16.8.2013

Defendants 9 to 12 are L.Rs of deceased 6 th defendant, amended as per

orders in I.A.693/17 Dt.1.9.2017. … Defendants

Original Suit No.72 of 2002

Marella Anjaneyulu @ Anjayya, S/o.Kotaiah, 57 years, Hindu, cultivation, R/o.Darsi Agraharam, Martur Mandal. … Plaintiff

Vs.,

1. Tanneeru Papaiah (died)

2. Tanneeru Ramaiah, S/o.Veeraiah, 58 years,

3. Tanneeru Audinarayana, S/o.late Pichaiah, 42 years

4. Tanneeru Venkateswarlu, S/o.late Pichaiah, 40 years

5. Tanneeru Ravi Kumar, S/o.late Pichaiah, 38 years

6. Tanneeru Ramanjaneyulu, S/o.late Pichaiah, 30 years defendants 2 to 6 are Hindus, cultivation, R/o.Valaparla village, Martur Mandal,

7. Kunchala Subbaramulu @ Subbaravamma, W/o.China Anjaiah, 34 years, Hindu, Housewifr, Thathapudi village, Guntur District, Chilakaluripeta.

8. Gungi Gangamma, W/o.Anjaiah, 35 years, Hindu, Housewife, Makkenavaripalem village, Santhamagulur Mandal.

9. Thanneeru Anil, S/o.late Ramanjaneyulu, 24 years 10.Thanneeru Umamaheswara Rao, S/o.late Ramanjaneyulu, 21 years 11.Thanneeru Mallikarjuna Rao, S/o.late Ramanjaneyulu, 20 years 12.Thanneeru Achamma, W/o.late Ramanjaneyulu, 50 years defendants 9 to 12 are Hindus, R/o.Valaparla village, Martur Manda.

Defendants 3 to 8 are legal representatives of deceased 1 st defendant

amended as per orders in I.A.672/12 Dt.16.8.2013

Defendants 9 to 12 are L.Rs of deceased 6 th defendant, amended as per

orders in I.A.693/17 Dt.1.9.2017. … Defendants

These three suits are coming on 9.7.2018 before me for final hearing in the presence of Sri P.Ramesh, Advocate for plaintiff in O.S.No.343/1999 and defendants in

O.S.No.358/1999 and O.S.No.72/2002 and of Sri A.Nagarjuna Rao-Advocate for the

Dt.31.07.2018 3 Common judgment plaintiff in O.S.No.358/1999 and O.S.No.72/2002 and defendants in O.S.No.343/1999 ; upon perusing the oral and documentary evidence on record and upon hearing the arguments on both sides, and having stood over for consideration till this day, this Court delivered the following :- // C O M M O N J U D G E M E N T //

Original Suit No.343 of 1999

This suit is filed for permanent injunction restraining the defendants and their men from in any manner interfering with peaceful possession and enjoyment of the plaintiff in respect of plot A by the defendants taking water of Murugu canal X, X1, X2 to their plots D1 and D2 through plot A by destroying the ridges of X, X1 or Eastern ridges of plot A and for costs.

02. The brief averments of the neat copy of amended Plaint filed on 8.9.2017 are as follows:

The plaintiffs 1 and 2 are the brothers. The first defendant is the father of defendants 2 and 3. The first defendant is the owner of plot D1 and second defendant is the owner of plot D2 of the plaint plan. Plot A of the plaint plan was absolute property of Chekuru Krishnamurthy and his two sons Vamsi Krishna and Krishna chaitanya of Guntur. Plaintiffs 1 and 2 have purchased the said property under a

Registered sale deed Dt.12.7.1982 for Rs.7,000/- and possession was delivered. Since then, the plaintiffs 1 and 2 have been in possession and enjoyment of the Plaint schedule property and enjoying the same with absolute rights. Pattadar pass book was given by the government and they have been paying taxes to the government. A few years back plaintiffs 1 and 2 converted the land purchased by them into wet land and cultivating the same as wet land by taking Murugu water released by the

Ayacutdars. The bunds on all the four sides of plot A and X, X1, X2 belong to the plaintiffs 1 and 2. This year also they cultivated ‘plot A’ and made it ready for transplantation.

Dt.31.07.2018 4 Common judgment ii) It is further averred that X, X1, X2 Murugu canal as shown in the plaint plan is an old and ancient one which is about 2 ½ feet in width having grass grown ridges of 1 foot in width and 1 ½ feet in height on either side of it and the said canal is in plaintiffs land, it joins Vagu shown as V V1 at North-East corner of plot P. The defendants have no right, title or possession either in plot A or P or Murugu canal shown as X, X1, X2. The Plot S is in an extent of Ac.10.00 cents and the same was kept beedu and belonged to Mombanti Venkateswarlu and the same was purchased by

Janjanam Seshagiri Rao and he brought the same under cultivation. Plot S1 belong to

Sundara Rao, ‘Plot M’ belong to Krupa Rao, Plot D2 belong to 2nd defendant and plot

D1 belong to joint family of D1 and his sons. Plot P1 is poramboku land and plot P belong to plaintiff. Owner of plots S, S1, M, D2 and D1 never received any Murugu water to their lands from X, X1, X2 canal. There is a Murugu canal shown as ‘C C1’ to the North of plots ‘S and S1’ and the said Murugu canal joins the Vagu marked as V

V1 running from South to North on the Eastern side of plots S1, M, D2, D1, P1 and P.

The defendants are powerful persons and the plaintiffs belong to different village i.e.,

Valaparla, on account of village fractions and enmity, the defendants are giving out that they will destroy the ridges of Murugu canal X, X1, X2 to the East of X, X1 and take

Murugu water from it through the plaintiffs plot A to their fields D1 and D2. If they are allowed to do so, the plaintiffs will be put to irreparable loss and injury, hence the suit.

03. First defendant filed his written statement and the same was adopted by defendants 2 and 3. The first defendant refuting entire allegations of the plaintiff in the plaint and further contended that the plan filed along with plaint is not correct and there is a continuing canal to draw water to the lands of the defendants across ‘A’ of the plaint plan. There is no other source to draw water to the lands of defendants. For the last 20 years these defendants are utilizing the water source through the canal which is in existence across ‘A’ marked land shown in the plaint plan. Even prior to filing the suit, when the plaintiffs intending to cause obstruction to their field channel, the matter was referred to Mandal Revenue Officer, Martur, the then Mandal Revenue Officer also

Dt.31.07.2018 5 Common judgment passed orders to continue the canal as usual in RC.No.B6/7/97 Dt.4.9.1998. In pursuance of the orders, the field channel was restored by the respective parties. The plaintiffs in order to close the canal across their lands approached the court by suppressing the real facts. Right from the beginning, across ‘A’ marked portion 2 inches width of the field canal is in existence to draw water to the lands of defendants connecting drain canal partly as shown in the plaint plan.

ii) The defendants filed suit in OS.No.358/99 on the file of this court with true and correct plan and got appointed Advocate Commissioner to show the existing physical features. These defendants have perfected X-series field canal across ‘A’ marked plan by way of customary easement. The plaintiffs are not entitle to interfere with the water rights of defendants and on the date of filing the suit the paddy seed bed was in existence in the land of these defendants. The said field canal diverts in between the plots A and D1 towards North to some extents and it further diverts to East through point P1 of the plaint plan and joins into vagu situated on the eastern side.

Through the said canal only the defendants have to draw water to their lands by arranging sluice from the canal situated in between plots A and B1. The Advocate

Commissioner also observed the existence of old ridge canal in between plot A and D1.

In the midst of plot A there is a continuation canal in order to draw water by the defendants. At the time of filing suit, in order to give colour of reality, the plaintiffs have not shown the entire canal either in between plot ‘A’ or in between ‘A’ and D1 shown in the plaint plan, filed false suit and got appointed Advocate Commissioner. The plaintiffs have not shown the existence of canal to the commissioner and the commissioner mentioned width of 15 feet and 2 feet depth of grass grown old canal in between plot ‘A’ and D1. As the lands are wet lands already season was started by the date of filing suit, plaintiffs and defendants made necessary repairs to their lands. In that connection on the date of inspection of commissioner the field canal some extent was removed by the plaintiffs in the middle of plot ‘A’ and after his inspection same was replaced. Even prior to filing the suit by the plaintiffs, the defendants already

Dt.31.07.2018 6 Common judgment arranged paddy seed bed in their land through the water from the canal which was located in the middle of plot ‘A’ and in between plot ‘A’ and D1.

iii) The plot M1 and S1 shown in the plaint plan are lower in level than D1 and D2. The plot D2 shown in the plaint plan is a Dibba which is at height of more than three feet. These defendants have no knowledge about the suit filed by him by the date of filing suit against the plaintiffs. So, the question of suppression of fact does not arise. There is no cause of action in filing the suit and prayed to dismiss the suit.

04. Basing on the pleadings of both parties the following issues were settled for trial :

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

2. To what relief ?

Original Suit No.358 of 1999

05.This suit is filed for grant of mandatory Injunction directing the defendants to restore X-series field canal as shown in the plaint plan and for grant of permanant injunction restraining the defendants and their men from in any manner interfering with the plaintiff’s peaceful possession and enjoyment of water rights through X-series field channel as shown in the plaint plan.

06. The brief averments of the neat copy of amended Plaint filed on 8.9.2017 are as follows:

Plaintiff is the absolute owner of the Plaint schedule property. He converted the land into wet land about 30 years back and raising paddy crops every year and paying necessary water cess to the revenue authorities. The revenue authorities also issued ryotwari pass book and title deed in his favour. ‘ABCD’ shown in the plaint plan belong to the plaintiff which was shown as ‘P’ in the plaint plan, B, B1 of the plaint plan belongs to the land of defendants. Plaintiff and defendants are drawing water to their respective land through X, X1, X2, X3, X4 of the plaint plan for

Dt.31.07.2018 7 Common judgment the last 30 years. The plaintiff has no other source to draw water to his land, except X- series canal of the plaint plan.

ii) While matter stood thus, defendants closed X-series field channal at X1 point in the month of September, 1997 and the plaintiff reported the matter to Mandal

Revenue Officer, Martur and Mandal Revenue Officer, Martur on his personal inspection settle the dispute and directed the plaintiff and defendants to restore X-series field channel at a width of 23 links. The then Mandal Revenue Officer, Martur passed orders wide RC. B6/7/97, Dt.4.9.1998. As per the orders of the then Mandal Revenue Officer

X-series field channel was restored. Since then, the plaintiff has been drawing water without any interruption caused by the defendants till last year. The plaintiff sowed the seed bed and it is ready for transplantation and the plaintiff is also making necessary agricultural operations for transplantation of paddy crop. The defendants keeping previous misunderstandings in mind for the last two days have been openly giving out in the village that they will not allow the plaintiff to drew water through X-series field channel.

iii) Subsequent to dismissal of CMA.1/2001, the plaintiff filed application for implementation of Injunction orders in order to repair X-series field channel in

I.A.1370/01 and the same was allowed and when the police about to implement the

Injunction orders, they found X-series field channel was damaged by the defendants.

Except X-series field channel there is no other source to draw water to the plaintiff’s land. On account of misdeeds of the defendants, the plaintiff is unable to raise any crop in the Plaint schedule property and sustained huge loss, hence the suit.

07.First defendant filed his written statement which was adopted by second defendant refuting entire allegations of the plaint and further contended that the plan filed along with plaint by the plaintiff is incorrect and misleading. The plots ‘B B1’ of the plaint plan belonged to the defendant and purchased the same from one Chekuru

Krishna Murthy and his two sons under a registered sale deed Dt.12.7.1982. Since

Dt.31.07.2018 8 Common judgment then, defendants have been in possession and enjoyment of the same. Defendants purchased the said land as a dry land which is not under wet ayacut. A few years back defendant converted the same into wet land and having been in possession and enjoyment of the same by taking murugu water released by the Ayacutdars. The canal through which murugu water is being drawn by the defendants to their lands enter into the lands of defendants at X point, from them it turns towards North and goes along with Western ridge of the defendants land to some extent and again turns towards East along with Northern ridge of the defendants land, ultimately joins into Vaagu at North-

East corner of defendants land and the water flow into the said vaagu is from South to

North. The said murugu canal is an old and ancient one of 2 ½ feet in width having grass grown ridges of one foot in width and 1 ½ feet in height on either side.

ii)It is further averred that the said canal is in defendants land, there is no canal at all that goes across the defendants land and enters into the land of plaintiff through the land of defendants. The plaintiff has no right at all to draw water from the lands of defendants to his land since there is no canal at all. Moreover, plot P is higher in level than the plot B B1 by nearly 1 ½ feet to some extent bund of same height put up by the plaintiff. The owners of the lands situated on the South of the defendants land and plaintiff never received any water from the canal. Since the plaintiff and his sons taking advantage of the fact that defendants belonged to different villages and they have no support, giving out that they will destroy the ridge of the murugu canal in the land of defendants and take murugu water to their lands from the land of defendants, thereby defendants filed suit in OS.No.343/1999 on the file of this court against them for the grant of permanent injunction. Along with suit they also filed a petition in

I.A.No.1249/1999 for grant of temporary injunction. The defendants also got appointed an Advocate Commissioner to note down the non existence of any canal i.e., X series field channel across B B1 plots to draw water through it from the lands of defendants to the land of plaintiff. The Advocate Commissioner also visited the suit location and noted the non-existence of any such canal in the land of defendants, suppressing the filing of

Dt.31.07.2018 9 Common judgment

OS.No.343/1999, the plaintiffs filed the present suit with false allegations and they

approached the court with unclean hands,hence the suit is hit by section 10 of CPC.

iii)It is further averred that there is a land belonging to one Seshagiri Rao to the South of ‘B1’ plot. To the South of said Seshagiri Rao’s land, there is a murugu canal runs from West to East and ultimately joins into Vagu situated on East of plot P and it is the source of water to the plaintiffs land. There is an authorized canal through the land of said Seshagiri Rao and said canal water situated to the South of plot P and also some portion of plot P. There is a XX1X2X3X4 field channel and same was closed by the defendants in the month of September, 1997 and the same was restored as per the orders of Mandal Revenue Officer, Martur is false. This defendant or his brother never agreed before Mandal Revenue Officer, Martur to allow the plaintiff to draw water from their lands to his land. If there is any such agreement before the Mandal Revenue

Officer, same must be a fabricated and manipulated one. Moreover from the order of

Mandal Revenue Officer, it was known that both the parties are directed to dig a canal of 21 links width at their own cost to take water to the land of plaintiff from the land of defendants. It is made clear from the order of Mandal Revenue Officer that there is only a direction to dig the canal and it does not disclose as to the canal was actually dug. By the date of visit of the Advocate Commissioner in OS.No.343/1999 there exists no canal from the land of defendants to the land of plaintiff, hence the question of plaintiff drawing water to his land from the canal through the land of defendants and defendants are threatening to close the said canal does not arise. The existence of X series field channel across the land of defendants is neither supported by revenue records nor records of NSP department. The plaintiff has no right and title to draw water to his land from the land of defendants and prayed to dismiss the suit with costs.

08. Defendants 1 and 2 filed their neat copy of additional written statement contended interalia that there is no field channel across their land to the field of plaintiff and under the guise of Injunction orders, the plaintiff has been trying to dig a new canal

Dt.31.07.2018 10 Common judgment across their field and if the plaintiff succeeds in digging a canal in the private land of these defendants, they would suffer irreparably. The plaintiff tried to dig a canal across the land of these defendants and obtained interim orders suppressing the real facts.

When he filed I.A.No.1370/01 the first defendant filed his counter and this court passed orders on 7.12.2001 in the said I.A. issued official memorandum to the Martur police directing police to give police aid to the plaintiff for repairing only the existing X1 to X4 field channel and plaintiff was not dig new channel and accordingly police visited the suit lands on 24.12.2001 and found that entire lands of defendants is transplanted with paddy and there is no channel across their lands.

ii) As the plaintiff failed to dig a new channel under the guise of interim

Injunction as well as police aid he amended the plaint with false allegations. There is no X-series field channel in the fields of these defendants and the plaintiff has no source of canal through the lands of these defendants. When there is no X-series field canal in their lands, the question of damaging the same does not arise, the land through which plaintiff is claiming that there is a field channel is the private land of defendants and plaintiff has no locus standi to claim that there exist a field channel and it is a source of drawing water to his land. The plaintiff never drew water through the so-called imaginary canal. For the last several years there is a drought and even these defendants are not getting water to their land. These defendants got dug a bore well in their field towards South-West corner, have been drawing water to their land with the help of oil engine have been raising crops. These defendants filed a suit in

OS.No.343/1999 on the file of this court for permanant injunction. Along with the said

suit, they filed I.A.1250/99 for appointment of Advocate Commissioner to visit the suit locality and the commissioner visited the suit locality and filed a report wherein it is made clear that there is no canal across the field of these defendants to the land of plaintiff.

After the commissioner visited the suit land the plaintiff mischievously filed the present suit suppressing the filing of suit by the defendants got appointed another commissioner. The commissioner was appointed but the plaintiff did not even serve notice to the defendants and the report is invalid and cannot be taken into consideration.

Dt.31.07.2018 11 Common judgment

The suit for mandatory Injunction is not maintainable without seeking declaration of the right of the plaintiff with respect to his suit claim and prayed to dismiss the suit.

iii) During the pendency of suit first defendant died and defendants 3 to 8 were added as legal representatives of deceased/ first defendant as per orders in

I.A.661/12, Dt.16.8.2013. Similarly 6th defendant was died and defendants 9 to 12 were added as legal representatives of deceased / sixth defendant as per orders in

I.A.693/17, Dt.1.9.2017.

09. Basing on the pleadings of both parties the following issues were settled for trial :

1. Whether the plaintiff was enjoying water rights through X series field channel as on the date of the suit ?

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

3. To what relief ?

Additional Issue framed on 22.4.2014:

Whether the suit for mandatory injunction is maintainable without the relief

of declaration?

Original Suit No.72 of 2002

10.This suit is filed for claiming damages of Rs.40,000/- with interest at the rate of 12% p.a. and for costs.

11. The brief averments of the neat copy of Plaint filed on 8.9.2017 are as follows:

Plaintiff is the absolute owner of the Plaint schedule property, having converted the land into wet land about 30 years back and has been raising paddy crops every year and paying necessary water cess to the revenue authorities. The revenue authorities also issued ryotwari pass book and title deed in his favour. Except the plaintiff nobody has got right or interest over the Plaint schedule property.

Dt.31.07.2018 12 Common judgment ii) The defendants have got land on the Western side of the plaintiff’s land.

The plaintiff has to get water to his land in between the land of defendants through a field channel. Except the said source, the plaintiff has no other source to get water to his lands. When the defendants caused obstruction to the field channel of plaintiff, he referred the dispute to the then Mandal Revenue Officer, Martur and the same was settled in RC.No.B6/7/97, Dt.4.9.1998. Subsequently the plaintiff used to get water through the field channel located in between the lands of defendants. The defendants also filed false suit alleging that plaintiff tried to damage their ridges and for grant of permanent injunction in OS.No.343/1999 suppressing the real facts and also filed an application in I.A.No.1249/99. Subsequently the plaintiff got filed suit in OS.No.358/1999 on the file of this court against the defendants for grant of permanent injunction from interfering with peaceful possession and enjoyment of X-series field channel. Along with said suit, he also filed application for grant of Temporary injunction in

I.A.No.1308/1999. He also got appointed an Advocate Commissioner and Advocate

Commissioner in his report clearly mentioned that X-Series field channel is in the defendants land to draw water to plaintiff’s land and it is the only source of water to the plaintiff. On merits the injunction petition filed by the plaintiff is allowed in

I.A.No.1208/1999 and the application filed by the defendants in I.A.No.1249/1999 was dismissed. Aggrieved by the same, the defendants preferred CMA.No.1/2001 and

CMA.No.2/2001 and the said appeals were dismissed on merits.

iii)Even after passing the injunction order against the defendants they are not allowed to draw water to the plaintiffs land through X-series field channel. The defendants also damaged some portion of field channel high handedly inspite of injunction order pending against them. All the surrounding land owners including the defendants raised the crops and got good yield. In case of wet lands the investment for ploughing, fertilizers, pesticides etc., is more than Rs.5,000/- per acre and the yield per acre will be more than 35 bags of paddy, each bag worth is more than Rs.400/- and gross income per acre will be Rs.14,000/- excluding expenses and the net income per

Dt.31.07.2018 13 Common judgment acre is Rs.8,000/-, hence the plaintiff sustained total loss of Rs.40,000/- on account of mischief committed by defendants. Plaintiff filed an application in I.A.No.1370/2001 for granting police aid in implementing injunction order and to make necessary repairs to X-

Series field channel and the same was allowed by this court. On the directions of this court the Sub-Inspector of Police, Martur went to plaint schedule property for implementation of injunction orders but they were unable to implement the order since field channel was dismantled and defendants also diverted the field channel. The

SHO, Martur submitted a memo to this court expressing inability to implement the orders of this court. It is further averred that the plaintiff also filed an application for appointment of Advocate Commissioner to observe the recent transplantation made by defendants through X-series field channel and to note down the plaintiffs land kept idle on account of plough of X-series field channel which was dismantled. Since the plaintiff sustained loss of Rs.40,000/- on account of mischief committed by the defendants and plaintiff was unable to raise paddy crop during the agricultural year 2001-2002. The plaintiff also issued a legal notice on 25.3.2002 to the defendants by calling upon them to pay damages of Rs.40,000/- and defendant got issued a reply notice Dt.9.4.2002 with false allegations.

12.Subsequent to the suit, first defendant died intestate on 18.1.2012 by leaving defendants 3 to 8 as his legal heirs since they succeeded the estate of deceased first defendant thereby they were impleaded as parties as per orders in

I.A.No.672/2012 Dt.16.8.2013. 6th defendant also died on 19.8.2016 by leaving defendants 9 to 12 being sons and wife and they were impleaded as parties as per orders in I.A.No.694/2017 Dt.1.9.2017, hence the plaintiff constrained to file the suit claiming damages of Rs.40,000/- with subsequent interest at 12% p.a.

13.First defendant filed his written statement which was adopted by D2 by filing a memo refuting entire allegations of the plaintiff in the plaint and further contended that defendants purchased an extent of Ac.2.75 cents of land from Chekuri Krishna

Murthy and his two sons under a registered sale deed Dt.12.7.1982 and possession was

Dt.31.07.2018 14 Common judgment delivered to them. On the date of purchase it was a dry land which is situated to the

West of plaint schedule. A few years back, defendants have converted the dry land into wet land, have been cultivating by taking Murugu water released by the ayacutdars.

The canal through which Murugu water is being drawn by the defendants to their lands enter into the land of defendants at the middle of the Western ridge of the defendants land, from there it turns towards North and run along with Western bridge of the defendants land to some distance, again it turns towards East and run along with

Norther ridge of the defendants lands, ultimately on the North-East corner of the defendants land it joints into vagu situated on the East of the defendants land and plaintiffs land as well. Thus, the said murugu canal is in the land of defendants which is an old and ancient one of 2 ½ feet in width having grass grown bunds of one foot in width and 1 ½ feet in height on either side. It is further averred that there is no canal or any kind of field channel that runs across the land of defendants to plaintiffs land, there exists a field channel at all in the land of defendants to draw water from it to the land of plaintiff. The plaintiff has no right at all to draw water to his land from the land of defendants as there is no field channel. Moreover, the plaint schedule property is higher in level than the land of defendants by nearly 1 ½ feet. Since there is no field channel in the land of defendants to draw water through which to the lands of plaintiff, the question of defendants not allowing the plaintiff to draw water to his land and their damaging the canal to some extent high handedly does not arise ii)It is further averred that the defendants are residents of Valaparla village whereas their lands and plaint schedule property are situated at Darsi village, taking advantage of the same, when the plaintiff and his son were giving out that they will destroy the bunds of murugu canal situated in the land of defendants and take water from it to their lands by digging the channel across their land, the defendants filed suit in

OS.No.343/1999 on the file of this court for permanent injunction. Along with the suit,

the defendants also got appointed an Advocate Commissioner to inspect the suit locality.

When the Advocate Commissioner offered notice to plaintiffs, they refused to receive the same.

Dt.31.07.2018 15 Common judgment iii)It is further averred that the Advocate Commissioner visited the suit locality and filed his report, thereafter plaintiff filed another suit in OS.No.358/1999 on the file of this court against the defendants by suppressing the facts and pendency of earlier suit and took another commissioner, got filed another report without any notice or information to the defendants. It is further averred that the plaintiff filed a petition in

I.A.No.1378/2001 for granting police aid with an intention to dig a new channel across the lands of defendants under the guise of police aid. The Sub-Inspector of Police by name K.Chenchu Ramarao visited the lands of plaintiff and defendants on 24.12.2001 at about 10.30 a.m. along with his staff and both parties, found that there is no channel across fields of defendants and entire fields of defendants was transplanted with paddy.

As there is no channel much less X-series channel across the land of defendants, the police went away and police also filed a memo Dt.3.1.2002 along with photographs and their negatives into the court bringing the said facts.

iv) The Sub-Inspector of Police visited the lands on 24.12.2001 at 10.30 a.m., even prior to his date of visit he concocted a report by obtaining statements from the henchmen of the plaintiff and visited the lands subsequently. The plaintiff again filed a petition in I.A.No.172/2002 for appointment of Advocate Commissioner, but the said petition was dismissed. There is a land belonging to one Jangam Seshagiri Rao to the

South of defendants land. There is a field channel in the lands of Seshagiri Rao and through the said field channel, the plaintiff is drawing water to his lands in addition to the water from the canal situated on the South of lands of said Seshagiri Rao. He is also drawing water from the vagu situated to the East of his land and flow of water in the said vagu is from South to North. It is further averred that the plaintiff has no right to draw water from the lands of defendants. The alleged proceedings before the Mandal

Revenue Officer, Martur are false and concocted. The lands of defendants are patta lands. There is no channel through their lands. The plaintiff has no right to draw water from the lands of defendants. The plaintiff came to the court with unclean hands unless and until he establishes a right to draw water from the lands of defendants he has no right to claim damages from the defendants. There is no cause of action in filing the

Dt.31.07.2018 16 Common judgment suit. The yield in their land is not more than 20 bags per acre per annum if all the conditions are favourable. The investment will be Rs.6,000/- per acre per annum and net income will be around Rs.1500/- per acre per annum. The rate per bag of paddy is

Rs.300/-. The net income of plaintiff will not exceed Rs.7,500/- per annum and prayed to dismiss the suit with costs.

14. Basing on the pleadings of both parties the following issues were settled for trial :

1.Whether the plaintiff is entitled for damages as prayed for ?

2.To what relief ?

15.As per orders in I.A.No.467/2007 dated 4.7.2007, the suit in

O.S.No.358/1999, O.S.No.343/1999 and O.S.No.72/2002 were clubbed together for

common trial and common judgment and evidence was recorded in O.S.No.358/1999.

16.On behalf of the plaintiff, Pws.1 to 3, 5 to 8 were examined and

Ex.A1 to Ex.A5, Ex.X1 to Ex.X4, Ex.C1 and Ex.C2 were marked. The chief examination affidavit of PW4 was eschewed on 29.10.2009. On behalf of the defendants, Dws.1, 2, 4 to 6 were examined and got marked Ex.B1 to Ex.B25, Ex.C3 and Ex.C4. The chief examination affidavit of DW3 was eschewed on 1.2.2010.

16 (i)The learned counsel for plaintiff and learned counsel for defendants filed their written arguments on 20.6.2014 and 18.11.2014 respectively before my predessor.

16 (ii) For the sake of convenience, the parties will be arrayed as plaintiff and defendants as in O.S.No.358/1999.

17.Issue Nos.1 & 2 and Addl. Issue in O.S.No.358/1999:

Issue No.1 in O.S.No.343/1999

Issue No.1 in O.S.No.72/2002

In order to avoid repetition for the sake of convenience, I am discussing all the above issues together hereunder.

Dt.31.07.2018 17 Common judgment

The undisputed facts of the case are that the plaintiff is the absolute owner of the plaint schedule property shown as “ABCD” of the plaint plan having purchased the same about 15 years back from Bollineni Ramaiah of Ongole. It is also not in dispute that the defendants 1 and 2 had purchased “B” “B1” of the plaint plan from one Chekuru Krishna Murthy and his sons under a Registered Sale deed dated 12.7.1982.

18.It is the case of the plaintiff that plaintiff and the defendants are drawing water to their lands through canal shown as XX1X2X3X4, that in the month of

September, 1997, the defendants closed the X series filed channel at X1 point and same was settled by the Mandal Revenue Officer, Martur by directing both parties to restore the X series at a width of 23 links under order in Rc.B6/7/1997 dated 4.9.1998 and “ X” series filed channel was restored. It is further case of the plaintiff that there is no source to draw water to his land except X series channel.

19.Per contra, it is the case of the defendants that canal through which murugu water is being drawn by the defendants to their lands enter into the land of the defendants at X point, then it turns towards north , goes along with western ridge of defendants land to some extent, again turns towards east all along northern ridge of defendants, at north-eastern corner of the defendants lands joins into vagu situated on the east of the defendants and the water flow in the said vagu is from south to north, the said murugu canal is an old and ancient which is 2 ½ feet in width, having grass grown ridges. It is their further case that there is no canal that goes across the defendants lands , enters into the land of plaintiff from the lands of defendants.

20.Plaintiff in order to prove his case, examined himself as PW1 by filing his chief examination affidavit which is the replica of plaint,hence they are not reproduced hereunder. PW1 has categorically admitted that property shown in the plaint plan as “ABCD” was purchased by him from Bollineni Ramaiah, Ongole and the plots shown as “BB1” in the plaint plan purchased by defendants 1 and 2 even two years prior to his purchase. The lie of plot “ABCD” and “BB1” are from west to east.

Dt.31.07.2018 18 Common judgment

PW1 has categorically admitted that in between the land of defendants and his land,there is a ridge of 2 feet and he used to raise paddy in his land ever since the advent of NSP canal. There are authorized channels to draw NSP water to his land. He has no document to show that NSP water comes to his land through X series channel shown in the plaint plan. About one year prior to filing the suit in O.S.No.343/1999, the defendants obstructed the passage of water to his land through X series canal and he did not issue any legal notice to the defendants. He had raised crop in his land during that year. PW1 has categorically admitted that defendants 1 and 2 have purchased single plot from Cherukuri Venkata Subbaiah, he again says that there is a canal in the middle of their plot. PW1 categorically admitted that in the sale deed of the defendants it is recited as single plot was sold and existence of water canal in the middle was not recited therein.

21.PW1 categorically admitted that the land to the south of his land are at a height of 2 feet from his land and the lie of land is from south to north. There is a land of Marella Hanumantha Rao to the south of his land, to the further south of

Hanumantha Rao, there is land of Murikipudi Krupa Rao and two others. To the south of the land of Seshagiri Rao, there is a land of Adavapalli Anjaneyulu, there is a canal in between the lands of Seshagiri Rao and Anjaneyulu and it flows from west to east. The said Marella Hanumantha Rao , Murikipudi Krupa Rao and two others are drawing water through the cement sluice. It was suggested to PW1 that he is cultivating the land with the water of the said canal only and he never drew water through “X” series canal.

22.PW1 categorically admitted that his son Marella Hanumantha Rao has got land to the south of his land and his son’s land is lower in level than his land and difference in the land level is half feet. There is a sluice in the west of his land in the middle of the land except the said sluices, he has no other sluice. To the north of his land there is a canal and it flows into vagu. PW1 categorically admitted that, there is a canal to the north of land of defendants adjoining their ridges and it flows upto Vagu.

PW1 testified that seven or eight months prior to filing the suit, Mandal Revenue Officer

Dt.31.07.2018 19 Common judgment visited his land, recorded his statement. It was suggested to PW1 that arrangements were made by the Mandal Revenue Officer to let him draw water through the canal along with southern side of the defendants land but not through the middle of their lands.

It was suggested to PW1 that he dug a canal in the middle of the lands of defendants illegally and had shown the same to Commissioner. PW1 has categorically admitted that even on the date of visit of Advocate Commissioner, there was a paddy crop on either side of the canal and he had raised paddy seed bed in his land on the date of commissioner’s visit.

23.During cross-examination, PW1 categorically testified that since 1999 he did not raise any crops in his land and his land is kept fallow since then and he can produce documents to show that his land is kept fallow since 1999. There is a government canal through the drainage canal claimed by him. PW1 has categorically admitted that his son Hanumanth Rao is raising crops since 1999 and prior to it. It was suggested to PW1 that X series canal is not in existence and he never drew water through the same.

24.PW2/Uppalla Srinivasa Rao, who has got Ac.1.00 of wet land on the west of plaint schedule property testified that during the pendency of the suit defendants damaged X series filed channel, from the date of suit till today, plaintiff was unable to raise even dry crops since the land is unfit for raising the same. He further testified that there is no possibility to draw water to the plaintiff’s land even from

Southern side plot since it is lower in level and plaintiff has got only X series field channel to draw water to his land to raise wet crops. During cross-examination, PW2 categorically testified that he does not know whether the existence of X series canal was recited in the sale deed of plaintiff. PW2 has categorically admitted that there is a ridge of two feet height in between the land of plaintiff and land of defendants.

25.During cross-examination, PW2 has categorically admitted that land of Marella Hanumantha Rao who is son of plaintiff is abutting suit property on the

Dt.31.07.2018 20 Common judgment southern side, to the southern side of Hanumantha Rao, there is a land of Murikipudi

Krupa Rao and others. There is a land of Janjam Seshagiri Rao to the south of the land of defendants. There is a canal in between the land of Seshagiri Rao and Aravapalli

Anjaneyulu and they are receiving water from NSP canal and the said canal is being used by Krupa Rao and Hanumantha Rao for their respective lands and the said canal ends at the land of Hanumantha Rao. There is a cement sluice in the said canal into the land of Krupa Rao. The lie of lands of Krupa Rao and Hanumantha Rao are same.

There is a vagu to the North of the land of the plaintiff which is lower in level than the land of plaintiff. There is a canal to the north of the lands of the defendants which flows into the vagu through the land of plaintiff on its north. There is no document to show that

X series canal exists in the middle of the land of defendants. It was suggested to PW2 that the plaintiff never used the X series canal as it was not in existence.

26.PW3/Murikipudi Krupa Rao, who has got Ac.1.00 of wet land on the southern side of defendants land testified on similar lines of PW2. During cross- examination, PW3 categorically admitted that there is a ridge of 2 feet in height in between the land of plaintiff and land of defendants and he has got land to the south of land of defendants and he is not drawing water through X Series canal since he has got different canal. There is a land of Marella Hanumantha Rao who is no other than son of the plaintiff, to the south of land of plaintiff. PW3 has categorically admitted that he is using water from N.S.P canal to his land and so also Hanumantha Rao and the said canal ends at the land of Hanumantha Rao. There is a cement sluice in the said canal into his land and lie of his land and land of Hanumantha Rao are same. Lands of plaintiff and his land are joint. There is a vagu to the north of the land of plaintiff, the level of land of plaintiff is higher than vagu There is a canal to the north of the defendants and it flows into vagu through the land of plaintiff on the north. He has no document to show that existence of X series canal in the middle of the land of the defendants. It was suggested to PW3 that X series canal never existed and plaintiff had never drawn water through X series canal to his lands.

Dt.31.07.2018 21 Common judgment

27. PW5/Karedla Anjaiah, who has got Ac.2.00 of wet land on the west of defendants land intervening Ac.10.00 of land deposed on similar lines of Pws.2 and 3.

During cross-examination, PW5 has categorically admitted that there is a bund of two feet height in between the land of plaintiff and land of defendants. There is a land of

Marella Hanumantha Rao who is no other than son of the plaintiff, to the south of land of plaintiff. PW5 has categorically admitted to the south of the lands of defendants, there is land of Janjam Seshagiri Rao, to his further south,there is a land of Aravapalli

Anjaneyulu, in between the lands of Seshagiri Rao and Anjaneyulu, there is NSP canal, the NSP canal flows into west of the land of Hanumantha Rao and joins the Vagu towards East. The lie of the land of plaintiff and his son/Hanumantha Rao are same.

There is a vagu to the north of the land of plaintiff, the level of land of plaintiff is higher than vagu at a height of 5 or 6 feet. All the lands to the south of the X series canal are higher in level. He has no document to show that existence of X series canal in the middle of the land of the defendants. There is a water in NSP canal every year and even now land owners in the locality have raised paddy. It was suggested to PW5 that

X series canal never existed and plaintiff had never drawn water through X series canal to his lands.

28.PW6/Rolla Rama Rao, who has got Ac.0.70 cents of land on the north east corner of the plaintiff’s land testified on similar lines of Pws.2, 3 and 5 in his chief examination affidavit. PW6 has categorically admitted that there is a bund of 2 feet in between the land of plaintiff and the land of defendants. He has got land to the north-east corner of the plaintiff’s land. He is drawing water from X series canal which is beyond his evidence affidavit. Since the date of purchase, the plaintiff has been cultivating the land by raising paddy. There is a land of Marella Hanumantha Rao who is no other than son of the plaintiff, to the south of land of plaintiff. PW6 has categorically admitted that to the south of the lands of defendants, there is land of Janjam Seshagiri

Rao, to his further south,there is a land of Aravapalli Anjaneyulu, in between the lands of

Seshagiri Rao and Anjaneyulu, there is NSP canal, the NSP canal flows into west of the land of Hanumantha Rao and joins the Vagu towards East. The lie of the land of

Dt.31.07.2018 22 Common judgment plaintiff and his son/Hanumantha Rao are same. To the north of land of plaintiff, there is a canal which flows into Vagu towards east. The land of plaintiff is higher in level than vagu. He has no document to show that existence of X series canal in the middle of the land of the defendants. There is a water in NSP canal every year and even now land owners in the locality have raised paddy. It was suggested to PW5 that X series canal never existed and plaintiff had never drawn water through X series canal to his lands.

29.PW7/K.Subbaravamma, the Advocate Commissioner testified that she gave notices to counsel for the plaintiff. Since the defendants 1 and 2 were not available, she could not serve notices to them. She inspected the suit locality on 15.10.1999 and she was appointed to note down the existence of X series Canal and she filed report under Ex.C1 and plan under Ex.C2. During cross-examination, PW7 categorically testified that he visited the house of defendants at Valaparla , since they were not available she could not service notices to them but she did not mention the same in her report. PW7 has categorically admitted that XX1X2 canal was newly laid as there was red earth on the bunds on either side. There were no standing crops either in

P or in B1 and B2, on the dated of her visit. PW7 has categorically admitted that except

XX1X2, the remaining bund at remaining X series appeared to be old and covered with grass. In plot P at “N” marked space, there was paddy seed bed. The lie of the plots is from south to north, plots in south are higher in level than plots in north. It was suggested to PW7 that she did not issue notice to defendants intentionally,she noted the observations as suggested by plaintiff to suit his case and filed accommodate report and plan to help the plaintiff.

30.PW8/K.Krishna Murthy, the then Deputy Tahsildar, Marturu testified that he was authorized by Tahsildar, Martur to produce file in Rc .B.No.617/1997 dated 4.9.1998 which is marked as Ex.X1 and carbon copy of proceedings are marked under

Ex.X2 and plan prepared by Village Revenue Officer attested by Mandal Revenue

Officer marked under Ex.X3 and xerox attested copy of combined sketch for S.No.149 village No.113 under Ex.X4 and the said sketch shows flow of water from S.No.149 to

Dt.31.07.2018 23 Common judgment

S.No.151 and from there towards Vagu on north, where it joins with it. During cross- examination, PW8 categorically testified that canal flowing in S.No.149 and 151 is not dug by N.S.P authorities. PW8 has categorically testified that canal was dug in the patta land and its existence was mentioned in the revenue records. PW8 has categorically admitted that order in Ex.X2 that the defendants were directed to restore the canal which was closed. The said canal flows across the land of the defendant on west and turns towards north and then towards east and joins the vagu. It was suggested to PW8 that the canal never existed in the land of defendants and orders in Ex.X2 were obtained by managing the then Mandal Revenue Officer by plaintiff.

31.On the other hand, the first defendant herein is examined as DW1 by filing his chief examination affidavit reiterating the contentions raised in the written statement and got marked Ex.B1 to Ex.B25. During cross examination, DW1 admitted that there are no disputes between him and plaintiff with regard to extent, boundaries and ridges and enjoying their respective plots peacefully. His plot is on the Western side while plot of plaintiff is on the Eastern side. The Advocate Commissioner in

I.A.No.1250/1999 in OS.No.343/1999 shown all the physical features of the suit locality which were brought to her notice at the time of her inspection. There is no drainage canal in between plot A and plot B as shown in the commissioner’s plan. The land of himself, plaintiff and other lands in the locality are wet lands. It was suggested to DW1 that there is a drainage canal in between TT1 and proceeded towards North abutting

Western ridge of plot D1 and he removed the drainage canal in between TT1 and erected a bund at point B as shown in the commissioner’s plot just before visit of commissioner. He is cultivating his land with the aid of bore water but same was not averred in his written statement. There is a poramboku land to the North of land of plaintiff. It was suggested to DW1 that he did not dispute the plan of the plaintiff since it is correct. It was suggested to DW1 that plaintiff made a representation to the revenue authorities when he damaged the X series canal about a year prior to the filing the suit.

The revenue authorities inspected the land and restored the canal by directing himself

Dt.31.07.2018 24 Common judgment and plaintiff to meet the expenses equally. It was suggested to DW1 that he was served with copy of order passed in Ex.X2. He does not have any disputes with other neighbouring land owners except with plaintiff and he also does not have any disputes with PW2, PW3, PW5 and PW6. Except putting suggestions to DW1 nothing could be elicited by the plaintiff to prove that the plaintiff was enjoying the water rights through X series field channel to his plaint schedule shown as ABCD.

32. DW2/Mandapati Veeraiah, the Southern land owner of the defendants land testified that defendants and his brother purchased dry land which is not a wet land and they converted the said land into wet land by taking murugu water released by the upper ayacutdars and the said murugu water entered into the land of defendant at X point of the plaint plan, from there, it turns towards North, goes along with Western ridge of defendant’s land to some extent, it turns towards East all along

Northern ridge of defendants land and ultimately at North-East corner of defendants land, joins into vagu situated on the East of defendants land and flow of said vagu is from South to North. He further testified that the said murugu canal is an old and ancient one which is of 2 ½ feet width having grass grown ridges of 1 ½ feet height on either side and the said canal is in the lands of defendants. There is no X series canal across the land of defendants enters into the land of plaintiff from the defendants land.

The plot P shown in plaint plan is higher level than plots B and B1 by nearly 1 ½ feet to some extent and bund of same height was put up by the plaintiffs. The owners of land situated to the lands of defendants and plaintiff never received any water from the X series canal.

33.He further testified that the source of water for the plaintiffs land is there is a land belonging to one Seshagirirao to the South of B1 plot, to the south of said

Seshagirirao there is a NSP canal runs from West to East, joins into vagu situated to the East of plot P and it is the source of water to the plaintiffs land. DW2 further testified that the plaintiff has been regularly raising paddy crop in his land with the water available in NSP authorized canal which pass through the land of his son towards South of plot P

Dt.31.07.2018 25 Common judgment of plaint plan. During cross examination, DW2 testified that the X series canal flows in the plaint plan does not touch his land, the said canal is to the North of land of defendant

No.1 and it flows towards East upto vagu. The X series canal is in existence since 30 years. The X series canal is in the middle of plot of defendant No.1 flows in between land of plaintiff and land of defendant No.1 along North diverts towards East. The land of

Janjam Seshagirirao is to the South of the land of 1st defendant. It was suggested to

DW2 that except X series canal, the plaintiff does not possess any other source of water supply to his land and plaintiff has no chance of getting water through the canal to the

South of Seshagirirao and his land is higher in level than the land of Seshagirirao.

34.The evidence affidavit of DW3 was eschewed on 1.2.2010. DW4/Mukiri

Subbaiah having Ac.2.00 cents of land towards South of defendants land testified on similar lines of DW2. During cross examination, DW4 categorically testified that the drainage canal is in the land of defendant No.1 flows towards West and then flows into vagu. It was suggested to DW4 that the said channel flows along the Western ridge of the plaintiffs land, then joins into the vagu. It was suggested to DW4 that 1st defendant and plaintiff used to draw water from murugu canal and they have no other source of water supply to their respective lands.

35.DW5/ Karpurapu Anjaiah, having Ac.2.00 cents of land towards West of defendants land and Ac.0.80 cents of land towards South of defendants land testified on similar lines of DW2 and DW4. During cross examination, DW5 categorically testified that the murugu canal flows upto the land of 1st defendant, then it flows along the

Northern ridge of 1st defendant and through the land of Rudrapudi Rangaiah and then into vagu. The said drainage canal is in existence even by the time of his birth and there are no changes in the flow of drainage canal since then. The 1st defendant laid bore and by using bore water, is cultivating his land. The 1st defendant converted his land into wet about 30 or 35 years back after laying bore. It was suggested to DW5 that both plaintiff and defendant No.1 are cultivating their respective land with the water of drainage canal only and there is no other source of water to their respective lands.

Dt.31.07.2018 26 Common judgment

36.DW6/M.Neeraja, the Advocate Commissioner testified that in pursuance of the directions of this court, she visited suit locality to note down the plaintiffs drawing murugu water fromXX1X2 old murugu canal into plot A and plot P of the plaint plan and to give the width and depth of said canal and also to note down the existence of grass grown ridge on either side of the said canal and to note that plots D and D2 are not receiving murugu water into those plots from XX1 canal through plot A. On 12.10.1999 she visited the suit schedule property but the defendants refused to take notice issued by her and she filed her report and plan under Ex.C3 and Ex.C4. As per her observation there is no X series canal for plot A and plot B. During cross examination, she testified that there was paddy transplantation just few days prior to her inspection in plots TT1 and they were covered with water. She did not mentioned the lie of land in between M,

S1 plots and D1 and D2. She categorically admitted that there is no connecting canal between X and F and by the time of her inspection paddy seed bed was in existence in plot D. It was suggested to DW6 that she did not thoroughly observe the plaint schedule property.

37.Coming to the documentary evidence, Ex.A1 to A5 are the pattadar pass book, title deed and cist receipts, since there is no dispute with regard to ABCD property purchased by the plaintiff and the said documents are not germane for the facts in issue.

Ex.C1 is the Commissioner report in O.S.No.358/1999 and Ex.C2 is the Commissioner’s plan.

38. On the other hand, among the documents filed by the defendant under

Ex.B1 to Ex.B25, Ex.B1 is the registered sale deed Dt.12.7.1982 under which they purchased plot B and B1 of the plaint plan. Since there is no dispute with regard to property, it is not relevant for the fact in issue. Ex.B2 and Ex.B3 are the cist receipts,

Ex.B4 and Ex.B7 are the pattadar pass book and title deed. Ex.B9 is the legal notice,

Ex.B10 to Ex.B13 are the acknowledgments, Ex.B14 is the returned notice, Ex.B15 is the certified copy of counter in I.A.No.1317/2001 in OS.No.358/99, Ex.B16 is the certified copy of order in I.A.No.1317/2001 in OS.No.358/99, Ex.B17 is the certified copy of objections filed in I.A.No.1317/2001 in OS.No.358/99, Ex.B18 is the copy of

Dt.31.07.2018 27 Common judgment report given to Sub-Inspector of Police, Martur along with four postal receipts, Ex.B19 to

Ex.B22 are the postal acknowledgments from Sub-Inspector of Police, Martur, Inspector of police, Inkollu, Ex.B23 are the proceedings in CRP.No.5561/2001 Dt.13.9.2002 of

Hon'ble High Court of AP, Hyderabad, Ex.B24 and Ex.B25 are four photographs with

negatives.

39. The learned counsel for the plaintiff in his written arguments contended that from the evidence of PW1, the plaintiff established that about the existence of X series field channel long prior to the suit coupled with the evidence of PW7 and PW8 and by relying on by Ex.X1 to Ex.X4. PW2, PW3, PW5 and PW6 categorically testified that plaintiff used to get water to his land through X series field channel which is located in the middle of defendants land right from the beginning and there is no other source of water to the plaintiff.

40.The learned counsel for the plaintiff further contended that DW1 during cross examination, categorically testified that there is no drainage canal in between plot A and plot B1 as shown in the commissioners report and he did not seek redirection of the commissioner. DW1 further testified that no body including himself is utilizing the water passing through the drainage canal and he is cultivating his land with the aid of bore water which is a contra to his pleadings. The learned counsel for the plaintiff further contended that DW1 categorically testified that he does not have any disputes with revenue authorities but he denied about the representations made by the plaintiff to the revenue authorities and with regard to enquires conducted by them.

41.He further contended that DW2 during cross examination, testified that his lands situated at a distance of one furlong from the land of plaintiff and to his knowledge the X series field channel is in existence since 30 years and X series canal is in the middle of plot of first defendant flows in between the land of plaintiff and the land of first defendant all along North then diverts towards East.

42.The learned counsel for the plaintiff further contended in his written arguments from the evidence of both sides coupled with the evidence of commissioner

Dt.31.07.2018 28 Common judgment it is crystal clear that X series field channel is an oldest one which is in existence long prior to purchase of land by the plaintiff and defendants and X series field channel is the only source to draw water to the land of plaintiff.

43.The learned counsel for the plaintiff further contended in his written arguments that from the evidence of plaintiff and defendants, the existence of X series field channel is ancient one and right from the excavation of NSP canal, plaintiff and defendants are utilizing the water through X series field channel for more than descriptive period by provocating their water rights, hence under section 15 of

Easement Act, the enjoyment of dominant owner through the land of serveant owner must be peaceful, open and without any interruption for a period of 20 years and plaintiff established his right and he further contended that adverse possession and easement need not be specifically pleaded in the plaint but the plaintiff specifically pleaded in his written statement in OS.No.343/1999, so the perfection of title by adverse possession and right easement are species of title. The dominant owner has no right to restrict the use of serveant tenement except to the extent that his right of easement is perfected.

In bolster of his contentions, he relied upon the following decisions :

(1) 1997 (1) ALT Pg 23 in between M.Harichandra Prasad Vs., Chitturi

Krishnamurthy and others

(2) AIR 1978 Kerala 50 in between Tharur Panchayath and others Vs.,

Kunchayi and another (3) AIR 1973 MP 143 in between Baboo Narayanlal Vs., Manoharlal

(4) 1984 (2) ALT 204 in between Karri Ramulu and others Vs., Niylaru

Adinarayana and others

44.The learned counsel for the plaintiff further contended that the defendant filed the suit by suppressing the facts and rushed to this court by suppressing the documents to get favourable order but the same cannot be permitted under law. In support of his contentions he relied upon a decision reported in 2007 (6 ) ALT 472 DB in

between Tirumala Tirupati Devasthanams rep. by Executive Officer, Tirupathi,

Chittoor District Vs., T.Venkata Padmavathamma and others.

Dt.31.07.2018 29 Common judgment

45.The learned counsel for the plaintiff further contended in his written arguments that when both the parties put forward their evidence and the documents, the burden of proof is in significance, the onus of proof will be changed from time to time for which he relied upon a decision reported in AIR 1960 Supreme Court 100 in between

Narayan Bhagwantrao Gosavi Balaji Vs., Gopal Vinayak Gosavi and others.

46.The learned counsel for the plaintiff further contended that the plaintiff discharged his burden and established that there is X series field channel and he is drawing water to his land through the said canal and there is no other source to draw water, then defendants have to establish that there is no existence of canal across his land but the defendants failed to place cogent evidence contra to commissioner report and X series documents. In support of his contentions, he relied upon a decision reported in 2003 (4) ALT 383 in between T.Seshareddy and others Vs., Managing

Committee, Jame Masjid and others.

47.The learned counsel for the plaintiff in his written arguments further contended that though the relief of mandatory injunction is harshest in nature it can be granted on the ground of equity. Initially the plaintiff filed the suit for permanent injunction, subsequently defendant damaged existence of X series field channel by violating the order of this court. Even without seeking the specific relief of mandatory injunction he is entitled to claim the same under law. In support of his contentions, he relied on the following decisions :

1) In between Ronda Narapareddy and others Vs., Ronda Suryanarayana Reddy reported in 2004 (2) L.S. 521

2) in between Palliboyina Bulliyya and others Vs., Dadi Peda Veeraju (died) and others reported in 1993 (1) ALT 692

48.On the contrary, the learned counsel for the defendants in his written arguments contended that the defendants categorically denied the proceedings

Dt.31.07.2018 30 Common judgment prepared by Mandal Revenue Officer, Martur under Ex.X1 to Ex.X4 and they never attended before Mandal Revenue Officer, Martur and they never admitted that they restored field channel as per the proceedings of Mandal Revenue Officer Dt.4.9.1998.

The plaintiff got examined Deputy Tahsildar as PW8 and got marked Ex.X1 to Ex.X4 through him. But PW8 categorically testified that he has no personal knowledge about the proceedings under Ex.X1 to Ex.X4, in such case, it is the duty of the plaintiff to examine the persons attached to Ex.X1 to Ex.X4 to prove that the said documents are prepared in the presence of defendants 1 and 2 with their consent and knowledge but the plaintiff failed to examine those persons to prove the contents in Ex.X1 to Ex.X4.

Unless and until the plaintiff proved that Ex.X1 to Ex.X4 were prepared with the consent and knowledge defendants 1 and 2, the documents are not binding on them. In support of his contentions, he relied on a decision reported in 2002 (3) ALT 754 in between

Ramnivas Gupta and others Vs., Maliram.

49.The learned counsel for the defendants contended that plaintiff failed to prove Ex.X1 to Ex.X4, hence they cannot be taken into consideration by the court. The next contention raised by the learned counsel for the defendants that the plaintiff got marked Ex.X4, the combined sketch of survey No.149 and 151 but the plaintiff failed to file entire village map of Isukadarsi. As per the village map, the dotted lines shown in the survey No.s. 149 to 151 are specified as cart tract and not the field channel. Plaintiff taking advantage of dotted lines from survey numbers 149 to 151 stated that the X series murugu canal flows from 149 to 151 as per Ex.X4. In fact, there is no canal in existence from survey No.149 to 151. The plaintiff played fraud on the court in collusion with revenue authorities with a view to get a new right of taking water through the X series canal in the lands of defendants without any right or authority.

50. The next contention raised by the learned counsel for the defendants in his written arguments, the commissioner who is examined as DW6 observed that there is no existing murugu canal through the lands of defendants which enter into the land of plaintiff. The commissioner also observed another canal which is in existence to the

Dt.31.07.2018 31 Common judgment land of Seshagirirao and water entered into S1 plot from CC1 murugu canal through a small canal marked as SE and lastly the said water entered into VV1 marked vagu and a small canal as situated beside the said dibba through plot D marked as GH in the plan of commissioner. The observation made by the learned commissioner in

OS.No.343/1999 clearly mentioned that X series field channel is an old murugu canal

of 3 feet width and 3 feet depth with grass grown bunds.

51. The next contention raised by the learned counsel for the defendant that the commissioner in OS.No.358/1999 visited the suit land without giving notice to the defendants and inspected the suit land in their absence. The plaintiff intentionally not show the existing authorized NSP canal to the commissioner which flows through the land of Janjam Seshagirirao, Kruparao and Hanumanthurao who is son of plaintiff with a view to show that except X series canal there is no other canal for drawing water to his land.

52.The next contention raised by the learned counsel for defendants in his written arguments that the report of the commission in OS.No.358/1999 clearly indicates about the X series of murugu canal at points XX1X2 a new red mud was laid by the plaintiff just before her visit without knowledge and consent of the defendants.

53.The next contention raised by the learned counsel for the defendants that during cross examination, PW1 categorically admitted that the lands to the South of his land are at a height of 2 feet from his land and the lie is from South to North. PW2,

PW3, PW5 and PW6 in their cross examination categorically testified that the land of plaintiff and his son are joint. In view of categoric admission made by PW.s 1,2,3,5 and 6, the lands on the Southern side of plaintiff land i.e., Plot P are higher in level and land of plaintiff and his son are one and the same. The plaintiff is receiving water to his land through the land of his son through an authorized NSP canal situated to the East of land of Janjam Seshagirirao which flows to the lands of Kruparao and plaintiff’s son, ultimately reached the plaintiff’s land, it joins into the vagu situated to the East of the plaintiff’s land.

Dt.31.07.2018 32 Common judgment

54. The next contention raised by the learned counsel for the defendants that

PW1 categorically admitted that there are authorized channels to draw NSP water to his land. During 2001-2002, he raised crops with the water in the NSP canal. Pws.2 and 3 have categorically testified during cross-examination on 17.12.2008 that sine two or three years,the plaintiff is not raising paddy in his land that means till 2005 the plaintiff raised paddy crop in his land and contra to their evidence PW5 during cross- examination on 29.1.2009 testified that since six or seven years the plaintiff was not raising any crops in his land that means the plaintiff raised crops till 2003.

55. The learned counsel for the defendants further contended that from the evidence of Pws.1 to 3, 5 and 6, it is made clear that even in the absence of X series murugu canal, plaintiff raised paddy crops in his land through another source, hence the plaintiffs are not entitled to take aid under Easement Act for easement of necessity. The plaintiff failed to satisfy the ingredients under Section 18 of the Easement Act and even as per revenue records, there is no existence of X series canal and it is not an authorized canal.

56.The learned counsel for the defendants strongly contended that since the plaintiff is claiming water right through X series canal as right by way of prescription under Section 15 of the Indian Easement Act, as per Section 25 of the Act, plaintiff has to prove by cogent evidence that he used the X series murugu canal for a period of 20 years continuously on the date of fling the suit and plaintiff also failed to file revenue records to prove the same. Plaintiffs purchased plot ‘P’ of the plaint plan which is shown as ‘ABCD’ about 5 years back prior to giving evidence on 5.9.2008, from his own evidence as PW1 that he never used X series Murugu canal continuously for a period of 20 years. Plaintiff wantonly not filed sale deed before this court to prove his case that prior to his purchase, his vendors used X series Murugu canal and the said right was conveyed from his vendor. Further contended that mere existence of an easement is not enough and it requires to be established that the said easement is still subsisting and under use and enjoyment. The necessity contemplated under Section

Dt.31.07.2018 33 Common judgment 13(a) of the Indian Easements Act is absolute necessity which cannot be deprived without recording a finding on the basis of evidence on record. Further contended that under Section 39 of the Specific Relief Act, the burden of proof is on the plaintiff to prove his own, failure of defendants to prove their case,does not entitle the plaintiff for a decree of mandatory injunction. Further contended that the Advocate commissioner is only to note the existing physical features of the locality for which he was appointed and the Commissioner cannot decide the rights of the parties indispute. In support of his contentions, he placed reliance on the following decisions:-

(1) in between Janab Mohammed Ayub Vs., Janab Mohaboob Shariff and

another reported in 2004 (1) A.P.L.J. 95;

(2) In between Akula Bhagiraraju and others Vs., Padala Satyanarayana and

others reported in 2007 (2) ALD 323;

(3) In between U.L.Narasimham Vs., G.Venkatesa Rao reported in 2002 (1) L.S.

268 ;

(4) In between B.Ramulamma Vs., M/s.Venkatesh Bus Union and another

reported in 2009(3) Law Summary 173(DB);

(5) In between Landmark Developers, Hanmakonda, Warangal District Vs.,

State of Andhra Pradesh and others reported in 2013 (1) ALD 338 ;

(6) In between Kambhampati Srihari Vs., Nallamalli Kanchivaradarajam and

others reported in1998 (1) Law Summary AP 77;

(7) In between Justiniano Antao and others Vs., Smt Bernadette B.Pereira

reported in AIR 2005 Supreme Court 236;

(8) In between Sankar Kumar and another Vs., Mohanlal Sharma reported in

AIR 1998 Orissa 117 ;

(9) In between M.Govindarajulu Vs., Smt Bhushanamma reported in 2000 (2)

ALT 71;

(10) In between Bongu Ramulu and another Vs., Gudur Narender Reddy

reported in 1998 (1) L.S. AP 829 ;

Dt.31.07.2018 34 Common judgment

(11) In between Pedda Seetharamappa and others Vs., Pedda Appaiah reported

in AIR 1962 Andhra Pradesh 84 ;

(12) In between Chaitan Das Vs., Smt Purnabasi Pettnayak and others reported

in AIR 1988 Orissa 52 ;

57.The next contention raised by the learned counsel for the defendants that plaintiff must show that the defendants invades or threats to invade the plaintiffs right or enjoyment under Section 38 of the Specific Relief Act. But the plaintiffs failed to prove they had been receiving water through X series canal across the land of defendants to their land for raising wet crops. On the other hand, the defendants amply proved that plaintiffs have been drawing water to the land through authorized NSP canal situated on the south of the plaintiff’s land adjoining land of his son Hanumantha Rao and since there is a bund in between plots of plaintiffs and defendants, no water flows from the lands of defendants to the land of plaintiff and same was categorically admitted by Pws.1 to 3, 5 and 6.

58.The next contention raised by the learned counsel for the defendants that evidence let in by plaintiff is contradicting with each other and there is no iota of evidence is placed by the plaintiff that he has got right of enjoyment in drawing water from X series canal and same was obstructed by the defendants. On the other hand, the defendants amply proved that there is no ‘X’ series canal across their land and PW1 also categorically admitted that defendants purchased property as single plot does not disclose X series canal existing across their land. The plaintiffs have no personal right through X series canal at any point of time and for grant of equitable relief of injunction, the plaintiff must have personal interest in the matter. In support of his contention he placed reliance on the following decisions:

(1) In between Premji Ratansey Shah and others Vs., Union of India and others

reported in 1994 (3) ALT 25 SC;

Dt.31.07.2018 35 Common judgment

(2) In between M/s.Seemax construction Private Limited Vs., State Bank of

India and another reported in AIR 1992 Delhi 197 ;

(3) In between Kachana Padmavathi and another Vs., Proddatur Municipality,

Proddatur and others reported in 2007 (3) ALD 614 ;

(4) In between Surisetty Tulasi Venkata Nagabhushana Rao Vs., Visakhapatnam

Municipal Corporation, Visakhapatnam and another reported in 2013 (5)

ALD 547;

(5) In between Samala Tirupathayya and others Vs., Bandaru Baburao (died)

and others reported in 2012 (5) ALD 603.

59.The learned counsel for the defendants further contended that the plaintiff is not entitled to seek the relief of mandatory injunction against the defendants without the relief of declaration of his right over X series canal. Unless a declaration as to the illegality of the action was claimed, the possibility of granting mandatory injunction and consequential relief of perpetual injunction does not exist In support of his contention he placed reliance on following decisions:-

(1) in between Kannaiah Mandadi (died) and another Vs., Residents of

Gollapalem, Kanipakam, Chittoor District reported in 2014 (1) ALD 66;

(2) In between Kachana Padmavathi and another Vs., Proddatur Municipality

rep. by the Commissioner and others reported in 2007 (4) ALD 58;

(3) In between Surisetty Tulasi Venkata Nagabhushana Rao Vs., Visakhapatnam

Municipal Corporation, Visakhapatnam and another reported in 2013 (5)

ALD 547;

(4) In between Samala Tirupathayya and others Vs., Bandaru Baburao (died)

and others reported in 2012 (5) ALD 603.

(5) In between Kachana Padmavathi and another Vs., Proddatur Municipality,

Proddatur and others reported in 2007 (3) ALD 614 ;

Dt.31.07.2018 36 Common judgment

60. ISSUE No.1 in O.S.No.343/1999:-

It is the case of the plaintiffs that the defendants without any manner of right are trying to interfere with the possession and enjoyment of the plaintiffs in the plaint plan property and also Murugu canal shown as XX1X2 of Plot A of the plaint plan.

61. On the contrary, it is the contention of the defendants they have been drawing water through X series murugu canal across the lands of plaintiffs i.e.

defendants in O.S.No.358/1999 for raising paddy crops from the date of their pur;chase and exercising their right of drawing water over a statutory period. There is no dispute that Plot-A of the plaint plan belonged to the plaintiffs.

62.So far as Issue No.1 in O.S.No.72/2002 is concerned:- It is the case of the plaintiff that due to obstruction made by the defendants with regard to X series

Murugu canal, he failed in raising paddy crop in his land for the year 2001-2002, thus the plaintiff had sustained damage of Rs.40,000/-. On the other hand, it is the plea of the defendants that there is no existing X series canal across their land to draw water by the plaintiff to his land and plaintiff is not entitled for damages against them.

63. Coming to Ex.X1 which is file pertaining to Rc.B.No.617/1997

dated 4.9.1998. In the said file, it is evident that the then Mandal Revenue Officer,

Martur addressed a letter to the District Collector, Ongole in Rc.B.No.617/1997 dated 15.4.1998 wherein it is referred that one Sri Marella Anjaneyulu i.e. plaintiff herein filed a petition to the District Collector , Ongole requesting that he has land in S.No.151/3

Ac.5.00 which is being raised paddy crop since 1984 and this year one Tanneeru

Papaiah i.e. deceased 1 st plaintiff in O.S.No.358/1999, whose lands are adjacent to the said Anjaneyulu obstructed the water flowing in the field land and requested to give water. The said petition has been endorsed to the Mandal Revenue Offier, Martur to inspect the spot and sort out the problem. There is a drainage channel connected with irrigation channel at the upsteam in the western side of both S.Nos which is channalised

Dt.31.07.2018 37 Common judgment according to the convenience of the adjacent ryots and not included in the plan. At present there is a field channel in the north-east direction of the S.No.149/2 and it merges in the vagu poramboke. The said petitioner i.e. Marella Anjaneyulu contention is that if the land owner of S.No.149/2 gives permission to arrange flow of water for irrigation of his fields, which will form a straight channel to the already existed field channel on the west. Both parties have been informed to give up 23 links of their patta land for formation of field channels on the east and west and to the existed field channel and which merges at the starting of the vagu poramboke in the north-southern end. Both parties have been agreed to relinquish the 23 links of their patta land to convert the same as poramboke keeping in view of the future litigation”.

64.From the recitals of letter addressed by the then Mandal Revenue

Officer, Martur to the District Collector, Ongole under Ex.X1 file, it is made clear that there is a drainage channel on the western side of plot-A of plaint plan in

O.S.No.343/1999 i.e. on the western side of land of the plaintiff therein and it is not

included in the plan which falsifies Ex.X4 and supports the contention of the learned counsel for the defendants that the plaintiff failed to file entire village map of Isukadarsi and as per the village map, the dotted lines shown in the survey No.s. 149 to 151 are specified as cart tract and not the field channel and plaintiff taking advantage of dotted lines from survey numbers 149 to 151 stated that the X series murugu canal flows from 149 to 151 as per Ex.X4. PW8/Deputy Tahsildar also categorically admitted that he did not inspect the suit locality till the date of giving evidence. In such a case, how PW8 testified during cross-examination that the said channel was available by the date of passing orders in Ex.X2. There is no whisper from the recitals of Ex.X2 which is the carbon copy of proceedings issued by the then Mandal Revenue Officer, Martur dated 4.9.1998, the defendants were directed to restore the canal which was closed.

65. Coming to the evidence on record, PW1 during cross-examination categorically admitted that there was water in NSP canal in the year 2001-2002 and he

Dt.31.07.2018 38 Common judgment raised crops in his land. PW1 has categorically admitted that there are authorized channels to draw NSP water to his land. During 2001-2002, he raised crops with the water in the NSP canal. Pws.2 and 3 have categorically testified during cross- examination on 17.12.2008 that sine two or three years,the plaintiff is not raising paddy in his land that means till 2005 the plaintiff raised paddy crop in his land and contra to their evidence PW5 during cross-examination on 29.1.2009 testified that since six or seven years the plaintiff was not raising any crops in his land that means the plaintiff raised crops till 2003. Pws.2 to 3, 5 and 6 have deposed in one voice that they have not seen the defendants destroying the canal. Though PW1 during cross-examination has categorically testified that since 1999 he did not raise any crops in his land and land was kept fallow since then and he can produce documents to that effect. But there is no iota of document is placed before this court to prove that the plaintiff did not raise any crops in his land since 1999. In the next breath during cross-examination on 24.10.2008, PW1 has categorically admitted that there was water in the NSP canals in 2001-2002 in which year he raised crop and there is a government canal through the drainage canal claimed by him. PW1 pleaded his ignorance about any records available with NSP authorities. PW1 has categorically admitted that his son Hanumantha Rao has been raising crops in his land since 1999 and even prior to it.

66. PW3 during cross-examination on 17.12.2008, categorically admitted that plaintiff had raised paddy ever since he had purchased his land and lands of plaintiff and his son are joint and son of plaintiff by name Hanumantha Rao is using NSP canal for drawing water to his land and there is a vagu to the north of the land of plaintiff.

There is a canal to the north of the defendants and it flows into the vagu through the land of the plaintiff on the north. PW3 has categorically testified that he did not see the defendants destructing X series canal. Moreover, PW8/Deputy Tahsildar testified that X series murugu water flows at point X, turns to north all along western ridge of the defendants, then turns towards east all along northern ridge of the plaintiff, then at the north-east corner it joints into Vagu.

Dt.31.07.2018 39 Common judgment

67.In view of my foregoing discussion and on a careful scrutiny of the evidence of Pws.1 to 3, 5 to 8, categoric admissions made by plaintiff and witnesses examined on his behalf, coupled with documents filed on both sides and decisions cited supra by both sides in their written arguments, this court is of the considered opinion that the plaintiff failed to place any iota of evidence to prove that the plaintiff has been exercising right of drawing water through X series canal across the lands of the defendants shown as BB1 of the plaint plan and in the month of September, 1997 the defendants destroyed the said channel and consequently the plaintiff was unable to raise paddy crops in his land for the year 2001-2002, thereby he sustained damages to a tune of Rs.40,000/-. Absolutely there is no evidence on record to prove the case of the plaintiff. On the other hand, the defendants who are plaintiffs in O.S.No.343/1999 have clinchingly proved their case by cogent and convincing evidence that they have been enjoying plot A of plaint plan by taking water from murugu channel XX1X2 and hence the defendants in O.S.No.358/1999 i.e. plaintiffs in O.S.No.343/1999 are entitled for the equitable relief of permanent injunction restraining the plaintiffs from in any manner interfering with peaceful possession and enjoyment of plot A. All the above issues are answered accordingly.

OS.No.343/1999

68. IN THE RESULT, suit is decreed with costs by granting permanent injunction restraining the defendants, their men and agents from in any manner interfering with peaceful possession and enjoyment of the plaintiffs plot ‘A’ by defendants taking water of murugu canal XX1X2 to their plots D1 and D2 through plot ‘A’ by destroying of ridges of XX1 or Eastern ridge of plot ‘A’.

OS.No.358/1999

69. IN THE RESULT, the suit is Dismissed with costs.

Dt.31.07.2018 40 Common judgment

OS.No.72/2002

70. IN THE RESULT, the suit is dismissed with costs.

Typed to my dictation by the Stenographer Grade III, corrected and

pronounced by me in open court this the 31st day of July, 2018.

Prl. Junior Civil Judge, Addanki.

// APPENDIX OF EVIDENCE //

Witnesses Examined

For Plaintiff PW1 : Marella Anjaneyulu @ Anjaiah PW2 : Uppala Srinivasarao PW3 : Murikipudi Kruparao PW4 : K.Seshaiah (eschewed) PW5 : Karedla Anjaiah PW6 : Rolla Ramarao PW7 : K.Subbaravamma PW8 : K.Krishnamurthy

For Defendants DW1 : Tanneru Papaiah DW2 : Mandapati Veeraiah DW3 : M.Yesudasu (eschewed) DW4 : M.Subbaiah DW5 : Karpurapu Anjaiah DW6 : M.Neeraja

Documents Marked

For Plaintiff Ex.A1 : Pattadar pass book Ex.A2 : Title deed Ex.A3 : Cist receipt Dt.21.2.1990 Ex.A4 : Cist receipt Dt.27.3.1992 Ex.A5 : Cist receipt Dt.9.5.1997

Through PW7 Ex.C1 : Commissioner’s report Ex.C2 : Commissioner’s plan

For Defendants Ex.B1 : Registered sale deed Dt.12.7.1982 Ex.B2 : Cist receipt Dt.12.9.2000 Ex.B3 : Cist receipt Dt.12.9.2000

Dt.31.07.2018 41 Common judgment

Ex.B4 : Pattadar pass book Ex.B5 : Title deed Ex.B6 : Pattadar pass book Ex.B7 : Title deed Ex.B8 : CC of Commissioner’s report and plan in I.A.No.1250/99 in OS.343/99 Ex.B9 : CC of legal notice Dt.6.7.2000 and five postal receipts Ex.B10 : Postal acknowledgment Ex.B11 : Postal acknowledgment Ex.B12 : Postal acknowledgment Ex.B13 : Postal acknowledgment Ex.B14 : Returned unserved legal notice Ex.B15 : CC of counter in I.A.No.1370/2001 in OS.358/98 Ex.B16 : CC of order Dt.7.12.2001 passed in I.A.1370/2001 in OS.358/99 Ex.B17 : CC of objections filed in I.A.1370/01 in OS.358/99 Ex.B18 : Copy of report to Sub-Inspector of Police, Martur Ex.B19 : Postal acknowledgment Ex.B20 : Postal acknowledgment Ex.B21 : Postal acknowledgment Ex.B22 : Postal acknowledgment Ex.B23 : Proceedings in C.R.P.No.5568/01 Dt.13.9.2002 issued by Hon'ble High Court of A.P, Hyderabad. Ex.B24 : Four photographs in I.A.1370/01 Ex.B25 : Negatives of said photographs

Through DW6 Ex.C3 : Commissioner’s report Ex.C4 : Commissioner’s plan

Through PW8 Ex.X1 : File pertaining to R.C.B.No.617/97, Dt.4.9.1998 Ex.X2 : Carbon copy of proceedings of MRO, Martur Ex.X3 : Plan prepared by VAO which is attested by MRO, Dt.14.4.1998 Ex.X4 : Crossed attested copy of combined sketch for S.No.149 village No.113.

Prl. Junior Civil Judge Addanki

Dt.31.07.2018 1 Common judgment

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, ADDANKI

Dated this the 31 st day of July, 2018.

Present : SRI KALIVE SURESH BABU Prl.Junior Civil Judge, Addanki

Original Suit No.343 of 1999

1. Tanneeru Papaiah (died)

2. Tanneeru Ramaiah, S/o.Veeraiah, 60 years,

3. Tanneeru Audinarayana, S/o.late Papaiah, 56 years

4. Tanneeru Venkateswarlu, S/o.late Papaiah, 54 years

5. Tanneeru Ramanjaneyulu, S/o.late Papaiah, 52 years

6. Tanneeru Ravi Kumar, S/o.late Pichaiah, 40 years defendants 2 to 6 are Hindus, cultivation, R/o.Valaparla village, Martur Mandal,

7. Kunchala Subbaramulu @ Subbaravamma, W/o.late Ramanjaneyulu, 49 years, Thathapudi village, Chilakaluripeta, Guntur District.

8. Gungi Gangamma, W/o.Ramanjaneyulu, 45 years, Hindu, cultivation, R/o.Makkenavaripalem village, Santhamaguluru Mandal.

9. Thanneeru Anil, S/o.late Ramanjaneyulu, 24 years 10.Thanneeru Umamaheswara Rao, S/o.late Ramanjaneyulu, 21 years 11.Thanneeru Mallikarjuna Rao, S/o.late Ramanjaneyulu, 20 years 12.Thanneeru Achamma, W/o.late Ramanjaneyulu, 50 years defendants 9 to 12 are Hindus, R/o.Valaparla village, Martur Manda.

Plaintiffs 3 to 8 are legal representatives of deceased 1 st plaintiff amended

as per orders in I.A.487/12 Dt.16.8.2013

Plaintiffs 9 to 12 are L.Rs of deceased 5 th plaintiff, amended as per orders

in I.A.692/17 Dt.1.9.2017. … Plaintiffs

Vs.

1. Marella Anjaneyulu, S/o.Kotaiah, 70 years

2. Marella Hanumantha Rao, S/o.Anjaneyulu, 45 years

3. Marella Kotaiah, S/o.Anjaneyulu, 35 years. All are Hindus, cultivation, R/o.Darsi village and Mandal, Prakasam District. … Defendants

Original Suit No.358 of 1999

Marella Anjaneyulu @ Anjayya, S/o.Kotaiah, 55 years, Hindu, cultivation, R/o.Darsi Agraharam, Martur Mandal. … Plaintiff

Vs.,

1. Tanneeru Papaiah (died)

2. Tanneeru Ramaiah, S/o.Veeraiah, 58 years,

3. Tanneeru Audinarayana, S/o.late Pichaiah, 42 years

4. Tanneeru Venkateswarlu, S/o.late Pichaiah, 40 years

5. Tanneeru Ravi Kumar, S/o.late Pichaiah, 38 years

6. Tanneeru Ramanjaneyulu, S/o.late Pichaiah, 30 years defendants 2 to 6 are Hindus, cultivation, R/o.Valaparla village, Martur Mandal,

Dt.31.07.2018 2 Common judgment

7. Kunchala Subbaramulu @ Subbaravamma, W/o.China Anjaiah, 34 years, Hindu, Housewife, Thathapudi village, Guntur District, Chilakaluripeta.

8. Gungi Gangamma, W/o.Anjaiah, 36 years, Hindu, Housewife, Makkenavaripalem village, Santhamagulur Mandal.

9. Thanneeru Anil, S/o.late Ramanjaneyulu, 24 years 10.Thanneeru Umamaheswara Rao, S/o.late Ramanjaneyulu, 21 years 11.Thanneeru Mallikarjuna Rao, S/o.late Ramanjaneyulu, 20 years 12.Thanneeru Achamma, W/o.late Ramanjaneyulu, 50 years defendants 9 to 12 are Hindus, R/o.Valaparla village, Martur Manda.

Defendants 3 to 8 are legal representatives of deceased 1 st defendant

amended as per orders in I.A.661/12 Dt.16.8.2013

Defendants 9 to 12 are L.Rs of deceased 6 th defendant, amended as per

orders in I.A.693/17 Dt.1.9.2017. … Defendants

Original Suit No.72 of 2002

Marella Anjaneyulu @ Anjayya, S/o.Kotaiah, 57 years, Hindu, cultivation, R/o.Darsi Agraharam, Martur Mandal. … Plaintiff

Vs.,

1. Tanneeru Papaiah (died)

2. Tanneeru Ramaiah, S/o.Veeraiah, 58 years,

3. Tanneeru Audinarayana, S/o.late Pichaiah, 42 years

4. Tanneeru Venkateswarlu, S/o.late Pichaiah, 40 years

5. Tanneeru Ravi Kumar, S/o.late Pichaiah, 38 years

6. Tanneeru Ramanjaneyulu, S/o.late Pichaiah, 30 years defendants 2 to 6 are Hindus, cultivation, R/o.Valaparla village, Martur Mandal,

7. Kunchala Subbaramulu @ Subbaravamma, W/o.China Anjaiah, 34 years, Hindu, Housewifr, Thathapudi village, Guntur District, Chilakaluripeta.

8. Gungi Gangamma, W/o.Anjaiah, 35 years, Hindu, Housewife, Makkenavaripalem village, Santhamagulur Mandal.

9. Thanneeru Anil, S/o.late Ramanjaneyulu, 24 years 10.Thanneeru Umamaheswara Rao, S/o.late Ramanjaneyulu, 21 years 11.Thanneeru Mallikarjuna Rao, S/o.late Ramanjaneyulu, 20 years 12.Thanneeru Achamma, W/o.late Ramanjaneyulu, 50 years defendants 9 to 12 are Hindus, R/o.Valaparla village, Martur Manda.

Defendants 3 to 8 are legal representatives of deceased 1 st defendant

amended as per orders in I.A.672/12 Dt.16.8.2013

Defendants 9 to 12 are L.Rs of deceased 6 th defendant, amended as per

orders in I.A.693/17 Dt.1.9.2017. … Defendants

These three suits are coming on 9.7.2018 before me for final hearing in the presence of Sri P.Ramesh, Advocate for plaintiff in O.S.No.343/1999 and defendants in

O.S.No.358/1999 and O.S.No.72/2002 and of Sri A.Nagarjuna Rao-Advocate for the

Dt.31.07.2018 3 Common judgment plaintiff in O.S.No.358/1999 and O.S.No.72/2002 and defendants in O.S.No.343/1999 ; upon perusing the oral and documentary evidence on record and upon hearing the arguments on both sides, and having stood over for consideration till this day, this Court delivered the following :- // C O M M O N J U D G E M E N T //

Original Suit No.343 of 1999

This suit is filed for permanent injunction restraining the defendants and their men from in any manner interfering with peaceful possession and enjoyment of the plaintiff in respect of plot A by the defendants taking water of Murugu canal X, X1, X2 to their plots D1 and D2 through plot A by destroying the ridges of X, X1 or Eastern ridges of plot A and for costs.

02. The brief averments of the neat copy of amended Plaint filed on 8.9.2017 are as follows:

The plaintiffs 1 and 2 are the brothers. The first defendant is the father of defendants 2 and 3. The first defendant is the owner of plot D1 and second defendant is the owner of plot D2 of the plaint plan. Plot A of the plaint plan was absolute property of Chekuru Krishnamurthy and his two sons Vamsi Krishna and Krishna chaitanya of Guntur. Plaintiffs 1 and 2 have purchased the said property under a

Registered sale deed Dt.12.7.1982 for Rs.7,000/- and possession was delivered. Since then, the plaintiffs 1 and 2 have been in possession and enjoyment of the Plaint schedule property and enjoying the same with absolute rights. Pattadar pass book was given by the government and they have been paying taxes to the government. A few years back plaintiffs 1 and 2 converted the land purchased by them into wet land and cultivating the same as wet land by taking Murugu water released by the

Ayacutdars. The bunds on all the four sides of plot A and X, X1, X2 belong to the plaintiffs 1 and 2. This year also they cultivated ‘plot A’ and made it ready for transplantation.

Dt.31.07.2018 4 Common judgment ii) It is further averred that X, X1, X2 Murugu canal as shown in the plaint plan is an old and ancient one which is about 2 ½ feet in width having grass grown ridges of 1 foot in width and 1 ½ feet in height on either side of it and the said canal is in plaintiffs land, it joins Vagu shown as V V1 at North-East corner of plot P. The defendants have no right, title or possession either in plot A or P or Murugu canal shown as X, X1, X2. The Plot S is in an extent of Ac.10.00 cents and the same was kept beedu and belonged to Mombanti Venkateswarlu and the same was purchased by

Janjanam Seshagiri Rao and he brought the same under cultivation. Plot S1 belong to

Sundara Rao, ‘Plot M’ belong to Krupa Rao, Plot D2 belong to 2nd defendant and plot

D1 belong to joint family of D1 and his sons. Plot P1 is poramboku land and plot P belong to plaintiff. Owner of plots S, S1, M, D2 and D1 never received any Murugu water to their lands from X, X1, X2 canal. There is a Murugu canal shown as ‘C C1’ to the North of plots ‘S and S1’ and the said Murugu canal joins the Vagu marked as V

V1 running from South to North on the Eastern side of plots S1, M, D2, D1, P1 and P.

The defendants are powerful persons and the plaintiffs belong to different village i.e.,

Valaparla, on account of village fractions and enmity, the defendants are giving out that they will destroy the ridges of Murugu canal X, X1, X2 to the East of X, X1 and take

Murugu water from it through the plaintiffs plot A to their fields D1 and D2. If they are allowed to do so, the plaintiffs will be put to irreparable loss and injury, hence the suit.

03. First defendant filed his written statement and the same was adopted by defendants 2 and 3. The first defendant refuting entire allegations of the plaintiff in the plaint and further contended that the plan filed along with plaint is not correct and there is a continuing canal to draw water to the lands of the defendants across ‘A’ of the plaint plan. There is no other source to draw water to the lands of defendants. For the last 20 years these defendants are utilizing the water source through the canal which is in existence across ‘A’ marked land shown in the plaint plan. Even prior to filing the suit, when the plaintiffs intending to cause obstruction to their field channel, the matter was referred to Mandal Revenue Officer, Martur, the then Mandal Revenue Officer also

Dt.31.07.2018 5 Common judgment passed orders to continue the canal as usual in RC.No.B6/7/97 Dt.4.9.1998. In pursuance of the orders, the field channel was restored by the respective parties. The plaintiffs in order to close the canal across their lands approached the court by suppressing the real facts. Right from the beginning, across ‘A’ marked portion 2 inches width of the field canal is in existence to draw water to the lands of defendants connecting drain canal partly as shown in the plaint plan.

ii) The defendants filed suit in OS.No.358/99 on the file of this court with true and correct plan and got appointed Advocate Commissioner to show the existing physical features. These defendants have perfected X-series field canal across ‘A’ marked plan by way of customary easement. The plaintiffs are not entitle to interfere with the water rights of defendants and on the date of filing the suit the paddy seed bed was in existence in the land of these defendants. The said field canal diverts in between the plots A and D1 towards North to some extents and it further diverts to East through point P1 of the plaint plan and joins into vagu situated on the eastern side.

Through the said canal only the defendants have to draw water to their lands by arranging sluice from the canal situated in between plots A and B1. The Advocate

Commissioner also observed the existence of old ridge canal in between plot A and D1.

In the midst of plot A there is a continuation canal in order to draw water by the defendants. At the time of filing suit, in order to give colour of reality, the plaintiffs have not shown the entire canal either in between plot ‘A’ or in between ‘A’ and D1 shown in the plaint plan, filed false suit and got appointed Advocate Commissioner. The plaintiffs have not shown the existence of canal to the commissioner and the commissioner mentioned width of 15 feet and 2 feet depth of grass grown old canal in between plot ‘A’ and D1. As the lands are wet lands already season was started by the date of filing suit, plaintiffs and defendants made necessary repairs to their lands. In that connection on the date of inspection of commissioner the field canal some extent was removed by the plaintiffs in the middle of plot ‘A’ and after his inspection same was replaced. Even prior to filing the suit by the plaintiffs, the defendants already

Dt.31.07.2018 6 Common judgment arranged paddy seed bed in their land through the water from the canal which was located in the middle of plot ‘A’ and in between plot ‘A’ and D1.

iii) The plot M1 and S1 shown in the plaint plan are lower in level than D1 and D2. The plot D2 shown in the plaint plan is a Dibba which is at height of more than three feet. These defendants have no knowledge about the suit filed by him by the date of filing suit against the plaintiffs. So, the question of suppression of fact does not arise. There is no cause of action in filing the suit and prayed to dismiss the suit.

04. Basing on the pleadings of both parties the following issues were settled for trial :

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

2. To what relief ?

Original Suit No.358 of 1999

05.This suit is filed for grant of mandatory Injunction directing the defendants to restore X-series field canal as shown in the plaint plan and for grant of permanant injunction restraining the defendants and their men from in any manner interfering with the plaintiff’s peaceful possession and enjoyment of water rights through X-series field channel as shown in the plaint plan.

06. The brief averments of the neat copy of amended Plaint filed on 8.9.2017 are as follows:

Plaintiff is the absolute owner of the Plaint schedule property. He converted the land into wet land about 30 years back and raising paddy crops every year and paying necessary water cess to the revenue authorities. The revenue authorities also issued ryotwari pass book and title deed in his favour. ‘ABCD’ shown in the plaint plan belong to the plaintiff which was shown as ‘P’ in the plaint plan, B, B1 of the plaint plan belongs to the land of defendants. Plaintiff and defendants are drawing water to their respective land through X, X1, X2, X3, X4 of the plaint plan for

Dt.31.07.2018 7 Common judgment the last 30 years. The plaintiff has no other source to draw water to his land, except X- series canal of the plaint plan.

ii) While matter stood thus, defendants closed X-series field channal at X1 point in the month of September, 1997 and the plaintiff reported the matter to Mandal

Revenue Officer, Martur and Mandal Revenue Officer, Martur on his personal inspection settle the dispute and directed the plaintiff and defendants to restore X-series field channel at a width of 23 links. The then Mandal Revenue Officer, Martur passed orders wide RC. B6/7/97, Dt.4.9.1998. As per the orders of the then Mandal Revenue Officer

X-series field channel was restored. Since then, the plaintiff has been drawing water without any interruption caused by the defendants till last year. The plaintiff sowed the seed bed and it is ready for transplantation and the plaintiff is also making necessary agricultural operations for transplantation of paddy crop. The defendants keeping previous misunderstandings in mind for the last two days have been openly giving out in the village that they will not allow the plaintiff to drew water through X-series field channel.

iii) Subsequent to dismissal of CMA.1/2001, the plaintiff filed application for implementation of Injunction orders in order to repair X-series field channel in

I.A.1370/01 and the same was allowed and when the police about to implement the

Injunction orders, they found X-series field channel was damaged by the defendants.

Except X-series field channel there is no other source to draw water to the plaintiff’s land. On account of misdeeds of the defendants, the plaintiff is unable to raise any crop in the Plaint schedule property and sustained huge loss, hence the suit.

07.First defendant filed his written statement which was adopted by second defendant refuting entire allegations of the plaint and further contended that the plan filed along with plaint by the plaintiff is incorrect and misleading. The plots ‘B B1’ of the plaint plan belonged to the defendant and purchased the same from one Chekuru

Krishna Murthy and his two sons under a registered sale deed Dt.12.7.1982. Since

Dt.31.07.2018 8 Common judgment then, defendants have been in possession and enjoyment of the same. Defendants purchased the said land as a dry land which is not under wet ayacut. A few years back defendant converted the same into wet land and having been in possession and enjoyment of the same by taking murugu water released by the Ayacutdars. The canal through which murugu water is being drawn by the defendants to their lands enter into the lands of defendants at X point, from them it turns towards North and goes along with Western ridge of the defendants land to some extent and again turns towards East along with Northern ridge of the defendants land, ultimately joins into Vaagu at North-

East corner of defendants land and the water flow into the said vaagu is from South to

North. The said murugu canal is an old and ancient one of 2 ½ feet in width having grass grown ridges of one foot in width and 1 ½ feet in height on either side.

ii)It is further averred that the said canal is in defendants land, there is no canal at all that goes across the defendants land and enters into the land of plaintiff through the land of defendants. The plaintiff has no right at all to draw water from the lands of defendants to his land since there is no canal at all. Moreover, plot P is higher in level than the plot B B1 by nearly 1 ½ feet to some extent bund of same height put up by the plaintiff. The owners of the lands situated on the South of the defendants land and plaintiff never received any water from the canal. Since the plaintiff and his sons taking advantage of the fact that defendants belonged to different villages and they have no support, giving out that they will destroy the ridge of the murugu canal in the land of defendants and take murugu water to their lands from the land of defendants, thereby defendants filed suit in OS.No.343/1999 on the file of this court against them for the grant of permanent injunction. Along with suit they also filed a petition in

I.A.No.1249/1999 for grant of temporary injunction. The defendants also got appointed an Advocate Commissioner to note down the non existence of any canal i.e., X series field channel across B B1 plots to draw water through it from the lands of defendants to the land of plaintiff. The Advocate Commissioner also visited the suit location and noted the non-existence of any such canal in the land of defendants, suppressing the filing of

Dt.31.07.2018 9 Common judgment

OS.No.343/1999, the plaintiffs filed the present suit with false allegations and they

approached the court with unclean hands,hence the suit is hit by section 10 of CPC.

iii)It is further averred that there is a land belonging to one Seshagiri Rao to the South of ‘B1’ plot. To the South of said Seshagiri Rao’s land, there is a murugu canal runs from West to East and ultimately joins into Vagu situated on East of plot P and it is the source of water to the plaintiffs land. There is an authorized canal through the land of said Seshagiri Rao and said canal water situated to the South of plot P and also some portion of plot P. There is a XX1X2X3X4 field channel and same was closed by the defendants in the month of September, 1997 and the same was restored as per the orders of Mandal Revenue Officer, Martur is false. This defendant or his brother never agreed before Mandal Revenue Officer, Martur to allow the plaintiff to draw water from their lands to his land. If there is any such agreement before the Mandal Revenue

Officer, same must be a fabricated and manipulated one. Moreover from the order of

Mandal Revenue Officer, it was known that both the parties are directed to dig a canal of 21 links width at their own cost to take water to the land of plaintiff from the land of defendants. It is made clear from the order of Mandal Revenue Officer that there is only a direction to dig the canal and it does not disclose as to the canal was actually dug. By the date of visit of the Advocate Commissioner in OS.No.343/1999 there exists no canal from the land of defendants to the land of plaintiff, hence the question of plaintiff drawing water to his land from the canal through the land of defendants and defendants are threatening to close the said canal does not arise. The existence of X series field channel across the land of defendants is neither supported by revenue records nor records of NSP department. The plaintiff has no right and title to draw water to his land from the land of defendants and prayed to dismiss the suit with costs.

08. Defendants 1 and 2 filed their neat copy of additional written statement contended interalia that there is no field channel across their land to the field of plaintiff and under the guise of Injunction orders, the plaintiff has been trying to dig a new canal

Dt.31.07.2018 10 Common judgment across their field and if the plaintiff succeeds in digging a canal in the private land of these defendants, they would suffer irreparably. The plaintiff tried to dig a canal across the land of these defendants and obtained interim orders suppressing the real facts.

When he filed I.A.No.1370/01 the first defendant filed his counter and this court passed orders on 7.12.2001 in the said I.A. issued official memorandum to the Martur police directing police to give police aid to the plaintiff for repairing only the existing X1 to X4 field channel and plaintiff was not dig new channel and accordingly police visited the suit lands on 24.12.2001 and found that entire lands of defendants is transplanted with paddy and there is no channel across their lands.

ii) As the plaintiff failed to dig a new channel under the guise of interim

Injunction as well as police aid he amended the plaint with false allegations. There is no X-series field channel in the fields of these defendants and the plaintiff has no source of canal through the lands of these defendants. When there is no X-series field canal in their lands, the question of damaging the same does not arise, the land through which plaintiff is claiming that there is a field channel is the private land of defendants and plaintiff has no locus standi to claim that there exist a field channel and it is a source of drawing water to his land. The plaintiff never drew water through the so-called imaginary canal. For the last several years there is a drought and even these defendants are not getting water to their land. These defendants got dug a bore well in their field towards South-West corner, have been drawing water to their land with the help of oil engine have been raising crops. These defendants filed a suit in

OS.No.343/1999 on the file of this court for permanant injunction. Along with the said

suit, they filed I.A.1250/99 for appointment of Advocate Commissioner to visit the suit locality and the commissioner visited the suit locality and filed a report wherein it is made clear that there is no canal across the field of these defendants to the land of plaintiff.

After the commissioner visited the suit land the plaintiff mischievously filed the present suit suppressing the filing of suit by the defendants got appointed another commissioner. The commissioner was appointed but the plaintiff did not even serve notice to the defendants and the report is invalid and cannot be taken into consideration.

Dt.31.07.2018 11 Common judgment

The suit for mandatory Injunction is not maintainable without seeking declaration of the right of the plaintiff with respect to his suit claim and prayed to dismiss the suit.

iii) During the pendency of suit first defendant died and defendants 3 to 8 were added as legal representatives of deceased/ first defendant as per orders in

I.A.661/12, Dt.16.8.2013. Similarly 6th defendant was died and defendants 9 to 12 were added as legal representatives of deceased / sixth defendant as per orders in

I.A.693/17, Dt.1.9.2017.

09. Basing on the pleadings of both parties the following issues were settled for trial :

1. Whether the plaintiff was enjoying water rights through X series field channel as on the date of the suit ?

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

3. To what relief ?

Additional Issue framed on 22.4.2014:

Whether the suit for mandatory injunction is maintainable without the relief

of declaration?

Original Suit No.72 of 2002

10.This suit is filed for claiming damages of Rs.40,000/- with interest at the rate of 12% p.a. and for costs.

11. The brief averments of the neat copy of Plaint filed on 8.9.2017 are as follows:

Plaintiff is the absolute owner of the Plaint schedule property, having converted the land into wet land about 30 years back and has been raising paddy crops every year and paying necessary water cess to the revenue authorities. The revenue authorities also issued ryotwari pass book and title deed in his favour. Except the plaintiff nobody has got right or interest over the Plaint schedule property.

Dt.31.07.2018 12 Common judgment ii) The defendants have got land on the Western side of the plaintiff’s land.

The plaintiff has to get water to his land in between the land of defendants through a field channel. Except the said source, the plaintiff has no other source to get water to his lands. When the defendants caused obstruction to the field channel of plaintiff, he referred the dispute to the then Mandal Revenue Officer, Martur and the same was settled in RC.No.B6/7/97, Dt.4.9.1998. Subsequently the plaintiff used to get water through the field channel located in between the lands of defendants. The defendants also filed false suit alleging that plaintiff tried to damage their ridges and for grant of permanent injunction in OS.No.343/1999 suppressing the real facts and also filed an application in I.A.No.1249/99. Subsequently the plaintiff got filed suit in OS.No.358/1999 on the file of this court against the defendants for grant of permanent injunction from interfering with peaceful possession and enjoyment of X-series field channel. Along with said suit, he also filed application for grant of Temporary injunction in

I.A.No.1308/1999. He also got appointed an Advocate Commissioner and Advocate

Commissioner in his report clearly mentioned that X-Series field channel is in the defendants land to draw water to plaintiff’s land and it is the only source of water to the plaintiff. On merits the injunction petition filed by the plaintiff is allowed in

I.A.No.1208/1999 and the application filed by the defendants in I.A.No.1249/1999 was dismissed. Aggrieved by the same, the defendants preferred CMA.No.1/2001 and

CMA.No.2/2001 and the said appeals were dismissed on merits.

iii)Even after passing the injunction order against the defendants they are not allowed to draw water to the plaintiffs land through X-series field channel. The defendants also damaged some portion of field channel high handedly inspite of injunction order pending against them. All the surrounding land owners including the defendants raised the crops and got good yield. In case of wet lands the investment for ploughing, fertilizers, pesticides etc., is more than Rs.5,000/- per acre and the yield per acre will be more than 35 bags of paddy, each bag worth is more than Rs.400/- and gross income per acre will be Rs.14,000/- excluding expenses and the net income per

Dt.31.07.2018 13 Common judgment acre is Rs.8,000/-, hence the plaintiff sustained total loss of Rs.40,000/- on account of mischief committed by defendants. Plaintiff filed an application in I.A.No.1370/2001 for granting police aid in implementing injunction order and to make necessary repairs to X-

Series field channel and the same was allowed by this court. On the directions of this court the Sub-Inspector of Police, Martur went to plaint schedule property for implementation of injunction orders but they were unable to implement the order since field channel was dismantled and defendants also diverted the field channel. The

SHO, Martur submitted a memo to this court expressing inability to implement the orders of this court. It is further averred that the plaintiff also filed an application for appointment of Advocate Commissioner to observe the recent transplantation made by defendants through X-series field channel and to note down the plaintiffs land kept idle on account of plough of X-series field channel which was dismantled. Since the plaintiff sustained loss of Rs.40,000/- on account of mischief committed by the defendants and plaintiff was unable to raise paddy crop during the agricultural year 2001-2002. The plaintiff also issued a legal notice on 25.3.2002 to the defendants by calling upon them to pay damages of Rs.40,000/- and defendant got issued a reply notice Dt.9.4.2002 with false allegations.

12.Subsequent to the suit, first defendant died intestate on 18.1.2012 by leaving defendants 3 to 8 as his legal heirs since they succeeded the estate of deceased first defendant thereby they were impleaded as parties as per orders in

I.A.No.672/2012 Dt.16.8.2013. 6th defendant also died on 19.8.2016 by leaving defendants 9 to 12 being sons and wife and they were impleaded as parties as per orders in I.A.No.694/2017 Dt.1.9.2017, hence the plaintiff constrained to file the suit claiming damages of Rs.40,000/- with subsequent interest at 12% p.a.

13.First defendant filed his written statement which was adopted by D2 by filing a memo refuting entire allegations of the plaintiff in the plaint and further contended that defendants purchased an extent of Ac.2.75 cents of land from Chekuri Krishna

Murthy and his two sons under a registered sale deed Dt.12.7.1982 and possession was

Dt.31.07.2018 14 Common judgment delivered to them. On the date of purchase it was a dry land which is situated to the

West of plaint schedule. A few years back, defendants have converted the dry land into wet land, have been cultivating by taking Murugu water released by the ayacutdars.

The canal through which Murugu water is being drawn by the defendants to their lands enter into the land of defendants at the middle of the Western ridge of the defendants land, from there it turns towards North and run along with Western bridge of the defendants land to some distance, again it turns towards East and run along with

Norther ridge of the defendants lands, ultimately on the North-East corner of the defendants land it joints into vagu situated on the East of the defendants land and plaintiffs land as well. Thus, the said murugu canal is in the land of defendants which is an old and ancient one of 2 ½ feet in width having grass grown bunds of one foot in width and 1 ½ feet in height on either side. It is further averred that there is no canal or any kind of field channel that runs across the land of defendants to plaintiffs land, there exists a field channel at all in the land of defendants to draw water from it to the land of plaintiff. The plaintiff has no right at all to draw water to his land from the land of defendants as there is no field channel. Moreover, the plaint schedule property is higher in level than the land of defendants by nearly 1 ½ feet. Since there is no field channel in the land of defendants to draw water through which to the lands of plaintiff, the question of defendants not allowing the plaintiff to draw water to his land and their damaging the canal to some extent high handedly does not arise ii)It is further averred that the defendants are residents of Valaparla village whereas their lands and plaint schedule property are situated at Darsi village, taking advantage of the same, when the plaintiff and his son were giving out that they will destroy the bunds of murugu canal situated in the land of defendants and take water from it to their lands by digging the channel across their land, the defendants filed suit in

OS.No.343/1999 on the file of this court for permanent injunction. Along with the suit,

the defendants also got appointed an Advocate Commissioner to inspect the suit locality.

When the Advocate Commissioner offered notice to plaintiffs, they refused to receive the same.

Dt.31.07.2018 15 Common judgment iii)It is further averred that the Advocate Commissioner visited the suit locality and filed his report, thereafter plaintiff filed another suit in OS.No.358/1999 on the file of this court against the defendants by suppressing the facts and pendency of earlier suit and took another commissioner, got filed another report without any notice or information to the defendants. It is further averred that the plaintiff filed a petition in

I.A.No.1378/2001 for granting police aid with an intention to dig a new channel across the lands of defendants under the guise of police aid. The Sub-Inspector of Police by name K.Chenchu Ramarao visited the lands of plaintiff and defendants on 24.12.2001 at about 10.30 a.m. along with his staff and both parties, found that there is no channel across fields of defendants and entire fields of defendants was transplanted with paddy.

As there is no channel much less X-series channel across the land of defendants, the police went away and police also filed a memo Dt.3.1.2002 along with photographs and their negatives into the court bringing the said facts.

iv) The Sub-Inspector of Police visited the lands on 24.12.2001 at 10.30 a.m., even prior to his date of visit he concocted a report by obtaining statements from the henchmen of the plaintiff and visited the lands subsequently. The plaintiff again filed a petition in I.A.No.172/2002 for appointment of Advocate Commissioner, but the said petition was dismissed. There is a land belonging to one Jangam Seshagiri Rao to the

South of defendants land. There is a field channel in the lands of Seshagiri Rao and through the said field channel, the plaintiff is drawing water to his lands in addition to the water from the canal situated on the South of lands of said Seshagiri Rao. He is also drawing water from the vagu situated to the East of his land and flow of water in the said vagu is from South to North. It is further averred that the plaintiff has no right to draw water from the lands of defendants. The alleged proceedings before the Mandal

Revenue Officer, Martur are false and concocted. The lands of defendants are patta lands. There is no channel through their lands. The plaintiff has no right to draw water from the lands of defendants. The plaintiff came to the court with unclean hands unless and until he establishes a right to draw water from the lands of defendants he has no right to claim damages from the defendants. There is no cause of action in filing the

Dt.31.07.2018 16 Common judgment suit. The yield in their land is not more than 20 bags per acre per annum if all the conditions are favourable. The investment will be Rs.6,000/- per acre per annum and net income will be around Rs.1500/- per acre per annum. The rate per bag of paddy is

Rs.300/-. The net income of plaintiff will not exceed Rs.7,500/- per annum and prayed to dismiss the suit with costs.

14. Basing on the pleadings of both parties the following issues were settled for trial :

1.Whether the plaintiff is entitled for damages as prayed for ?

2.To what relief ?

15.As per orders in I.A.No.467/2007 dated 4.7.2007, the suit in

O.S.No.358/1999, O.S.No.343/1999 and O.S.No.72/2002 were clubbed together for

common trial and common judgment and evidence was recorded in O.S.No.358/1999.

16.On behalf of the plaintiff, Pws.1 to 3, 5 to 8 were examined and

Ex.A1 to Ex.A5, Ex.X1 to Ex.X4, Ex.C1 and Ex.C2 were marked. The chief examination affidavit of PW4 was eschewed on 29.10.2009. On behalf of the defendants, Dws.1, 2, 4 to 6 were examined and got marked Ex.B1 to Ex.B25, Ex.C3 and Ex.C4. The chief examination affidavit of DW3 was eschewed on 1.2.2010.

16 (i)The learned counsel for plaintiff and learned counsel for defendants filed their written arguments on 20.6.2014 and 18.11.2014 respectively before my predessor.

16 (ii) For the sake of convenience, the parties will be arrayed as plaintiff and defendants as in O.S.No.358/1999.

17.Issue Nos.1 & 2 and Addl. Issue in O.S.No.358/1999:

Issue No.1 in O.S.No.343/1999

Issue No.1 in O.S.No.72/2002

In order to avoid repetition for the sake of convenience, I am discussing all the above issues together hereunder.

Dt.31.07.2018 17 Common judgment

The undisputed facts of the case are that the plaintiff is the absolute owner of the plaint schedule property shown as “ABCD” of the plaint plan having purchased the same about 15 years back from Bollineni Ramaiah of Ongole. It is also not in dispute that the defendants 1 and 2 had purchased “B” “B1” of the plaint plan from one Chekuru Krishna Murthy and his sons under a Registered Sale deed dated 12.7.1982.

18.It is the case of the plaintiff that plaintiff and the defendants are drawing water to their lands through canal shown as XX1X2X3X4, that in the month of

September, 1997, the defendants closed the X series filed channel at X1 point and same was settled by the Mandal Revenue Officer, Martur by directing both parties to restore the X series at a width of 23 links under order in Rc.B6/7/1997 dated 4.9.1998 and “ X” series filed channel was restored. It is further case of the plaintiff that there is no source to draw water to his land except X series channel.

19.Per contra, it is the case of the defendants that canal through which murugu water is being drawn by the defendants to their lands enter into the land of the defendants at X point, then it turns towards north , goes along with western ridge of defendants land to some extent, again turns towards east all along northern ridge of defendants, at north-eastern corner of the defendants lands joins into vagu situated on the east of the defendants and the water flow in the said vagu is from south to north, the said murugu canal is an old and ancient which is 2 ½ feet in width, having grass grown ridges. It is their further case that there is no canal that goes across the defendants lands , enters into the land of plaintiff from the lands of defendants.

20.Plaintiff in order to prove his case, examined himself as PW1 by filing his chief examination affidavit which is the replica of plaint,hence they are not reproduced hereunder. PW1 has categorically admitted that property shown in the plaint plan as “ABCD” was purchased by him from Bollineni Ramaiah, Ongole and the plots shown as “BB1” in the plaint plan purchased by defendants 1 and 2 even two years prior to his purchase. The lie of plot “ABCD” and “BB1” are from west to east.

Dt.31.07.2018 18 Common judgment

PW1 has categorically admitted that in between the land of defendants and his land,there is a ridge of 2 feet and he used to raise paddy in his land ever since the advent of NSP canal. There are authorized channels to draw NSP water to his land. He has no document to show that NSP water comes to his land through X series channel shown in the plaint plan. About one year prior to filing the suit in O.S.No.343/1999, the defendants obstructed the passage of water to his land through X series canal and he did not issue any legal notice to the defendants. He had raised crop in his land during that year. PW1 has categorically admitted that defendants 1 and 2 have purchased single plot from Cherukuri Venkata Subbaiah, he again says that there is a canal in the middle of their plot. PW1 categorically admitted that in the sale deed of the defendants it is recited as single plot was sold and existence of water canal in the middle was not recited therein.

21.PW1 categorically admitted that the land to the south of his land are at a height of 2 feet from his land and the lie of land is from south to north. There is a land of Marella Hanumantha Rao to the south of his land, to the further south of

Hanumantha Rao, there is land of Murikipudi Krupa Rao and two others. To the south of the land of Seshagiri Rao, there is a land of Adavapalli Anjaneyulu, there is a canal in between the lands of Seshagiri Rao and Anjaneyulu and it flows from west to east. The said Marella Hanumantha Rao , Murikipudi Krupa Rao and two others are drawing water through the cement sluice. It was suggested to PW1 that he is cultivating the land with the water of the said canal only and he never drew water through “X” series canal.

22.PW1 categorically admitted that his son Marella Hanumantha Rao has got land to the south of his land and his son’s land is lower in level than his land and difference in the land level is half feet. There is a sluice in the west of his land in the middle of the land except the said sluices, he has no other sluice. To the north of his land there is a canal and it flows into vagu. PW1 categorically admitted that, there is a canal to the north of land of defendants adjoining their ridges and it flows upto Vagu.

PW1 testified that seven or eight months prior to filing the suit, Mandal Revenue Officer

Dt.31.07.2018 19 Common judgment visited his land, recorded his statement. It was suggested to PW1 that arrangements were made by the Mandal Revenue Officer to let him draw water through the canal along with southern side of the defendants land but not through the middle of their lands.

It was suggested to PW1 that he dug a canal in the middle of the lands of defendants illegally and had shown the same to Commissioner. PW1 has categorically admitted that even on the date of visit of Advocate Commissioner, there was a paddy crop on either side of the canal and he had raised paddy seed bed in his land on the date of commissioner’s visit.

23.During cross-examination, PW1 categorically testified that since 1999 he did not raise any crops in his land and his land is kept fallow since then and he can produce documents to show that his land is kept fallow since 1999. There is a government canal through the drainage canal claimed by him. PW1 has categorically admitted that his son Hanumanth Rao is raising crops since 1999 and prior to it. It was suggested to PW1 that X series canal is not in existence and he never drew water through the same.

24.PW2/Uppalla Srinivasa Rao, who has got Ac.1.00 of wet land on the west of plaint schedule property testified that during the pendency of the suit defendants damaged X series filed channel, from the date of suit till today, plaintiff was unable to raise even dry crops since the land is unfit for raising the same. He further testified that there is no possibility to draw water to the plaintiff’s land even from

Southern side plot since it is lower in level and plaintiff has got only X series field channel to draw water to his land to raise wet crops. During cross-examination, PW2 categorically testified that he does not know whether the existence of X series canal was recited in the sale deed of plaintiff. PW2 has categorically admitted that there is a ridge of two feet height in between the land of plaintiff and land of defendants.

25.During cross-examination, PW2 has categorically admitted that land of Marella Hanumantha Rao who is son of plaintiff is abutting suit property on the

Dt.31.07.2018 20 Common judgment southern side, to the southern side of Hanumantha Rao, there is a land of Murikipudi

Krupa Rao and others. There is a land of Janjam Seshagiri Rao to the south of the land of defendants. There is a canal in between the land of Seshagiri Rao and Aravapalli

Anjaneyulu and they are receiving water from NSP canal and the said canal is being used by Krupa Rao and Hanumantha Rao for their respective lands and the said canal ends at the land of Hanumantha Rao. There is a cement sluice in the said canal into the land of Krupa Rao. The lie of lands of Krupa Rao and Hanumantha Rao are same.

There is a vagu to the North of the land of the plaintiff which is lower in level than the land of plaintiff. There is a canal to the north of the lands of the defendants which flows into the vagu through the land of plaintiff on its north. There is no document to show that

X series canal exists in the middle of the land of defendants. It was suggested to PW2 that the plaintiff never used the X series canal as it was not in existence.

26.PW3/Murikipudi Krupa Rao, who has got Ac.1.00 of wet land on the southern side of defendants land testified on similar lines of PW2. During cross- examination, PW3 categorically admitted that there is a ridge of 2 feet in height in between the land of plaintiff and land of defendants and he has got land to the south of land of defendants and he is not drawing water through X Series canal since he has got different canal. There is a land of Marella Hanumantha Rao who is no other than son of the plaintiff, to the south of land of plaintiff. PW3 has categorically admitted that he is using water from N.S.P canal to his land and so also Hanumantha Rao and the said canal ends at the land of Hanumantha Rao. There is a cement sluice in the said canal into his land and lie of his land and land of Hanumantha Rao are same. Lands of plaintiff and his land are joint. There is a vagu to the north of the land of plaintiff, the level of land of plaintiff is higher than vagu There is a canal to the north of the defendants and it flows into vagu through the land of plaintiff on the north. He has no document to show that existence of X series canal in the middle of the land of the defendants. It was suggested to PW3 that X series canal never existed and plaintiff had never drawn water through X series canal to his lands.

Dt.31.07.2018 21 Common judgment

27. PW5/Karedla Anjaiah, who has got Ac.2.00 of wet land on the west of defendants land intervening Ac.10.00 of land deposed on similar lines of Pws.2 and 3.

During cross-examination, PW5 has categorically admitted that there is a bund of two feet height in between the land of plaintiff and land of defendants. There is a land of

Marella Hanumantha Rao who is no other than son of the plaintiff, to the south of land of plaintiff. PW5 has categorically admitted to the south of the lands of defendants, there is land of Janjam Seshagiri Rao, to his further south,there is a land of Aravapalli

Anjaneyulu, in between the lands of Seshagiri Rao and Anjaneyulu, there is NSP canal, the NSP canal flows into west of the land of Hanumantha Rao and joins the Vagu towards East. The lie of the land of plaintiff and his son/Hanumantha Rao are same.

There is a vagu to the north of the land of plaintiff, the level of land of plaintiff is higher than vagu at a height of 5 or 6 feet. All the lands to the south of the X series canal are higher in level. He has no document to show that existence of X series canal in the middle of the land of the defendants. There is a water in NSP canal every year and even now land owners in the locality have raised paddy. It was suggested to PW5 that

X series canal never existed and plaintiff had never drawn water through X series canal to his lands.

28.PW6/Rolla Rama Rao, who has got Ac.0.70 cents of land on the north east corner of the plaintiff’s land testified on similar lines of Pws.2, 3 and 5 in his chief examination affidavit. PW6 has categorically admitted that there is a bund of 2 feet in between the land of plaintiff and the land of defendants. He has got land to the north-east corner of the plaintiff’s land. He is drawing water from X series canal which is beyond his evidence affidavit. Since the date of purchase, the plaintiff has been cultivating the land by raising paddy. There is a land of Marella Hanumantha Rao who is no other than son of the plaintiff, to the south of land of plaintiff. PW6 has categorically admitted that to the south of the lands of defendants, there is land of Janjam Seshagiri

Rao, to his further south,there is a land of Aravapalli Anjaneyulu, in between the lands of

Seshagiri Rao and Anjaneyulu, there is NSP canal, the NSP canal flows into west of the land of Hanumantha Rao and joins the Vagu towards East. The lie of the land of

Dt.31.07.2018 22 Common judgment plaintiff and his son/Hanumantha Rao are same. To the north of land of plaintiff, there is a canal which flows into Vagu towards east. The land of plaintiff is higher in level than vagu. He has no document to show that existence of X series canal in the middle of the land of the defendants. There is a water in NSP canal every year and even now land owners in the locality have raised paddy. It was suggested to PW5 that X series canal never existed and plaintiff had never drawn water through X series canal to his lands.

29.PW7/K.Subbaravamma, the Advocate Commissioner testified that she gave notices to counsel for the plaintiff. Since the defendants 1 and 2 were not available, she could not serve notices to them. She inspected the suit locality on 15.10.1999 and she was appointed to note down the existence of X series Canal and she filed report under Ex.C1 and plan under Ex.C2. During cross-examination, PW7 categorically testified that he visited the house of defendants at Valaparla , since they were not available she could not service notices to them but she did not mention the same in her report. PW7 has categorically admitted that XX1X2 canal was newly laid as there was red earth on the bunds on either side. There were no standing crops either in

P or in B1 and B2, on the dated of her visit. PW7 has categorically admitted that except

XX1X2, the remaining bund at remaining X series appeared to be old and covered with grass. In plot P at “N” marked space, there was paddy seed bed. The lie of the plots is from south to north, plots in south are higher in level than plots in north. It was suggested to PW7 that she did not issue notice to defendants intentionally,she noted the observations as suggested by plaintiff to suit his case and filed accommodate report and plan to help the plaintiff.

30.PW8/K.Krishna Murthy, the then Deputy Tahsildar, Marturu testified that he was authorized by Tahsildar, Martur to produce file in Rc .B.No.617/1997 dated 4.9.1998 which is marked as Ex.X1 and carbon copy of proceedings are marked under

Ex.X2 and plan prepared by Village Revenue Officer attested by Mandal Revenue

Officer marked under Ex.X3 and xerox attested copy of combined sketch for S.No.149 village No.113 under Ex.X4 and the said sketch shows flow of water from S.No.149 to

Dt.31.07.2018 23 Common judgment

S.No.151 and from there towards Vagu on north, where it joins with it. During cross- examination, PW8 categorically testified that canal flowing in S.No.149 and 151 is not dug by N.S.P authorities. PW8 has categorically testified that canal was dug in the patta land and its existence was mentioned in the revenue records. PW8 has categorically admitted that order in Ex.X2 that the defendants were directed to restore the canal which was closed. The said canal flows across the land of the defendant on west and turns towards north and then towards east and joins the vagu. It was suggested to PW8 that the canal never existed in the land of defendants and orders in Ex.X2 were obtained by managing the then Mandal Revenue Officer by plaintiff.

31.On the other hand, the first defendant herein is examined as DW1 by filing his chief examination affidavit reiterating the contentions raised in the written statement and got marked Ex.B1 to Ex.B25. During cross examination, DW1 admitted that there are no disputes between him and plaintiff with regard to extent, boundaries and ridges and enjoying their respective plots peacefully. His plot is on the Western side while plot of plaintiff is on the Eastern side. The Advocate Commissioner in

I.A.No.1250/1999 in OS.No.343/1999 shown all the physical features of the suit locality which were brought to her notice at the time of her inspection. There is no drainage canal in between plot A and plot B as shown in the commissioner’s plan. The land of himself, plaintiff and other lands in the locality are wet lands. It was suggested to DW1 that there is a drainage canal in between TT1 and proceeded towards North abutting

Western ridge of plot D1 and he removed the drainage canal in between TT1 and erected a bund at point B as shown in the commissioner’s plot just before visit of commissioner. He is cultivating his land with the aid of bore water but same was not averred in his written statement. There is a poramboku land to the North of land of plaintiff. It was suggested to DW1 that he did not dispute the plan of the plaintiff since it is correct. It was suggested to DW1 that plaintiff made a representation to the revenue authorities when he damaged the X series canal about a year prior to the filing the suit.

The revenue authorities inspected the land and restored the canal by directing himself

Dt.31.07.2018 24 Common judgment and plaintiff to meet the expenses equally. It was suggested to DW1 that he was served with copy of order passed in Ex.X2. He does not have any disputes with other neighbouring land owners except with plaintiff and he also does not have any disputes with PW2, PW3, PW5 and PW6. Except putting suggestions to DW1 nothing could be elicited by the plaintiff to prove that the plaintiff was enjoying the water rights through X series field channel to his plaint schedule shown as ABCD.

32. DW2/Mandapati Veeraiah, the Southern land owner of the defendants land testified that defendants and his brother purchased dry land which is not a wet land and they converted the said land into wet land by taking murugu water released by the upper ayacutdars and the said murugu water entered into the land of defendant at X point of the plaint plan, from there, it turns towards North, goes along with Western ridge of defendant’s land to some extent, it turns towards East all along

Northern ridge of defendants land and ultimately at North-East corner of defendants land, joins into vagu situated on the East of defendants land and flow of said vagu is from South to North. He further testified that the said murugu canal is an old and ancient one which is of 2 ½ feet width having grass grown ridges of 1 ½ feet height on either side and the said canal is in the lands of defendants. There is no X series canal across the land of defendants enters into the land of plaintiff from the defendants land.

The plot P shown in plaint plan is higher level than plots B and B1 by nearly 1 ½ feet to some extent and bund of same height was put up by the plaintiffs. The owners of land situated to the lands of defendants and plaintiff never received any water from the X series canal.

33.He further testified that the source of water for the plaintiffs land is there is a land belonging to one Seshagirirao to the South of B1 plot, to the south of said

Seshagirirao there is a NSP canal runs from West to East, joins into vagu situated to the East of plot P and it is the source of water to the plaintiffs land. DW2 further testified that the plaintiff has been regularly raising paddy crop in his land with the water available in NSP authorized canal which pass through the land of his son towards South of plot P

Dt.31.07.2018 25 Common judgment of plaint plan. During cross examination, DW2 testified that the X series canal flows in the plaint plan does not touch his land, the said canal is to the North of land of defendant

No.1 and it flows towards East upto vagu. The X series canal is in existence since 30 years. The X series canal is in the middle of plot of defendant No.1 flows in between land of plaintiff and land of defendant No.1 along North diverts towards East. The land of

Janjam Seshagirirao is to the South of the land of 1st defendant. It was suggested to

DW2 that except X series canal, the plaintiff does not possess any other source of water supply to his land and plaintiff has no chance of getting water through the canal to the

South of Seshagirirao and his land is higher in level than the land of Seshagirirao.

34.The evidence affidavit of DW3 was eschewed on 1.2.2010. DW4/Mukiri

Subbaiah having Ac.2.00 cents of land towards South of defendants land testified on similar lines of DW2. During cross examination, DW4 categorically testified that the drainage canal is in the land of defendant No.1 flows towards West and then flows into vagu. It was suggested to DW4 that the said channel flows along the Western ridge of the plaintiffs land, then joins into the vagu. It was suggested to DW4 that 1st defendant and plaintiff used to draw water from murugu canal and they have no other source of water supply to their respective lands.

35.DW5/ Karpurapu Anjaiah, having Ac.2.00 cents of land towards West of defendants land and Ac.0.80 cents of land towards South of defendants land testified on similar lines of DW2 and DW4. During cross examination, DW5 categorically testified that the murugu canal flows upto the land of 1st defendant, then it flows along the

Northern ridge of 1st defendant and through the land of Rudrapudi Rangaiah and then into vagu. The said drainage canal is in existence even by the time of his birth and there are no changes in the flow of drainage canal since then. The 1st defendant laid bore and by using bore water, is cultivating his land. The 1st defendant converted his land into wet about 30 or 35 years back after laying bore. It was suggested to DW5 that both plaintiff and defendant No.1 are cultivating their respective land with the water of drainage canal only and there is no other source of water to their respective lands.

Dt.31.07.2018 26 Common judgment

36.DW6/M.Neeraja, the Advocate Commissioner testified that in pursuance of the directions of this court, she visited suit locality to note down the plaintiffs drawing murugu water fromXX1X2 old murugu canal into plot A and plot P of the plaint plan and to give the width and depth of said canal and also to note down the existence of grass grown ridge on either side of the said canal and to note that plots D and D2 are not receiving murugu water into those plots from XX1 canal through plot A. On 12.10.1999 she visited the suit schedule property but the defendants refused to take notice issued by her and she filed her report and plan under Ex.C3 and Ex.C4. As per her observation there is no X series canal for plot A and plot B. During cross examination, she testified that there was paddy transplantation just few days prior to her inspection in plots TT1 and they were covered with water. She did not mentioned the lie of land in between M,

S1 plots and D1 and D2. She categorically admitted that there is no connecting canal between X and F and by the time of her inspection paddy seed bed was in existence in plot D. It was suggested to DW6 that she did not thoroughly observe the plaint schedule property.

37.Coming to the documentary evidence, Ex.A1 to A5 are the pattadar pass book, title deed and cist receipts, since there is no dispute with regard to ABCD property purchased by the plaintiff and the said documents are not germane for the facts in issue.

Ex.C1 is the Commissioner report in O.S.No.358/1999 and Ex.C2 is the Commissioner’s plan.

38. On the other hand, among the documents filed by the defendant under

Ex.B1 to Ex.B25, Ex.B1 is the registered sale deed Dt.12.7.1982 under which they purchased plot B and B1 of the plaint plan. Since there is no dispute with regard to property, it is not relevant for the fact in issue. Ex.B2 and Ex.B3 are the cist receipts,

Ex.B4 and Ex.B7 are the pattadar pass book and title deed. Ex.B9 is the legal notice,

Ex.B10 to Ex.B13 are the acknowledgments, Ex.B14 is the returned notice, Ex.B15 is the certified copy of counter in I.A.No.1317/2001 in OS.No.358/99, Ex.B16 is the certified copy of order in I.A.No.1317/2001 in OS.No.358/99, Ex.B17 is the certified copy of objections filed in I.A.No.1317/2001 in OS.No.358/99, Ex.B18 is the copy of

Dt.31.07.2018 27 Common judgment report given to Sub-Inspector of Police, Martur along with four postal receipts, Ex.B19 to

Ex.B22 are the postal acknowledgments from Sub-Inspector of Police, Martur, Inspector of police, Inkollu, Ex.B23 are the proceedings in CRP.No.5561/2001 Dt.13.9.2002 of

Hon'ble High Court of AP, Hyderabad, Ex.B24 and Ex.B25 are four photographs with

negatives.

39. The learned counsel for the plaintiff in his written arguments contended that from the evidence of PW1, the plaintiff established that about the existence of X series field channel long prior to the suit coupled with the evidence of PW7 and PW8 and by relying on by Ex.X1 to Ex.X4. PW2, PW3, PW5 and PW6 categorically testified that plaintiff used to get water to his land through X series field channel which is located in the middle of defendants land right from the beginning and there is no other source of water to the plaintiff.

40.The learned counsel for the plaintiff further contended that DW1 during cross examination, categorically testified that there is no drainage canal in between plot A and plot B1 as shown in the commissioners report and he did not seek redirection of the commissioner. DW1 further testified that no body including himself is utilizing the water passing through the drainage canal and he is cultivating his land with the aid of bore water which is a contra to his pleadings. The learned counsel for the plaintiff further contended that DW1 categorically testified that he does not have any disputes with revenue authorities but he denied about the representations made by the plaintiff to the revenue authorities and with regard to enquires conducted by them.

41.He further contended that DW2 during cross examination, testified that his lands situated at a distance of one furlong from the land of plaintiff and to his knowledge the X series field channel is in existence since 30 years and X series canal is in the middle of plot of first defendant flows in between the land of plaintiff and the land of first defendant all along North then diverts towards East.

42.The learned counsel for the plaintiff further contended in his written arguments from the evidence of both sides coupled with the evidence of commissioner

Dt.31.07.2018 28 Common judgment it is crystal clear that X series field channel is an oldest one which is in existence long prior to purchase of land by the plaintiff and defendants and X series field channel is the only source to draw water to the land of plaintiff.

43.The learned counsel for the plaintiff further contended in his written arguments that from the evidence of plaintiff and defendants, the existence of X series field channel is ancient one and right from the excavation of NSP canal, plaintiff and defendants are utilizing the water through X series field channel for more than descriptive period by provocating their water rights, hence under section 15 of

Easement Act, the enjoyment of dominant owner through the land of serveant owner must be peaceful, open and without any interruption for a period of 20 years and plaintiff established his right and he further contended that adverse possession and easement need not be specifically pleaded in the plaint but the plaintiff specifically pleaded in his written statement in OS.No.343/1999, so the perfection of title by adverse possession and right easement are species of title. The dominant owner has no right to restrict the use of serveant tenement except to the extent that his right of easement is perfected.

In bolster of his contentions, he relied upon the following decisions :

(1) 1997 (1) ALT Pg 23 in between M.Harichandra Prasad Vs., Chitturi

Krishnamurthy and others

(2) AIR 1978 Kerala 50 in between Tharur Panchayath and others Vs.,

Kunchayi and another (3) AIR 1973 MP 143 in between Baboo Narayanlal Vs., Manoharlal

(4) 1984 (2) ALT 204 in between Karri Ramulu and others Vs., Niylaru

Adinarayana and others

44.The learned counsel for the plaintiff further contended that the defendant filed the suit by suppressing the facts and rushed to this court by suppressing the documents to get favourable order but the same cannot be permitted under law. In support of his contentions he relied upon a decision reported in 2007 (6 ) ALT 472 DB in

between Tirumala Tirupati Devasthanams rep. by Executive Officer, Tirupathi,

Chittoor District Vs., T.Venkata Padmavathamma and others.

Dt.31.07.2018 29 Common judgment

45.The learned counsel for the plaintiff further contended in his written arguments that when both the parties put forward their evidence and the documents, the burden of proof is in significance, the onus of proof will be changed from time to time for which he relied upon a decision reported in AIR 1960 Supreme Court 100 in between

Narayan Bhagwantrao Gosavi Balaji Vs., Gopal Vinayak Gosavi and others.

46.The learned counsel for the plaintiff further contended that the plaintiff discharged his burden and established that there is X series field channel and he is drawing water to his land through the said canal and there is no other source to draw water, then defendants have to establish that there is no existence of canal across his land but the defendants failed to place cogent evidence contra to commissioner report and X series documents. In support of his contentions, he relied upon a decision reported in 2003 (4) ALT 383 in between T.Seshareddy and others Vs., Managing

Committee, Jame Masjid and others.

47.The learned counsel for the plaintiff in his written arguments further contended that though the relief of mandatory injunction is harshest in nature it can be granted on the ground of equity. Initially the plaintiff filed the suit for permanent injunction, subsequently defendant damaged existence of X series field channel by violating the order of this court. Even without seeking the specific relief of mandatory injunction he is entitled to claim the same under law. In support of his contentions, he relied on the following decisions :

1) In between Ronda Narapareddy and others Vs., Ronda Suryanarayana Reddy reported in 2004 (2) L.S. 521

2) in between Palliboyina Bulliyya and others Vs., Dadi Peda Veeraju (died) and others reported in 1993 (1) ALT 692

48.On the contrary, the learned counsel for the defendants in his written arguments contended that the defendants categorically denied the proceedings

Dt.31.07.2018 30 Common judgment prepared by Mandal Revenue Officer, Martur under Ex.X1 to Ex.X4 and they never attended before Mandal Revenue Officer, Martur and they never admitted that they restored field channel as per the proceedings of Mandal Revenue Officer Dt.4.9.1998.

The plaintiff got examined Deputy Tahsildar as PW8 and got marked Ex.X1 to Ex.X4 through him. But PW8 categorically testified that he has no personal knowledge about the proceedings under Ex.X1 to Ex.X4, in such case, it is the duty of the plaintiff to examine the persons attached to Ex.X1 to Ex.X4 to prove that the said documents are prepared in the presence of defendants 1 and 2 with their consent and knowledge but the plaintiff failed to examine those persons to prove the contents in Ex.X1 to Ex.X4.

Unless and until the plaintiff proved that Ex.X1 to Ex.X4 were prepared with the consent and knowledge defendants 1 and 2, the documents are not binding on them. In support of his contentions, he relied on a decision reported in 2002 (3) ALT 754 in between

Ramnivas Gupta and others Vs., Maliram.

49.The learned counsel for the defendants contended that plaintiff failed to prove Ex.X1 to Ex.X4, hence they cannot be taken into consideration by the court. The next contention raised by the learned counsel for the defendants that the plaintiff got marked Ex.X4, the combined sketch of survey No.149 and 151 but the plaintiff failed to file entire village map of Isukadarsi. As per the village map, the dotted lines shown in the survey No.s. 149 to 151 are specified as cart tract and not the field channel. Plaintiff taking advantage of dotted lines from survey numbers 149 to 151 stated that the X series murugu canal flows from 149 to 151 as per Ex.X4. In fact, there is no canal in existence from survey No.149 to 151. The plaintiff played fraud on the court in collusion with revenue authorities with a view to get a new right of taking water through the X series canal in the lands of defendants without any right or authority.

50. The next contention raised by the learned counsel for the defendants in his written arguments, the commissioner who is examined as DW6 observed that there is no existing murugu canal through the lands of defendants which enter into the land of plaintiff. The commissioner also observed another canal which is in existence to the

Dt.31.07.2018 31 Common judgment land of Seshagirirao and water entered into S1 plot from CC1 murugu canal through a small canal marked as SE and lastly the said water entered into VV1 marked vagu and a small canal as situated beside the said dibba through plot D marked as GH in the plan of commissioner. The observation made by the learned commissioner in

OS.No.343/1999 clearly mentioned that X series field channel is an old murugu canal

of 3 feet width and 3 feet depth with grass grown bunds.

51. The next contention raised by the learned counsel for the defendant that the commissioner in OS.No.358/1999 visited the suit land without giving notice to the defendants and inspected the suit land in their absence. The plaintiff intentionally not show the existing authorized NSP canal to the commissioner which flows through the land of Janjam Seshagirirao, Kruparao and Hanumanthurao who is son of plaintiff with a view to show that except X series canal there is no other canal for drawing water to his land.

52.The next contention raised by the learned counsel for defendants in his written arguments that the report of the commission in OS.No.358/1999 clearly indicates about the X series of murugu canal at points XX1X2 a new red mud was laid by the plaintiff just before her visit without knowledge and consent of the defendants.

53.The next contention raised by the learned counsel for the defendants that during cross examination, PW1 categorically admitted that the lands to the South of his land are at a height of 2 feet from his land and the lie is from South to North. PW2,

PW3, PW5 and PW6 in their cross examination categorically testified that the land of plaintiff and his son are joint. In view of categoric admission made by PW.s 1,2,3,5 and 6, the lands on the Southern side of plaintiff land i.e., Plot P are higher in level and land of plaintiff and his son are one and the same. The plaintiff is receiving water to his land through the land of his son through an authorized NSP canal situated to the East of land of Janjam Seshagirirao which flows to the lands of Kruparao and plaintiff’s son, ultimately reached the plaintiff’s land, it joins into the vagu situated to the East of the plaintiff’s land.

Dt.31.07.2018 32 Common judgment

54. The next contention raised by the learned counsel for the defendants that

PW1 categorically admitted that there are authorized channels to draw NSP water to his land. During 2001-2002, he raised crops with the water in the NSP canal. Pws.2 and 3 have categorically testified during cross-examination on 17.12.2008 that sine two or three years,the plaintiff is not raising paddy in his land that means till 2005 the plaintiff raised paddy crop in his land and contra to their evidence PW5 during cross- examination on 29.1.2009 testified that since six or seven years the plaintiff was not raising any crops in his land that means the plaintiff raised crops till 2003.

55. The learned counsel for the defendants further contended that from the evidence of Pws.1 to 3, 5 and 6, it is made clear that even in the absence of X series murugu canal, plaintiff raised paddy crops in his land through another source, hence the plaintiffs are not entitled to take aid under Easement Act for easement of necessity. The plaintiff failed to satisfy the ingredients under Section 18 of the Easement Act and even as per revenue records, there is no existence of X series canal and it is not an authorized canal.

56.The learned counsel for the defendants strongly contended that since the plaintiff is claiming water right through X series canal as right by way of prescription under Section 15 of the Indian Easement Act, as per Section 25 of the Act, plaintiff has to prove by cogent evidence that he used the X series murugu canal for a period of 20 years continuously on the date of fling the suit and plaintiff also failed to file revenue records to prove the same. Plaintiffs purchased plot ‘P’ of the plaint plan which is shown as ‘ABCD’ about 5 years back prior to giving evidence on 5.9.2008, from his own evidence as PW1 that he never used X series Murugu canal continuously for a period of 20 years. Plaintiff wantonly not filed sale deed before this court to prove his case that prior to his purchase, his vendors used X series Murugu canal and the said right was conveyed from his vendor. Further contended that mere existence of an easement is not enough and it requires to be established that the said easement is still subsisting and under use and enjoyment. The necessity contemplated under Section

Dt.31.07.2018 33 Common judgment 13(a) of the Indian Easements Act is absolute necessity which cannot be deprived without recording a finding on the basis of evidence on record. Further contended that under Section 39 of the Specific Relief Act, the burden of proof is on the plaintiff to prove his own, failure of defendants to prove their case,does not entitle the plaintiff for a decree of mandatory injunction. Further contended that the Advocate commissioner is only to note the existing physical features of the locality for which he was appointed and the Commissioner cannot decide the rights of the parties indispute. In support of his contentions, he placed reliance on the following decisions:-

(1) in between Janab Mohammed Ayub Vs., Janab Mohaboob Shariff and

another reported in 2004 (1) A.P.L.J. 95;

(2) In between Akula Bhagiraraju and others Vs., Padala Satyanarayana and

others reported in 2007 (2) ALD 323;

(3) In between U.L.Narasimham Vs., G.Venkatesa Rao reported in 2002 (1) L.S.

268 ;

(4) In between B.Ramulamma Vs., M/s.Venkatesh Bus Union and another

reported in 2009(3) Law Summary 173(DB);

(5) In between Landmark Developers, Hanmakonda, Warangal District Vs.,

State of Andhra Pradesh and others reported in 2013 (1) ALD 338 ;

(6) In between Kambhampati Srihari Vs., Nallamalli Kanchivaradarajam and

others reported in1998 (1) Law Summary AP 77;

(7) In between Justiniano Antao and others Vs., Smt Bernadette B.Pereira

reported in AIR 2005 Supreme Court 236;

(8) In between Sankar Kumar and another Vs., Mohanlal Sharma reported in

AIR 1998 Orissa 117 ;

(9) In between M.Govindarajulu Vs., Smt Bhushanamma reported in 2000 (2)

ALT 71;

(10) In between Bongu Ramulu and another Vs., Gudur Narender Reddy

reported in 1998 (1) L.S. AP 829 ;

Dt.31.07.2018 34 Common judgment

(11) In between Pedda Seetharamappa and others Vs., Pedda Appaiah reported

in AIR 1962 Andhra Pradesh 84 ;

(12) In between Chaitan Das Vs., Smt Purnabasi Pettnayak and others reported

in AIR 1988 Orissa 52 ;

57.The next contention raised by the learned counsel for the defendants that plaintiff must show that the defendants invades or threats to invade the plaintiffs right or enjoyment under Section 38 of the Specific Relief Act. But the plaintiffs failed to prove they had been receiving water through X series canal across the land of defendants to their land for raising wet crops. On the other hand, the defendants amply proved that plaintiffs have been drawing water to the land through authorized NSP canal situated on the south of the plaintiff’s land adjoining land of his son Hanumantha Rao and since there is a bund in between plots of plaintiffs and defendants, no water flows from the lands of defendants to the land of plaintiff and same was categorically admitted by Pws.1 to 3, 5 and 6.

58.The next contention raised by the learned counsel for the defendants that evidence let in by plaintiff is contradicting with each other and there is no iota of evidence is placed by the plaintiff that he has got right of enjoyment in drawing water from X series canal and same was obstructed by the defendants. On the other hand, the defendants amply proved that there is no ‘X’ series canal across their land and PW1 also categorically admitted that defendants purchased property as single plot does not disclose X series canal existing across their land. The plaintiffs have no personal right through X series canal at any point of time and for grant of equitable relief of injunction, the plaintiff must have personal interest in the matter. In support of his contention he placed reliance on the following decisions:

(1) In between Premji Ratansey Shah and others Vs., Union of India and others

reported in 1994 (3) ALT 25 SC;

Dt.31.07.2018 35 Common judgment

(2) In between M/s.Seemax construction Private Limited Vs., State Bank of

India and another reported in AIR 1992 Delhi 197 ;

(3) In between Kachana Padmavathi and another Vs., Proddatur Municipality,

Proddatur and others reported in 2007 (3) ALD 614 ;

(4) In between Surisetty Tulasi Venkata Nagabhushana Rao Vs., Visakhapatnam

Municipal Corporation, Visakhapatnam and another reported in 2013 (5)

ALD 547;

(5) In between Samala Tirupathayya and others Vs., Bandaru Baburao (died)

and others reported in 2012 (5) ALD 603.

59.The learned counsel for the defendants further contended that the plaintiff is not entitled to seek the relief of mandatory injunction against the defendants without the relief of declaration of his right over X series canal. Unless a declaration as to the illegality of the action was claimed, the possibility of granting mandatory injunction and consequential relief of perpetual injunction does not exist In support of his contention he placed reliance on following decisions:-

(1) in between Kannaiah Mandadi (died) and another Vs., Residents of

Gollapalem, Kanipakam, Chittoor District reported in 2014 (1) ALD 66;

(2) In between Kachana Padmavathi and another Vs., Proddatur Municipality

rep. by the Commissioner and others reported in 2007 (4) ALD 58;

(3) In between Surisetty Tulasi Venkata Nagabhushana Rao Vs., Visakhapatnam

Municipal Corporation, Visakhapatnam and another reported in 2013 (5)

ALD 547;

(4) In between Samala Tirupathayya and others Vs., Bandaru Baburao (died)

and others reported in 2012 (5) ALD 603.

(5) In between Kachana Padmavathi and another Vs., Proddatur Municipality,

Proddatur and others reported in 2007 (3) ALD 614 ;

Dt.31.07.2018 36 Common judgment

60. ISSUE No.1 in O.S.No.343/1999:-

It is the case of the plaintiffs that the defendants without any manner of right are trying to interfere with the possession and enjoyment of the plaintiffs in the plaint plan property and also Murugu canal shown as XX1X2 of Plot A of the plaint plan.

61. On the contrary, it is the contention of the defendants they have been drawing water through X series murugu canal across the lands of plaintiffs i.e.

defendants in O.S.No.358/1999 for raising paddy crops from the date of their pur;chase and exercising their right of drawing water over a statutory period. There is no dispute that Plot-A of the plaint plan belonged to the plaintiffs.

62.So far as Issue No.1 in O.S.No.72/2002 is concerned:- It is the case of the plaintiff that due to obstruction made by the defendants with regard to X series

Murugu canal, he failed in raising paddy crop in his land for the year 2001-2002, thus the plaintiff had sustained damage of Rs.40,000/-. On the other hand, it is the plea of the defendants that there is no existing X series canal across their land to draw water by the plaintiff to his land and plaintiff is not entitled for damages against them.

63. Coming to Ex.X1 which is file pertaining to Rc.B.No.617/1997

dated 4.9.1998. In the said file, it is evident that the then Mandal Revenue Officer,

Martur addressed a letter to the District Collector, Ongole in Rc.B.No.617/1997 dated 15.4.1998 wherein it is referred that one Sri Marella Anjaneyulu i.e. plaintiff herein filed a petition to the District Collector , Ongole requesting that he has land in S.No.151/3

Ac.5.00 which is being raised paddy crop since 1984 and this year one Tanneeru

Papaiah i.e. deceased 1 st plaintiff in O.S.No.358/1999, whose lands are adjacent to the said Anjaneyulu obstructed the water flowing in the field land and requested to give water. The said petition has been endorsed to the Mandal Revenue Offier, Martur to inspect the spot and sort out the problem. There is a drainage channel connected with irrigation channel at the upsteam in the western side of both S.Nos which is channalised

Dt.31.07.2018 37 Common judgment according to the convenience of the adjacent ryots and not included in the plan. At present there is a field channel in the north-east direction of the S.No.149/2 and it merges in the vagu poramboke. The said petitioner i.e. Marella Anjaneyulu contention is that if the land owner of S.No.149/2 gives permission to arrange flow of water for irrigation of his fields, which will form a straight channel to the already existed field channel on the west. Both parties have been informed to give up 23 links of their patta land for formation of field channels on the east and west and to the existed field channel and which merges at the starting of the vagu poramboke in the north-southern end. Both parties have been agreed to relinquish the 23 links of their patta land to convert the same as poramboke keeping in view of the future litigation”.

64.From the recitals of letter addressed by the then Mandal Revenue

Officer, Martur to the District Collector, Ongole under Ex.X1 file, it is made clear that there is a drainage channel on the western side of plot-A of plaint plan in

O.S.No.343/1999 i.e. on the western side of land of the plaintiff therein and it is not

included in the plan which falsifies Ex.X4 and supports the contention of the learned counsel for the defendants that the plaintiff failed to file entire village map of Isukadarsi and as per the village map, the dotted lines shown in the survey No.s. 149 to 151 are specified as cart tract and not the field channel and plaintiff taking advantage of dotted lines from survey numbers 149 to 151 stated that the X series murugu canal flows from 149 to 151 as per Ex.X4. PW8/Deputy Tahsildar also categorically admitted that he did not inspect the suit locality till the date of giving evidence. In such a case, how PW8 testified during cross-examination that the said channel was available by the date of passing orders in Ex.X2. There is no whisper from the recitals of Ex.X2 which is the carbon copy of proceedings issued by the then Mandal Revenue Officer, Martur dated 4.9.1998, the defendants were directed to restore the canal which was closed.

65. Coming to the evidence on record, PW1 during cross-examination categorically admitted that there was water in NSP canal in the year 2001-2002 and he

Dt.31.07.2018 38 Common judgment raised crops in his land. PW1 has categorically admitted that there are authorized channels to draw NSP water to his land. During 2001-2002, he raised crops with the water in the NSP canal. Pws.2 and 3 have categorically testified during cross- examination on 17.12.2008 that sine two or three years,the plaintiff is not raising paddy in his land that means till 2005 the plaintiff raised paddy crop in his land and contra to their evidence PW5 during cross-examination on 29.1.2009 testified that since six or seven years the plaintiff was not raising any crops in his land that means the plaintiff raised crops till 2003. Pws.2 to 3, 5 and 6 have deposed in one voice that they have not seen the defendants destroying the canal. Though PW1 during cross-examination has categorically testified that since 1999 he did not raise any crops in his land and land was kept fallow since then and he can produce documents to that effect. But there is no iota of document is placed before this court to prove that the plaintiff did not raise any crops in his land since 1999. In the next breath during cross-examination on 24.10.2008, PW1 has categorically admitted that there was water in the NSP canals in 2001-2002 in which year he raised crop and there is a government canal through the drainage canal claimed by him. PW1 pleaded his ignorance about any records available with NSP authorities. PW1 has categorically admitted that his son Hanumantha Rao has been raising crops in his land since 1999 and even prior to it.

66. PW3 during cross-examination on 17.12.2008, categorically admitted that plaintiff had raised paddy ever since he had purchased his land and lands of plaintiff and his son are joint and son of plaintiff by name Hanumantha Rao is using NSP canal for drawing water to his land and there is a vagu to the north of the land of plaintiff.

There is a canal to the north of the defendants and it flows into the vagu through the land of the plaintiff on the north. PW3 has categorically testified that he did not see the defendants destructing X series canal. Moreover, PW8/Deputy Tahsildar testified that X series murugu water flows at point X, turns to north all along western ridge of the defendants, then turns towards east all along northern ridge of the plaintiff, then at the north-east corner it joints into Vagu.

Dt.31.07.2018 39 Common judgment

67.In view of my foregoing discussion and on a careful scrutiny of the evidence of Pws.1 to 3, 5 to 8, categoric admissions made by plaintiff and witnesses examined on his behalf, coupled with documents filed on both sides and decisions cited supra by both sides in their written arguments, this court is of the considered opinion that the plaintiff failed to place any iota of evidence to prove that the plaintiff has been exercising right of drawing water through X series canal across the lands of the defendants shown as BB1 of the plaint plan and in the month of September, 1997 the defendants destroyed the said channel and consequently the plaintiff was unable to raise paddy crops in his land for the year 2001-2002, thereby he sustained damages to a tune of Rs.40,000/-. Absolutely there is no evidence on record to prove the case of the plaintiff. On the other hand, the defendants who are plaintiffs in O.S.No.343/1999 have clinchingly proved their case by cogent and convincing evidence that they have been enjoying plot A of plaint plan by taking water from murugu channel XX1X2 and hence the defendants in O.S.No.358/1999 i.e. plaintiffs in O.S.No.343/1999 are entitled for the equitable relief of permanent injunction restraining the plaintiffs from in any manner interfering with peaceful possession and enjoyment of plot A. All the above issues are answered accordingly.

OS.No.343/1999

68. IN THE RESULT, suit is decreed with costs by granting permanent injunction restraining the defendants, their men and agents from in any manner interfering with peaceful possession and enjoyment of the plaintiffs plot ‘A’ by defendants taking water of murugu canal XX1X2 to their plots D1 and D2 through plot ‘A’ by destroying of ridges of XX1 or Eastern ridge of plot ‘A’.

OS.No.358/1999

69. IN THE RESULT, the suit is Dismissed with costs.

Dt.31.07.2018 40 Common judgment

OS.No.72/2002

70. IN THE RESULT, the suit is dismissed with costs.

Typed to my dictation by the Stenographer Grade III, corrected and

pronounced by me in open court this the 31st day of July, 2018.

Prl. Junior Civil Judge, Addanki.

// APPENDIX OF EVIDENCE //

Witnesses Examined

For Plaintiff PW1 : Marella Anjaneyulu @ Anjaiah PW2 : Uppala Srinivasarao PW3 : Murikipudi Kruparao PW4 : K.Seshaiah (eschewed) PW5 : Karedla Anjaiah PW6 : Rolla Ramarao PW7 : K.Subbaravamma PW8 : K.Krishnamurthy

For Defendants DW1 : Tanneru Papaiah DW2 : Mandapati Veeraiah DW3 : M.Yesudasu (eschewed) DW4 : M.Subbaiah DW5 : Karpurapu Anjaiah DW6 : M.Neeraja

Documents Marked

For Plaintiff Ex.A1 : Pattadar pass book Ex.A2 : Title deed Ex.A3 : Cist receipt Dt.21.2.1990 Ex.A4 : Cist receipt Dt.27.3.1992 Ex.A5 : Cist receipt Dt.9.5.1997

Through PW7 Ex.C1 : Commissioner’s report Ex.C2 : Commissioner’s plan

For Defendants Ex.B1 : Registered sale deed Dt.12.7.1982 Ex.B2 : Cist receipt Dt.12.9.2000 Ex.B3 : Cist receipt Dt.12.9.2000

Dt.31.07.2018 41 Common judgment

Ex.B4 : Pattadar pass book Ex.B5 : Title deed Ex.B6 : Pattadar pass book Ex.B7 : Title deed Ex.B8 : CC of Commissioner’s report and plan in I.A.No.1250/99 in OS.343/99 Ex.B9 : CC of legal notice Dt.6.7.2000 and five postal receipts Ex.B10 : Postal acknowledgment Ex.B11 : Postal acknowledgment Ex.B12 : Postal acknowledgment Ex.B13 : Postal acknowledgment Ex.B14 : Returned unserved legal notice Ex.B15 : CC of counter in I.A.No.1370/2001 in OS.358/98 Ex.B16 : CC of order Dt.7.12.2001 passed in I.A.1370/2001 in OS.358/99 Ex.B17 : CC of objections filed in I.A.1370/01 in OS.358/99 Ex.B18 : Copy of report to Sub-Inspector of Police, Martur Ex.B19 : Postal acknowledgment Ex.B20 : Postal acknowledgment Ex.B21 : Postal acknowledgment Ex.B22 : Postal acknowledgment Ex.B23 : Proceedings in C.R.P.No.5568/01 Dt.13.9.2002 issued by Hon'ble High Court of A.P, Hyderabad. Ex.B24 : Four photographs in I.A.1370/01 Ex.B25 : Negatives of said photographs

Through DW6 Ex.C3 : Commissioner’s report Ex.C4 : Commissioner’s plan

Through PW8 Ex.X1 : File pertaining to R.C.B.No.617/97, Dt.4.9.1998 Ex.X2 : Carbon copy of proceedings of MRO, Martur Ex.X3 : Plan prepared by VAO which is attested by MRO, Dt.14.4.1998 Ex.X4 : Crossed attested copy of combined sketch for S.No.149 village No.113.

Prl. Junior Civil Judge Addanki

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, ADDANKI

Present : KALIVE SURESH BABU

Principal Junior Civil Judge, Addanki

Friday, this the 29 th day of May, 2020.

Original Suit No. 206 of 2003

1. Emani Ratna Reddy, S/o. Narayanareddy, aged 89 years,

2. Emani Hanumantha Reddy, S/o.Markandeyulu, aged 53 years,

3. Emani Chennareddy (died), S/o.Pitchireddy, aged 63 years,

4. Emani Koteswaramma, W/o.chennareddy, aged 62 years

5. Emani Dhanalakshmi, W/o.Srinivasa Reddy, aged 37 years,

6. Emani Lavanya, D/o.Srinivasareddy, aged 18 years,

7. Pallerla Nirmala, W/o.Venkatareddy, aged 49 years, Hindu, House wife, Kandalagunta (V), N.G.Padu (M), Prakasam District.

Plaintiffs 1 to 6 are Hindus, cultivation, Budavada (V), J.Panguluru (M), Prakasam District.

(Plaintiffs 4 to 7 were impleaded as Legal heirs of deceased/ 3rd Plaintiff as per orders in I.A.NO.1168/2018, dt.18.02.19)

...Plaintiffs

Vs

1. Emani Balaramireddy, S/o.Veerareddy, aged 63 years,

2. Emani Rajya Lakshmi, W/o.Balaramireddy, aged 53 years,

3. The Mandal Revenue Officer, J. Panguluru Mandal.

Defendants 1 and 2 are Hindus, cultivation, Budawada (V)

J.Panguluru (M), Prakasam District....Defendants

This suit is coming on 10th day of February, 2020 before me for final hearing in the presence of Sri A. Ramaswamy and Sri K.Ramakrishna Rao- Learned Counsels for Plaintiffs and of Sri P. Ramesh- learned counsel for Defendants 1 and 2; Defendant No.3 having remained ex-parte, upon perusing the oral and documentary evidence on record, and having stood over for consideration till this day, this Court delivered the following :- // J U D G E M E N T //

This suit is filed for (a) Permanent Injunction restraining the defendants 1 and 2 and their men from making any vents in the canal bund across ‘X2-X3’ as shown in the plaint plan from diverting water flow from West to East; (b) Mandatory injunction for removal of the bund between “X-X1 “ to facilitate the usual flow of water from the burial ground situated on the north of Plot-B towards its south and for costs.

02.The brief averments of the neat copy of amended plaint

dt. 02.04.2019 in nut shell are as follows :

Plaintiffs 1 to 3 possess ancestral property i.e., plots A,A1,A2 in an extent of about Ac.4.68 cents in Sy.No.121 and 123 of Budavada

Village and each Plaintiff has got Ac.1.56 cents. 1st Plaintiff and his brother/ Markandeyulu owned Plot-B in an extent of Ac.4.87 cents in

Sy.No.120, 121 and 123. They had sold away the same under two registered sale deeds in favour of defendants 1 and 2 in the year 1975.

To the north of “A” series and Plot-B, originally there is a Donka situated in

Sy.No.119. To the north of the said Donka, there is a big tank in Sy.No.118 belonging to the Endowment. In between Donka and the tank, there is a road on the tank bund runs from Pavuluru Village to Budawada Village. To the West of Plot-B, there is a burial ground. The said tank has out let on its West. Whenever the tank is filled, the water flows through out let joins the channel runs from North to South towards West of burial ground and then towards East as shown in the plaint plan. Budawada Village is at a distance of one furlong to the West of Burial ground.

(ii) Previously, the lie of “A” series plots and Plot-B was even.

The rain water falls in the donka used to flow through donka from East to

West and join the channel from the out let of the tank. In the year 1969, there was a heavy cyclone and due to the said cyclone, the tank was breached to the north of A” series lands and the soil in the “A” series plots was washed away into a depth of one yard. Thereafter, the plaintiffs had levelled plots “A series”. The lie of “A” series plots is from North to South-

West even before and after the cyclone. On account of erosion of soil in “A” series plot and Donka on its North, the lie of “A” series and donka to its North became one yard lower in level than the land on East as well as

West.

(iii) The land on the East of ‘ plot A2’ is belonging to Emani

Subbareddy, who is the brother of 1st Plaintiff. In order to avoid inundation of his land due to flood water flowing through the donka, 3rd plaintiff had excavated a channel in his own land on the East from North to South, which joins the channel. As per the lie of “A” series ,the water in the said plots used to flow from North-West to South-East through the outlet on the South-East corner of “Plot-A2”.

(iv) After purchasing Plot-B, defendants 1 and 2 have arranged sluices shown as “S” by inserting a pipe in the tank bund and excavated a canal through the said pipe from North to South by arranging a bund on either side to a height of one feet. Defendants 1 and 2 encroached into

Donka Poramboke situated in Sy.No.119 towards north of Plot-B, levelled the entire land and divided the land into three plots. Whenever the water is available in the tank, the defendant used to cultivate them as wet land.

The lie of three plots belonging to defendants 1 and 2 is from East to

West. The rain water and drainage water used to flow from East to West from the plots of D1 and D2, runs towards south through an out let on the

South-West corner of Plot-B. Likewise, the Plaintiff also arranged a sluice at “S1” by inserting a pipe and excavated a canal upto North-East corner of Plot A1 and cultivating their plots according to availability of water in the tank. The level of Poramboke to the north of “A” series plots is higher than “A” series. The lie of poramboke on the north of A series was changed from West to East due to the effect of cyclone. There is a bund on the North of “A” series plots. The water in the poramboke towards north of “A” series will flow towards East and joins the channel arranged by 3rd Plaintiff in plot- A2.

(v) The water from Plot-B and the poramboke to its north never flow towards East. Three years back, on the request of SC & ST community people of Budawada Village, 3rd defendant got surveyed the Donka -

Poramboke on the North of “A” series and Plot-B and demarcated said poramboke as burial ground for the said community. Defendants 1 and 2 having encroached the burial ground to some extent situated in Sy.No.81 has been cultivating the same along with their land. The burial ground on the west of Plot-B is one feet higher in level than Plot-B. So that the water in the poramboke situated on the North of Plot-B used to flow from

East to West, then towards South through plot-B. In the year 2001, defendants 1 and 2 tried to divert the water flow in the burial ground situated on the north of Plot-B towards East. Then, the 1st Plaintiff made a representation to District Collector, Ongole and 3rd defendant complaining about the illegal acts of defendants 1 and 2. But the revenue authorities did not take any action on the said representation.

(vi) In the year 2002, Village elders settled the dispute between the 1st Plaintiff and 1st defendant. As per the said settlement, 1st Plaintiff and 1st defendant had entered into an agreement on 22.06.2002 in the presence of elders, wherein they agreed to allow rain water falls in the burial ground on the north of Plot-B to flow from East to West and then towards South through the land in Sy.No.81 abutting West of Plot-B. As per the terms of the agreement, defendants 1 and 2 have no right to diver the water falls in the burial ground situated on the North of Plot-B towards

East. As the defendants 1 and 2 raised bund on the North of Plot-B, the entire water will be stagnated in the burial ground towards north of Plot-B and form like a pond. The defendants 1 and 2 are also trying to make vents in X2-X3 canal about 15 days back to divert the entire water from

Burial ground on the north of Plot-B towards East to cause loss to the

Plaintiffs as they ploughed their land for raising crops. 3rd defendant was impleaded as proforma defendant who is obliged to maintain the burial ground demarcated by him in Sy.No.119.

(vii) Pending lis, 3rd Plaintiff died. So, the Plaintiffs 4 to 7 were brought on record as his legal heirs as per orders in I.A.No.1168 of 2018, dt.18.02.2019.

03. After receipt of suit summons, 3rd defendant was called absent and as there was no representation, the 3rd defendant was set ex parte on 03.09.2004.

04. 1st defendant filed his written statement and the same was adopted by 2nd defendant resisting the suit claim on several allegations and contended inter alia that plaint plan is not correct. The lie of defendant’s land is about 3 feet higher in level than the land of Plaintiffs since times immemorial. The natural lie of the land belonging to the defendants is concerned it is slightly concave shape , the rain water falls therein flows towards middle from both ends and then towards south into

V-2 Vagu shown in the written statement plan. The natural lie of the land belonging to the plaintiffs is from North-West to South-East.

(ii) The land covered by ‘B1,B2 and B3’ in the written statement plan are in Sy.No.119 and it is a donka-poramboke. About 4 years back, the said Poramboke was converted into burial ground for S.C community people living in Dhanalakshmi Colony.

(iii) The Plot-B1 in an extent of Ac.0.30 cents is nearly 3 feet higher in level than Plot-B2. The natural lie of plots-B1 and B2 is from

West to East since times immemorial. The rain water falls in Plot-B1 flows into Plot-B2, from there into “V-1” Vagu since times immemorial.

(iv) The bund between Donka-poramboke I.e,. Plot-B1 and land of defendants I.e, “D” series as shown in the written statement plan is about 1 ½ feet height and 2 feet in width. The said bund has been in existence even prior to the land purchased by the defendants from 1st Plaintiff and his brother. The land situated in S.No.81 is to the West of defendants land/ “D” series as shown in the written statement plan is about 1 ½ feet higher in level than “D” series land. The said land is being used as burial ground for vaddera community. So that, there is no possibility of flow of rain water either from Plot-B1 or from the lands of defendants into the land in S.No.81. The rain water falls in Sy.No.81 land flows into V-2 marked vagu as shown in the written statement plan.

(v) ‘V-1’ Vagu shown in the written statement plan has been in existence since times immemorial. The breach occurred to the tank due to cyclone in the year 1969 was just opposite to ‘V1’ vagu and due to the same, the depth and width of V-1 vagu was affected and increased due to erosion of the soil in the said vagu, which is now more than 6 feet in depth and 21 feet in width. So, the rain watter falls in Plot-B1, B2 and “P” series lands flows into ‘V1’ vagu as shown in the written statement plan.

(vi) The Plaintiffs without any manner of right, highhandedly raised a bund in a height of 3 feet and width of 15 feet and length of 35 feet in plot-B2 between X6 and X7 and closed vents between “X2-X3” and caused obstructing of usual and natural flow of water from Plot-B1 into V1- vagu through Plot-B2. The defendants have been demanding the Plaintiffs to reopen the vents between X2-X3, but in vain. The defendants had reported the mater to Mandal Revenue Officer, J.Panguluru, who in turn enquired and made them to reopen the vents between ‘X2-X3’ for free and natural flow of water from Plot-B1 and B2 into “V1 vagu”.

(vii) 1st defendant has got site to the east of 1st plaintiff’s house and said site is convenient for the construction of new house. When the 1st defendant intended to purchase the same 1st Plaintiff agreed to sell away and a bargain was settled for Rs.20,000/-. This defendant had paid

Rs.500/- towards advance for which 1st plaintiff agreed to execute a

Registered sale deed on payment of balance sale consideration. The possession of the said site was delivered to the 1st defendant on the date of payment of advance. When the 1st defendant started construction of his new house in his site as well as in the site purchased by him from the 1st Plaintiff, when the construction was in progress and raised walls upto 10 feet, due to the disputes in between them in respect of vents, plaintiff had raised dispute, consequently, he stopped construction of his new house. Elders namely Gade Veera Reddy, Emani Venkata Reddy, Emani

Devadanapu Reddy and Emani Venkateswaara Reddy had pacified the disputes. Plaintiffs put a condition to close vents between “X2 and X3” to send the rain water falls in Plot-B1 land into land in Sy.No.81 through vents “X1” and “X2”. On coming to know about the agreement between Plaintiffs and defendants to close the vents between “X2- X3” and open the vents “X- X1”, Vaddera community and SC community made a protest questioning the plaintiffs and defendants about their right to enter into such agreement in respect of their lands and flow of water in their respective lands. There is no possibility for flow of water from Plot-

B1 into land in Sy.No.81. The level of Plot-B1 is more than 3 feet higher in level than that of plot-B2. The natural and usual flow of water in Plot-B1 is from West to East. The people belonging to SC and Vaddera

Community are proper and necessary parties to to the suit since the land in Sy.No.119 and Sy.No.81 are belonging to them and rights regarding the water flow in the said land are in question in the suit. Government is also proper and necessary party to the suit. The suit is very bad for non- joinder of necessary and proper parties. There is no cause of action in filing the suit and prays to dismiss the suit with costs.

(viii) Pending lis, after bringing plaintiffs 4 to 7 on record being legal heirs of deceased 3rd plaintiff, 1st defendant filed additional written statement and the same was adopted by 2nd defendant contended inter alia that the Plaintiffs have no right to claim any relief under the proposed amendment. Eemani chennareddy died on 16.05.2016 leaving behind plaintiffs as his legal heirs and they have to come on record as supplemental plaintiffs 4 to 7 are not correct. Eemani chennareddy has another son by name Eemani Jayaramireddy. The present amendment in the suit without bringing him on record is not maintainable and prayed to dismiss the suit.

05.On the strength of the respective pleadings, the following issues are settled for trial:-

1. Whether the Plaintiffs are entitled for Permanent injunction against the defendants from making any vents in the canal bund across X2-X3 marked canal diverting water flow from

West to East?

2. Whether the Plaintiff are entitled for mandatory injunction against the defendants for removal of the bund between X-X1 to usual flow of water from burial ground on the north of Part-B towards south?

3. Whether the suit is maintainable for non-joinder of necessary parties?

4. To what relief ?

06.On behalf of plaintiffs, 1st plaintiff was examined as PW.1 and got marked Ex.A1 to Ex.A7.. Eemani Venkata Reddy, son of Venkateswara

Reddy as PW3. Sri M.Chandrasekhar- Advocate-Commissioner was examined as PW4 and got marked Ex.C1 and Ex.C2. Chief affidavit of

PW2/Maddumala Chinnabbaiah was eschewed on 12.11.2014. On behalf of the defendants, 1st defendant was examined as DW1 and got marked

Ex.B1. Eamani Venkata Reddy, son of Hanuma Reddy and Emani

Jayarami Reddy were examined as Dws. 2 and 3 respectively.

07.Heard the learned counsel for Plaintiffs. Learned counsel for

Defendants 1 and 2 filed written arguments.

08.ISSUE No.3:-

It is the specific case of the plaintiffs that defendants 1 and 2 are trying to make vents in “X2-X3” canal about 15 days back to divert the entire water from Burial ground on the north of Plot-B towards East to cause loss to the Plaintiffs as they ploughed their land for raising crops and as per the terms of the compromise under Ex.A7, the defendants 1 and 2 have no right to divert water falls in the burial ground situated on the North of Plot-B towards East.

09.Per contra, it is the stand taken by the defendants that admittedly, the Donka poramboke situated in S.No.119 was allotted to

Schedule Caste community people as a burial ground and the said allotment was prior to filing the suit. To adjudicate the claim of the plaintiffs their presence is necessary and without impleading them as parties to the suit, the suit is bad for non-joinder of necessary parties. It is further case of the defendants in their additional written statement the suit without bringing another son of the 3rd plaintiff namely Eemani

Jayaramireddy, is not maintainable. Government is also proper and necessary party to the suit proceedings.

10.The learned counsel for the plaintiffs while advancing arguments has contended that plaintiff had only grievance against the defendants and in a suit for injunction, plaintiffs have the prerogative to choose their opponents and nobody can claim right to get himself impleaded to the dislike of the plaintiffs. Mandal Revenue Officer,

J.Pangalur was added as 3rd defendant herein, who remained ex parte after receipt of suit summons.

11.The learned counsel for the defendants in his written arguments has contended that PW.1 in his cross examination has admitted that Donka Poramboke situated in S.No.119 was alloted to

Schedule Caste community people as burial ground.PW1 also further deposed in his cross-examination that he did not implead Vaddera community people as party to the suit proceedings. PW3 also categorically admitted the same. In view of the categoric admissions made by Pws.1 and 3 and pleadings in the plaint, there is a Poramboke towards north of Plot-A and Plot-B as shown in the plaint plan in S.No.119 and same was alloted to SC community people and to the west of Plot-B, there is a burial ground and the same was allotted to Vaddera

Community. Therefore, Schedule Caste community people and Vaddera

Community people are necessary and proper parties to the suit. The suit is bad for their non-joinder as they are necessary parties.

12. It is true that under O. 1, R. 9 of the Code of Civil Procedure, no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under O. 1 R.

10, sub-rule (2) direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties plea of limitation.

13.It is settled law that in a suit for injunction, the plaintiffs have the prerogative to choose their opponents and no body can claim right to get himself impleaded to the dislike of the plaintiff. It is only when the allegations of collusions or fraud are made then the court can consider the feasibility of impleading third parties also, if it is found that their interests are adversely affected on account of their not being made as parties. The general rule in regard to impleadment of parties is that the plaintiffs in a suit, being dominus litis, may choose the persons against whom they wish to litigate and cannot be compelled to sue a person against whom they do not seek any relief. Consequently, a person who is not a party has no right to be impleaded against wishes of the plaintiffs.

But this general rule is subject to the provisions of Order 1 Rule 10(2) of

Civil Procedure Code, which provides for impleadment of proper or necessary parties”. It is needless to say, the present suit is filed for perpetual injunction as well as for Mandatory injunction for removal of bund by the defendants 1 and 2.

14.In the light of the above discussion, this court holds that the suit is not bad for non-joinder of necessary parties. This issue is answered accordingly.

15.ISSUE Nos. 1 and 2:-

The undisputed facts of the case are that:- 1st defendant had purchased the land shown as “B” series in the plaint plan from the first plaintiff under Ex.B1/Registered Sale Deed in the year 1975 in an extent of Ac.4.87 cents. The donka situated in S.No.119 was alloted to SC community people to use the same as burial ground. The said donka is to the north of Plot-B and “A” Series” . To the west of Plot-B shown in the plaint plan, there is burial ground in S.No.81. There was a heavy cyclone in the year 1969 and the tank was breached to the north of “A” series plot. There is an outlet on the west of village tank. On the tank bund, there is a road leads from Pavuluru-Budawada. The land purchased by him under Ex.B1 is 4 feet higher in level than the lands of plaintiffs. Both plaintiffs and defendants arranged a sluice towards north of their land from the tank and used to draw water from the respective sluice to cultivate their lands.

16.It is the specific case of the plaintiffs that lie of poramboke on the north of “A series was changed from West to East due to the effect of cyclone. There is a bund on the North of “A” series plots. The water from

Plot-B and the poramboke to its north never flow towards East. The defendants after their purchase, encroached the burial ground to some extent in S.No.81, raised bund shown as “XX1” in the plaint plan to obstruct the usual flow of water falls in the poramboke land situated on the north of Plot-B and “A series plots” from East to West. And also making efforts to make vents at “X2-X3” shown in the plaint plan.

17.Per contra, it is the stand taken by the defendants that the rain water or any other water never flows from East to West towards north of “A” series poramboke through the “Plot-B” poramboke to its north in S.No.119 and joints the tank outlet as claimed by the plaintiffs.

The natural and usual flow of water is from West to East.

18.To substantiate the case of the plaintiffs, 1st plaintiff was examined as PW1 and got marked Ex.A1 to Ex.A7. According to PW1, the land sold to the 1st defendant is 2 ½ feet higher than his land and so also land in S.No.81 is 2 feet higher than the “Plot-B” shown in the plaint plan.

1 or 2 years prior to filing the suit to evade the flow of water into his land he raised bund at “X6” and “X7” as shown in the written statement plan. PW1 has categorically testified that he was present at the time of execution of warrant by the Advocate-Commissioner and he had gone through the report filed by him. At the time of cyclone due to hole to the water tank, water flows through his land towards South. PW1 has categorically admitted that the rain water falls in the poramboke not flows towards West as the land of the defendants is higher in level. Plots of plaintiffs and defendants are not even levels.

19.The chief affidavit of PW2/Maddumala Chinnabbai was eschewed on 12.11.2014.

20. PW3/Eemani Venkata Reddy, according to him the lie of the lands of poramboke on the north of Plaintiffs land is from West to East.

The water from the lands of defendants 1 and 2 and the poramboke to its

North never flows towards East. About 14 years back, defendants 1 and 2 tried to divert the water flow in the burial ground to the north of their lands towards East. The elders intervened and pacified the dispute. 11 years back, 1st defendant raised a big bund to the north of their land, on account of the same, water was stagnated and defendants 1 and 2 made a vent in the bund to divert the water flow towards East in order to cause loss and damage to the plaintiffs. Contrary to his chief examination, in the cross-examination, PW2 has categorically admitted that rain

water falls in the Poramboku land on the north of the plaintiffs

land flows towards East and joins in Pavuluri Vagu. Water in

Pavuluri Vagu towards East upto the land of plaintiffs, take turn

towards South since long time. According to PW2, plaintiffs arranged water pipes to the East of his land in a height of 8 feet and in view of the same, the water falls in the Poramboke situated on the north of the Plaintiffs land not flows towards East. 1st defendant has purchased house site from the plaintiff and when the construction of house work was going on, at that time the disputes arose between them about 12 years back.

21.On perusal of record, along with suit which was filed on 4.11.2003, plaintiffs filed I.A.No.871/2003 under Order 26 Rule 9 of Civil

Procedure Code, sought for appointment of an advocate-Commissioner to inspect the suit locality, to observe the lie of “A series plots” and plot-B, “XX1X2” bund raised by the defendants 1 and 2, X2-X3 canal, bund on either side, stagnation of water in the burial ground towards North of plot-

B, and to note such other physical features existing in the suit locality and to file report and plan. Accordingly, this court had appointed PW4/Sri

M.Chandrasekhar as an Advocate-Commissioner.

22.AccordingtoPW4/SriM.Chandrasekhar,Advocate-

Commissioner, all the plots of “P series” i.e. plots of plaintiffs and “R series” i.e. defendants lie from North to South. “V1” vague i.e. “V1” vagu as shown in the written statement plan flows from North to South and towards east of “Plot-P series. i.e. plaintiffs lands. It is the evidence of

PW4 that the water falls in “B1” marked plot has no chance to flow towards “B” marked plot since “B” marked plot is higher in level than “B1” marked plot.

23.Per contra, 1st defendant was examined as DW1 who filed his chief affidavit,in lieu of chief examination reiterating the contentions raised in the written statement and got marked Ex.B1. According to DW1, poramboke land flows from East to West. It was suggested to DW1 taking advantage of Ex.A7 agreement, he is causing obstruction of flow of water from East to West.

24.According to DW2/Eamani Venkata Reddy, the level of Plot-

B1(as shown in the written statement plan) is more than three feet higher in level than “Plot-B2”. The natural and usual flow of water in Plot-B1(as shown in the written statement plan) is from West to East. Defendants carted earth between “XX1X2” of the plaint plan as the water was leaking from his land.

25.According to DW3/Emani Jayarami Reddy, the water from the lands of plaintiffs passes from North to West, thereafter towards South-

East corner. The rain water will not flow from “plot- B1 to Plot- B2, Plot-B2 to B3” of the written statement plan.It was suggested to DW3, the defendants carted mud on the northern ridge of “B” series land, levelled the ridge to a height of 1 ½ feet and the plaintiff never raised bund at a height of three feet, in a width of 15 feet and length of 35 feet in “B2” marked land shown in the written statement plan in between “X6” and “X7” and closed the vents between “X2 – X3”, caused obstruction to the flow of water to “B1” through “B2” into vague shown as “V1” in the written statement plan.

26.Coming to the documentary evidence, Ex.A1 is the title deed book stands in the name of 1st plaintiff/PW1. Ex.A3 to Ex.A4 are the cist receipts dated 27.2.1991, 10.5.2001 and 1.4.1999 respectively. Ex.A1 would show that 1st plaintiff has got Ac.7.81 cents of land in different survey numbers under patta No.419 of Budawada village. There is no dispute about ownership of “A series plots” by plaintiffs.

27.Ex.A3 to Ex.A4 would show that 1st plaintiff and 3rd plaintiff had paid cist on the respective dates. Since there is no dispute about the ownership of the land of plaintiffs, Ex.A1 to Ex.A4 assumes no importance to prove the suit claim.

28.It is the specific case of the plaintiffs in the year 2001, defendants 1 and 2 tried to divert water flow in the burial ground situated on the North of Plot-B towards East. Then the first plaintiff sent a representation to the District Collector and 3rd defendant on 8.11.2001 and they received the said representation under Ex.A4 and Ex.A5. The office copy of the said representation was not available.

29.It is further case of the plaintiffs that in the year 2002, village elders settled the dispute between the 1st plaintiff and 1st defendant.

Accordingly, they entered into an agreement on 22.6.2002 under Ex.A7 in the presence of elders wherein, 1st defendant had agreed to allow rain water falls in the burial ground on the north of Plot-B to flow from East to

West, then towards South through the land in S.No.81 abutting west of

Plot-B shown in the plaint plan.

30.On perusal of Ex.A7, agreement was entered into between 1st plaintiff and 1st defendant on 22.6.2002, same is extracted hereunder”- “2002 వ వవవవవవవ వవవవ వవ 22 వవవ వవవవవ వవవవ, వవ.వవవవవవవవ వవవవవ, వవవవవ వవవ వవవవవవవవవ (1) వవవవవ వవవవవవవవవవ వవవవవవవ వవవవవవవ (2) వవవవ వవవవవవవవ వవవవవవవ వవవవవవవవ వవవవవవ వవవవ వవవవవవవవవవ వవవవవవవ వవవవ.

వవవవ 2 వ వవవవ వవవవవ వవవవవ వవవవవవవవ వవ వవవవ వవవవవవవవ వవవవ వవవ వవవవవవ వవవవవవవవ వవవవ వవవవవవవవ. వవ వవవవవవ వవవవవవ వవవ వవవవవ, వవవవవవవవ వవవ వవవవవవ వవవవవ వవవవ వవవవవవవవ వవవవవవవవవ వవవవవవవవ వవ వవవవవ వవవవవవ వవవవవవవవవవవవ. వవవవ వవవవ వవవవ వవవవవ వవవ వవవవవవవ వవ.వవ.121 వవవవవ వవవ వవ వవవవవవ. వవవవ వవవవవ వవవవ వవవవవ 119 వవ వవ వవవవవ వవవ వవవవవ వవవవవ వవవవవవ వవవవవవవ 81 వవవవ వవవవవవవ వవవ వవవవ వవవవవ వవవవవ వవవవవ వవవ వవవవవవవవవవ, వవవవ 1 వ వవవ వవవవవ వవవవవ వవ వవవవవవ వవవవవ వవవ 1 వ వవవ వవవవవ వవవవవవవవవవ వవవవవవవ, వవవవవవవవవ వవ వవవవవ వవవవవవవ వవవవవవవ వవవ వవవవ వవవవవవవవవవవవ. వవవవ వవవవ వ వవవవ వవ వవ వవవవవ.”

31.The learned counsel for the plaintiff while advancing arguments has contended that DW1 has categorically admitted that disputes cropped up between him and plaintiffs in the year 2002 with regard to flow of water in S.No.119 to the north of his land and he signed in Ex.A7 in the presence of elders and he agreed for flow of the rain water falls in S.No.119 to the North of his lands from East to West and then towards South. Plaintiffs have amply proved their case by placing cogent and convincing evidence. Therefore, the plaintiffs are entitled for suit claim.

32.On the contrary, the learned counsel for the defendants in his written arguments has contended that from the categoric admissions made by 1st plaintiff as PW1, it is manifest that natural lie of water falls into poramboke situated on the north of Plot-B and “A series “ is from west to East, joins into vagu situated on the eastern side of “A series “

I.e “V1-vague as shown in the written statement plan. The rain water falls in poramboke not flows towards west as the land of the defendants is higher in level. Further more, PW1 has categorically testified that plots of plaintiffs and defendants are not even levels. So, PW1 has suppressed the natural flow of water.

33.The learned counsel for the defendants further contended that according to the report and plan of the Advocate Commissioner marked as Ex.C1 and Ex.C2, entire “R” series plots I.e plots of defendants are 2 ½ higher in level than the plaintiffs land. The report further reveals that burial ground is in higher in level on the north and lower in level on the south. Advocate-Commissioner/PW4 has categorically stated that “B1 marked burial ground is higher in level than “B2” marked burial ground, “B2” marked burial ground is higher in level than “B3” marked burial ground. PW4 has categorically testified that water falls in “B1 marked plot has no chance to flow towards “B” marked plot since plot-B is higher in level. According to the evidence of PW4 and his report under Ex.C1, there is no scope for the water falls in Poramboke land situated on the north of “A series plot” towards west through “Plot-B” and joints the tank outlet as claimed by the plaintiffs.

34.The learned counsel for the defendants further contended that evidence of PW3/Emani Venkata Reddy also clinchingly supports the case of the defendants who categorically admitted that lands of the defendants are 4 or 5 feet higher in level than that of the lands of plaintiffs. The rain water falls in the Poramboke land on the north of the plaintiffs lands flows towards East and joins in the Pavuluri Vagu.

35.The learned counsel for the defendants further contended that in a suit for permanent injunction as well as Mandatory injunction, the burden lies on the plaintiffs to prove their case by placing cogent and convincing evidence and they cannot depend upon the weaknesses of the case of the defendants. The relief of perpetual injunction, on the one hand, and mandatory injunction,on the other hand, cannot be claimed, in respect of the same property, simultaneously, without claiming the relief of declaration. In support of his contentions, he placed reliance on a decision in between Kachana Padmavathi And Anr. Vs. Proddatur

Municipality And Ors reported in 2007(3) ALD 614.

Facts in the decision are that the appellants filed O.S. No.238 of 1983, in the Court of Principal District Munsif, Proddatur, for the relief of perpetual injunction, to restrain the respondents herein, from interfering with the possession of the suit schedule property, particularly, a strip of land, that was sought to be converted into a road. The relief of mandatory injunction was also prayed for, to direct the respondents herein, to remove the road laid by them. Be that as it may, by the time the suit was filed, the road was already laid.

The Hon’ble High Court held that :the road was laid by the respondents, and unless a declaration as to the illegality of such an action was claimed, the possibility of granting the relief of mandatory injunction and the consequential perpetual injunction, did not exist. The relief of perpetual injunction, on the one hand, and mandatory injunction, on the other hand, cannot be claimed, in respect of the same property, simultaneously, without claiming the relief of declaration. The reason is that whenever a plaintiff seeks the relief of mandatory injunction, it is presumed that the defendant has not only encroached the property in question, but also had brought about improvements. Therefore, it becomes impossible for the Court, to grant the relief of perpetual injunction, which presupposes the plaintiff, being in possession of the property”.

36.The learned counsel for the defendants further contended that plaintiffs utterly failed to discharge the burden lies on them to prove that the lief of lands as well as flowing of water is from east to west, also defendants raised vents in X2-X3 marked portion. Under law, the person who wishes the court to believe the existence of fact must be proved.

Plaintiffs failed to prove their possession and enjoyment over poramboke land in S.No.119 situated opposite to “A series plots” shown in the plaint plan. In support of his contention, he placed reliance on following decisions:-

I) Netrambaka Krishnaiah Vs.Nellore Audinarayana reported in 2006(2) ALD 1

Facts in the decision are that petitioner filed

I.A.No.1053/2004 in O.S.No.1030 of 1999 on the file of learned Principal

Junior Civil Judge, Nellore under order 18 Rule 4 read with Section 151 of the Civil Procedure Code to determine the admissibility of understanding/agreement dated 26.10.1997 marked as Ex.A6. The said petition was dismissed on the ground that Ex.A6 created interest in favour of the petitioner and thus it requires to be sufficiently stamped and registered as per the Registration Act and it cannot be admitted in evidence. The said petition was dismissed by learned Principal Junior Civil

Judge, Nellore. Feeling aggrieved, Civil Revision was filed before the

Hon’ble High Court and said C.R.P was dismissed holding that if a

document is purporting to create an interest in the immovable property, it is inadmissible in evidence for want of registration.

ii)Another decision in between Anathula Sudhakar Vs.

P.Buchi Reddy (Dead) By Lrs & Ors reported in 2008 Lawsuit (SC)

1186 wherein held that:It is settled law that in a suit for permanent injunction to restrain the defendants from interfering with plaintiffs’ possession, the plaintiffs will have to establish that as on the date of the suit they were in lawful possession of the suit property and defendants tried to interfere or disturb such lawful possession.

37.The learned counsel for the defendants further contended that a simple suit for mere injunction is not maintainable when the defendants denied the right of the plaintiff over the suit schedule property. In support of his contention, he placed reliance on a decision in between Jharkhan

State Housing Board Vs. Didar Singh & Anr reported in 2019 SAR

(Civil)Page 37.

Facts in the decision are:- plaintiff filed the suit for permanent injunction claiming the plaint schedule property was purchased by him under Registered Sale Deed dated 8.8.1990 for sale consideration of

Rs.12,000/- from Subhodh Singh Deo. Defendant filed written statement that vendor of plaintiff had no legal right and title over the property as defendants acquired suit schedule property along with other properties under Land acquisition proceedings in 1965. The trial court decreed the suit. Appellate Courts i.e. Additional District Court, Singhabuym as well as

Hon’ble High Court dismissed the appeal.

The Hon’ble Apex Court held that “ It is well settled by catena of

Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction. “.

Coming to the case on hand, it is the version of both parties, the donka situated on the north of Plot-B and Plot-A series is in S.No.119 belonging to the Government. And also, the burial ground situated in

S.No.81 on the west of Plot-B shown in the plaint plan is belonging to the

Government which was allotted to Vaddera Community as cemetery. Law is well settled that a suit for mere injunction does lie only when the defendant raises a genuine dispute with regard to the title and when they raise a cloud over the title of the plaintiffs, then necessarily in those circumstances, the plaintiffs cannot maintain a suit for bare injunction.

Admittedly, the donka situated in S.No.119 and 81 are government lands and the government is the paramount owner. Concerned Tahsildar was added as 3rd defendant who subsequently remained ex-parte. So, neither plaintiffs nor anybody has right to seek for declaration of their right over the same. In that view of the matter, the decisions cited supra by the learned counsel for the defendants in respect of suit for bare injunction is not maintainable without seeking the relief of declaration will not lend any support to their contentions as they are not applicable to the case on hand.

38.The report of the Advocate-Commissioner/Ex.C1 and plan/Ex.C2 assumes importance in the case on hand. Ex.C1/Report depicts that there is a road-cum-tank bund runs from West-East i.e.

Budawada to Pavuluru village shown as “R” in his plan/Ex.C2. The report discloses that plots P1 to P12 shown in his report are belonging to plaintiffs shown as “A series” in the plaint plan whereas “R” series shown in his report are belonging to defendants shown as “Plot-B” in the plaint plan. Plots of plaintiffs are lower at about 2 ½ feet than the plots of defendants and they are higher in level on the Northern side and lower in level on the southern side. The bund shown as “X1 to X4” in Ex.C2 plan is 1 foot in height, 388 feet in length and 2 feet in width. On the

North-West corner of plot-R1 i.e. Plot-B shown in the plaint plan, there is 13 feet bund marked as “X1X2” in his plan i.e. XX1 shown in the plaint plan. Through “S1” sluice water flows to the defendants plots through “X5-X4” filed canal and there is a bund on either side of “X5-X4”. The “S” is the said sluice and “X2-X3” is the said bund as shown in the plaint plan. “X5-X4” filed canal is 2 feet higher in level than “B2” burial ground.

39.The report of the Advocate-Commissioner under Ex.C1 further goes to show that to the north of “R” series plots i.e. plot-B shown in the plaint plan belonging to defendants, there is a burial ground which is shown as “B1” in his plan/Ex.C2 and said “Plot-B1-burial ground “ is slightly slope from East to West. To the west of defendants plot, there is a burial ground shown as “B” in Ex.C2/plan. The said burial ground is 2 ½ feet lower in level than plots of the defendants.

40.The Ex.C1 & Ex.C2 further goes to show that “X5-X4” field canal is 2 feet higher in level than “B2” burial ground situated on the north of the “A” series plots of the plaintiffs.. There are water pipes connected to the southern side of defendants plot as an outlet for water flow. There is “C” marked bund on the East of “A” series plots of the plaintiffs. “S6” sluice is connected to the said bund and the same was created by the plaintiffs. On the eastern side of plaintiffs plots, there is a vague “V1” as shown in Ex.C2/plan i.e. “V1” shown in the written statement plan. On the south of plots of the defendants, there is another vague “V2” i.e. “V2” shown in the written statement plan.

41.It is pleaded by the defendants that plaintiffs without any manner of right, highhandedly raised a bund in Plot-B2 between X6 and

X7 and closed the vent between “X2-X3” and caused obstructing usual and nature flow of water from Plot-B1 into V1 vague through Plot-B2 as shown in the written statement. Though it was suggested to Dws.2 and 3 that plaintiff never raised the bund at a height of 3 feet, in a width of 15 feet and a length of 35 feet in “B2 marked land of the written statement plan in between “X6-X7” and closed the vents between “X2-X3” and caused obstruction to the flow of water to “B1” into vague shown as “V1” in the written statement plan through “B2 marked plot” , from the categoric admissions made by PW1, it is manifest that he raised bund at

X6-X7 2 years prior to filing the suit. It is not the specific case of the plaintiffs that they raised bund 2 years prior to filing the suit. They suppressed the said fact in their pleadings.

42.Further more, it is the specific case of the plaintiffs that their lands and lands of defendants are even. Contrary to the same, PW1 has categorically testified that land belong to 1st defendant is 2 ½ higher than his land. PW3 also categorically testified that as the plaintiff arranged pipes at a height of 8 feet to the west of his land, the water falls in the poramboke situated on the north of plaintiffs land not flows towards

East. The observation made by the Advocate-Commissioner/PW4 in Ex.C1 report and Ex.C2/plan would clinchingly show that the lie of lands are from West to East , the water flows in survey No.119 is from West to

East, not from East to West as claimed by the plaintiff.

43.As can be seen from the record, this court while closing

Advocate-Commissioner’s petition I..e I.A.No.871/2003 on 4.12.2003, giving liberty to both parties to file objections on 18.12.2013 and with the above observations, the said petition was closed. However, the learned counsel for the defendants filed objections on 25.2.2004 without seeking extension of time from the court raised some objections on the report of the report of PW4/Advocate-Commissioner. In the light of foregoing discussion on the report and plan of the advocate commissioner/PW4 and evidence of Pws.1 and 3, Dws.1 to 3, those objections cannot be taken into consideration and over-ruled.

44. Mandatory injunction is dealt with in Sec.39 of the Specific

Relief Act which says that when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. For claiming mandatory injunction, the plaintiffs have to establish a strong prima facie case in their favour. The plaintiffs also to establish that the balance of convenience in granting injunction lies in their favour and in case the injunction is refused, irreparable injury would be caused to the plaintiffs.

45. It is no doubt plain that such a mandatory injunction can be granted to restore the status quo existing on the date of the suit. But the issue of such an injunction cannot be claimed as a matter of right nor can it be claimed as a matter of right nor can it be issued as a matter of course. The Court must satisfy itself about the necessity of issuing such a mandatory injunction and unless there are some compelling circumstances or what is ordinarily known as exceptional circumstances, the order in the mandatory form should not be issued. What has to be seen in such cases is whether the injury complained of is immediate and pressing and irreparable, and clearly established by proofs and not acquiesced in by the plaintiff.

46.From the evidence of PW1, it is culled out that the natural lie of water falls into poramboke situated on the north of Plot-B and “A series “ is from west to East, joins into vagu situated on the eastern side of “A series “ I.e “V1-vague as shown in the plan. PW4/Advocate-

Commissioner also observed in his report that water falls in “B1” poramboke has no chance to flow towards “B” marked plot since “B” marked plot is higher in level than “Plot-B1”. Moreover, Pws.1 and 3 also categorically testified that as the plaintiff arranged pipes at a height of 8 feet to the west of his land, the water falls in the poramboke situated on the north of plaintiffs land not flows towards East. In such a case, allegedly cause of Law to the lands of Plaintiffs does not arise. Moreover, the plaintiffs suppressed the entire contents in Ex.A7 as discussed in the preceeding paral.

47.The law is well settled that he who comes to equity must do equity and that he who comes to the court with unclean hands and suppresses material facts and takes inconsistent stands and prevaricates and fails to establish the pleaded case , which is sine qua non, is not entitled to the equitable relief of injunction.

48.So, on a conspectus of evidence on record and in view of my foregoing discussion, it can be safely held that the plaintiffs failed to prove their case by placing cogent and convincing evidence, thereby they are not entitled for the equitable relief of permanent injunction as well as Mandatory injunction. Hence these issues are answered accordingly against the plaintiffs.

Issue No.4:-

49.IN THE RESULT, the suit is dismissed with costs.

Typed to my dictation to the Stenographer of this court in part, typed by me on my laptop in part, corrected, signed and pronounced by me in open Court this the 29th day of May, 2020.

Sd/- K.S.B

Principal Junior Civil Judge,

Addanki.

// APPENDIX OF EVIDENCE // Witnesses Examined For Plaintiffs: PW1 : Eemani Ratnareddy PW2 : Maddumala Chinnabbai (eschewed) PW3 : Eemani Venkata Reddy, S/o.Venkateswara Reddy PW4 : M. Chandra Sekhar For Defendants: DW1 : Eamani Balaramireddy DW2 : Eamani Venkata Reddy, S/o.Hanumareddy DW3:E.Jayarami Reddy.

DOCUMENTS MARKED

For plaintiffs:

Ex.A1 : Title deed book issued by the M.R.O Counter signed by R.D.O Ex.A2 : Cist receipt dt.27.02.1991 Ex.A3 : Cist receipt dt.10.05.2001 Ex.A4 : Cist receipt dt.01.04.1999 Ex.A5 : Acknowledgement from the M.R.O of J.Panguluru for receipt of representation sent by 1st plaintiff. Ex.A6 : Acknowledgment from the District Collector, Ongole for receipt of representation sent by 1st plaintiff Ex.A7 : Agreement dt.22.06.2002 regarding flow of water in between 1st plaintiff and D1 For Defendants: Ex.B1 : Original registered sale deed dt.6.06.1975 executed by Markandeyulu and others infavour of 1st defendant.

Sd/- K.S.B

PRINCIPAL JUNIOR CIVIL JUDGE,

ADDANKI.

// True Copy //

P.J.c.J, Addanki

1O.S.No.127/2008

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE, ADDANKI

Present:- Kalive Suresh Babu,

Principal Junior Civil Judge, Addanki

Thursday, this the 28th day of May, 2020

Original Suit No. 127 of 2008

Singu Veeranjaneyulu, S/o.Thirupathaiah, aged about 74 years, Hindu, Cultivation, S.L.Gudipadu (V) Ballikurava (M), Prakasam District. ...Plaintif

Vs

1. Dhulipalla Suseela,

2. Dhulipalla Gnaneswari (died)

3. Dhulipalla Hanumantha Rao

4. Nallabothu Nagamalleswari (Defendants 3 & 4 are added as Legal heirs of deceased/D2 as per orders in I.A.No.281/2018

dt.10.08.2018)...Defendants

This suit coming on 13th day of March, 2020 before me for final hearing in the presence of Sri P. Ramesh--Learned counsel for the Plaintif and of Sri I. Hanumantha Rao-Learned counsel for Defendants 1, 3 and 4 and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:- // JUDGMENT //

This suit is filed for Perpetual Injunction restraining the defendants, their men and agents from in any manner whatsoever interfering with the plaintif’s peaceful possession and enjoyment over the plaint schedule property.

2. The averments of the Neat copy of amended Plaint dt.08.02.2014, in nut-shell are as follows:-

Plaint Schedule property is the vacant site of Ac.0.06 cents land comprised in Sy.No.115 of S.L.Gudipadu Village. Originally, it was Ac.0.10 cents of land. Plaintif had purchased Ac.0.04 cents of land under an agreement of sale dt.22.03.1977 from Konatham Chenchaiah. Plaintif’s 2O.S.No.127/2008 brother namely Venkata Narayana had purchased Ac.0.04 cents of site from

Konatham Venkaiah on 16.06.1958 under an agreement of sale. Though the vacant site was purchased under two agreements of sale, when it was measured, it was Ac.0.10 cents. Plaintif’s brother Venkata Narayana was unmarried and died intestate. Plaintif has succeeded all the properties of his brother including the vacant site purchased by him from Konatham Venkaiah.

So that, the Plaintif has been in possession and enjoyment of Ac.0.10 cents of vacant site within the specified boundaries. Out of Ac.0.10 cents of land,

Plaintif had donated Ac.0.04 cents of site to Elementary School in

S.L.Gudipadu Village for the purpose of passage on the request of Villagers.

The Plaintif has been in possession and enjoyment of Ac.0.06 cents of vacant site and he has been utilizing the same for his domestic purpose.

(ii) Defendants 1 and 2 on the behest of his enemies made their attempt to obtain possession certificate from the revenue officials in respect of the plaint schedule property and attempted to vacate the plaintif from the plaint schedule property. After knowing the same, the Plaintif had got issued a legal notice to the Tahsildar, Ballikurava by requesting him not to issue any possession certificate to the defendants as the plaint schedule property is exclusively belonging to him. The persons, who executed agreement of sale or their legal representatives are not disputing the physical possession and enjoyment of the plaint schedule property by the plaintif.

(iii) The defendants who have nothing to do with the plaint schedule property, have been proclaiming in the village that they would interfere with the peaceful possession and enjoyment of Plaintif over the plaint schedule property, Plaintif is entitled to protect his possession under section 53 (A) of Transfer of Property Act against defendants, who are 3rd parties to the agreement of sale. Hence, Plaintif has constrained to file the 3O.S.No.127/2008 suit.

3. 2nd defendant filed his written statement and the same was adopted by 1st defendant resting the suit claim on several allegations and contended inter alia that the defendants 1, 2 and their Mother-in-Law namely

Dhulipalla Venkayamma had each got Ac 0.04 cents of site including the plaint schedule property and they have been in possession and enjoyment of their respective plots since long time and utilizing the same for keeping manure heap and tethering cattle. Defendants and their Mother-in-Law intended to construct houses in the sites, applied to the Tahsildar, Ballikurava for House site possession certificates in their favour. After due enquiry,

Mandal Revenue Officer, Ballikurava had issued house site possession certificate in their favour in respect of their extents on 30.05.2000. Mother-in-

Law of defendants is no more. During her life time, she relinquished her right in respect of her Ac.0.04 cents of site owned by her in favour of this defendant.

(ii) As there was no proper passage to the Elementary School in their village, on the request of the villagers, husband of this defendant by name Hanumantha Rao gave consent for formation of road upto the school as he is no other than the son of said Venkayamma. The said Hanumantha Rao with due consultation of his wife I.e, 2nd defendant herein, gave his consent to take two cents of land out of Ac.0.04 cents of land owned by his mother/Venkayamma for laying a road upto the school.

(iii) Subsequently, as Plaintif was making attempts to meddle with the remaining property of the defendants, they made a representation to the

Tahsildar, Ballikurava. The said Tahsildar served notice to the Plaintif. After due enquiry the then Tahsildar, passed an order in Rc.DT/388/2007, dt.01.04.2008, wherein the Tahsildar reiterated that Plaintif has no right over 4O.S.No.127/2008 the remaining property I.e, Ac.0.10 cents.

(iv) The Plaintif came to the Court with unclean hands by suppressing the proceedings of the Tahsildar. Defendant is not aware about the issuance of any legal notice by the Plaintif to the then Tahsildar. Plaintif was never in possession and enjoyment of the plaint schedule property. There is no cause of action in filing the suit, as defendants are true owners of the plaint schedule property and prayed to dismiss the suit with costs.

(v) Pending lis, 2nd defendant died intestate. Defendants 3 and 4 being his legal heirs were brought on record as per orders in I.A.No.281/2018, dt.10.08.2018. A memo was filed on behalf of defendants 3 and 4 adopting written statement of 2nd defendant.

04.On the strength of the respective pleadings, the following issues are settled for trial:-

1. Whether the Plaintif is in possession and enjoyment of the plaint schedule property as on the date of filing the suit?

2. Whether the Plaintif is entitled for Permanent Injunction as prayed for?

3. To what relief?

05.On behalf of Plaintif, himself was examined as PW1 and got marked Ex.A1 to Ex.A6. Bandla Krishnamurthy, Ravulapalli Govindu and

M.P.Basavalingam were examined as PWs2 to 4 respectively. On behalf of the defendants, 2nd defendant was examined as DW1 and Ex.B1 to Ex.B4 were marked. 3rd defendant was examined as DW2. Sri P. Madhusudhana Rao, the

Tahsildar was examined as DW3 and got marked Ex.B5 to Ex.B8.

5O.S.No.127/2008

06.ISSUE Nos.1 & 2:-

It is settled law that in a suit for permanent injunction to restrain the defendants from interfering with plaintif’s possession, the plaintif will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendants tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintif may prove physical or lawful possession, either of himself or by through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally , the said ratio was laid down by the Hon'ble Apex Court in a case between

Anathula Sudhakar Vs. P.Buchi Reddy reported in 2008 Law Suit(SC)

1186. In view of the settled law, the plaintif has to prove that he has been in peaceful possession and enjoyment of the property as on the date of the suit for the relief of permanent injunction..

07.To prove the case of the plaintif, himself was examined as PW1 and got marked Ex.A1 to Ex.A6. It is the evidence of PW1 that he purchased

Ac.0.04 cents in Sy.No.115 of S.L.Guydipadu under Ex.A1 and another four cents of land by his brother Venkatanarayana under Ex.A2. According to

PW1, the boundaries for property covered under Ex.A1 and A2 I.e, Ac.0.10 cents is East : Land belongs to Plaintif including a house, South: Ravulapalli

Guravaiah, West : Kolluri Kotaiah and others and North: Alakuntla Pedda

Ankamma and Chinna Ankamma. His brother Venkata Narayana died on 30.8.1966.

6O.S.No.127/2008

08. According to PW1 one A. Pedda Raaghavaiah and Peddasetti

Anjaiah were acted as attestors in Ex.A1. PW4 had scribed Ex.A1. PW1 has categorically testified that in Ex.A5 he mentioned that he has got Ac.0.10 cents of site which was purchased by him on 16.01.1958. It was suggested to

PW1 that property covered under Ex.A1 and Ex.A2 and the plaint schedule property are not the one and the same and so also his Sister Venkayamma had got Ac.0.12 cents of site in the suit survey number, out of it she gave four cents each to defendants 1 and 2 and remaining four cents was kept with her.

09. According to PW1 he got issued a legal notice under Ex.A3 to the

Tahsildar and requested him not to issue any possession certificate for D1 and

D2 as the property belong to him.

10. PW2-Bandla Krishna Murthy corroborated the evidence of PW1.

According to him, the Plaint schedule is bounded by East : Annem

Subbalakshmi, South: Road, West: Pakalapati Nageswara Rao and North:

Kanuri Anjaiah. The evidence of PW2 is corroborating with the boundaries recited in the plaint schedule . It is the evidence of PW2 that the brother of the Plaintif died as unmarried.

11. PW3-Ravulapalli Govindu, according to him the Plaintif and his brother Venkata Narayana had purchased Ac.0.04 cents of land each under

Ex.A1 and A2 in Sy.No.115 of S.L.Gudipadu Village. The brother of the Plaintif namely Venkata Narayana died unmarried. His entire estate including the plaint schedule was devolved on the plaintif. Out of the Ac.0.10 cents of site, plaintif gave vacant site from North to South in a width of 14 feet from his house wall by leaving two feet from his house wall for the purpose of laying a road to the school in his village. In the cross examination, PW3 has 7O.S.No.127/2008 categorically testified that in the year 2001 the suit schedule site was measured by Mandal Revenue Officer with the help of surveyor. The suit schedule site is a vacant site.

12. PW4-M.P. Basavalingam ,the scribe of Ex.A1, according to him one

Peddisetti Anjaneyulu acted as one of the attestor in Ex.A1 and he affixed his signature on Ex.A1 as scribe. In the cross examination, PW4 has categorically testified that the vendor under Ex.A1 namely K. Chennaiah and attestors therein were present at the time of execution of Ex.A1. It was suggested to

PW4 that Ex.A1 was not scribed on 22.03.1977 but it was scribed before filing the suit. From the suggestion put to PW4, it can be inferred that defendants are not denying the scribing of Ex.A1 by PW4 and attestation by attestors therein.

13. On the other hand, 2nd defendant was examined as DW1, who filed her chief affidavit in lieu of chief examination, which is the replica of averments made in the written statement and got marked Ex.B1 to Ex.B4. It is the evidence of DW1 the disputed site is Ac.0.12 cents bounded by East:

Plaintif’s land. North: Kalluri Anjaiah, West : Kakalapati Nageswara Rao and

Kalluri Anjaiah and south: Pathway leads to school.

14. It is her evidence that Ac.0.12 cents of disputed site belonged to her mother-in-Law/Venkayamma who got the same from her ancestors. The joint family of her mother-in-law and her sons were divided two years after her marriage including the disputed property. She was given four cents out of

Ac.0.12 cents of disputed site, D1 was given Ac.0.04 cents and her mother-in- law kept remaining Ac.0.04 cents. The disputed site was in possession and enjoyment of her mother-in-Law Venkayamma, till it was given to her and D1.

8O.S.No.127/2008

About 8 or 9 months back, she made a representation to the Revenue Officials for issuance of possession certificate and the Government Officials visited the disputed site on her requisition for enquiry and Government Officials made due enquiry in the presence of Plaintif. She scribed her signature on the report prepared by Government Officials. As per the measurements taken by the Government Officials, the disputed site is Ac.0.12 cents. About five or six years back, she gave Ac.0.2 cents of site for the purpose of path way to the school and she signed on the document. The said document was given to her counsel. The school building was constructed about four years back.

15. 3rd defendant was examined as DW2. According to him, the property covered under Ex.B1 to Ex.B3 is their ancestral property, which is a single plot, but three pattas were given for the purpose of constructing houses. They did not make any application to Housing Board seeking financial assistance. According to him about 10 or 11 years back he gave Ac.0.2 cents of land out of property covered under Ex.B1 to Ex.B3 towards passage for the said school. One year prior to death of his mother/ Venkayamma, she settled four cents of land covered under Ex.B3 to DW1. DW2 has categorically admitted the signature on Ex.A5 belonged to him. It is the evidence of DW2 that Government Officials obtained his signature on Ex.A5 by cheating. If the version of DW2 is true,what prevented him to take any steps against the said officials. Admittedly, he did not issue any legal notice questioning the same.

It was suggested to DW2 that Plaintif has been in possession and enjoyment of plaint schedule property for storing manure heap and tethering cattle.

16. DW3-Sri P. Madhusudhana Rao, the Tahsildar, Ballikurava, according to him, the land covered under Ex.B5 to Ex.B7 is Ac.0.12 cents. Out of Ac.0.12 cents, two cents was donated for the purpose of passage to the M.P.

9O.S.No.127/2008

Elementary School,S.L.Gudipadu. He categorically admitted that there is no endorsement on Ex.B5 to Ex.B7 that beneficiaries received possession certificate. He pleaded ignorance prior to enquiry conducted under Ex.B8,

Plaintif got issued any legal notice dt.23.05.2007 to the then Tahsildar,

Ballikurava not to issue any possession certificate by claiming that the plaint schedule property is belonging to him.

17. According to DW3, Ex.B8 does not disclose defendants 1 and 2 have been in possession and enjoyment of their respective extents under

Ex.B5 and Ex.B6 till the date of enquiry under Ex.B8. As per Ex.B8 file defendants 1 and 2 made their representation to conduct survey in pursuance of possession certificate and allot the extents. As per the requisition submitted by the Plaintif, he reported no objection to give 11 feet road towards passage to the school out of tent cents of land situated in Sy.No.115 of S.L.Gudipadu Village. It was suggested to DW3, no possession certificates under Ex.B5 to Ex.B7 were given to D1, D2 and Dhulipalla Venkayamma and they were never in possession and enjoyment.

18.The learned counsel for the plaintif while advancing arguments has contended that this suit is filed for grant of perpetual injunction against the defendants 1 and 2 with regard to plaint schedule property I.e Ac.0.06 cents of vacant site situated in S.No.115 of S.L.Gudipadu village. There is no denial with regard to boundaries and extent. It is the specific case of the plaintif that the property described in the plaint schedule is a vacant site of

Ac.0.06 cents. Plaintif had purchased Ac.0.04 cents under Ex.A1 on 22.3.1977 from Konatham Chenchaiah, his brother/Venkata Narayana had purchased another Ac.0.04 cents of land from Konatham Venkataiah under Ex.A2 on 10O.S.No.127/2008 16.06.1958. Brother of the plaintif died unmarried. There is no dispute that brother of the plaintif namely Venkata Narayana died unmarried.

19.The learned counsel for the plaintif has vehemently contended that plaintif had donated Ac.0.04 cents under Ex.A5 for Elementary School in

S.L.Gudipadu village towards passage. Ex.A5 was attested by number of officials including 3rd defendant/DW2 who is the husband of 2nd defendant.

DW2 also categorically admitted that the signature on Ex.A5 belonged to him.

The remaining Ac.0.06 cents is the disputed property.

20.The learned counsel for the plaintif further contended that the plaintif had got issued a legal notice under Ex.A3/23.5.2007 to the Tahsildar and the same was received by him under Ex.A4/Postal acknowledgment. It is the evidence of DW2 that the property covered under Ex.B1 to Ex.B3 is their ancestral property which is beyond their pleadings. PW1 is the plaintif herein,

Pws.2 and 3 are the third parties and residents of S.L.Gudipadu village and they categorically testified that the plaintif is in possession and enjoyment of the plaint schedule property. PW4 is the scribe of Ex.A1 has categorically deposed about scribing Ex.A1. According to DW1, the disputed property is 12 cents belonged to her mother-in-law who got the same from her ancestors.

DW1 was given 4 cents out of 12 cents, 1st defendant was given remaining 4 cents. There is no pleading as such. With regard to possession, there is no iota of document is filed into the court by the defendants to substantiate their contentions.

21.The learned counsel for the Plaintif further contended that the entire file placed before this Court by DW3 under Ex.B8 clearly discloses that

Plaintif along with his representation dt. 26.03.2007 annexed Ex.A1, A2 and 11O.S.No.127/2008

A5 and he was present before the M.R.O. The plaintif requested the Tahsildar to grant time to appear before him on the ground that he wanted to get operation to his right foot.The Mandal Revenue Officer without giving opportunity to the Plaintif had created Ex.B4 at the instance of D1 and D2 as if plaintif not placed any material to show his right over the suit schedule property came to conclusion that it is the property of the defendants.

22.The learned counsel for the plaintif further contended that Ex.B4

dated 1.4.2008 was subsequent to notice got issued by the plaintif under

Ex.A3 dated 23.5.2007 and Ex.B4 was pressed into service. The report given by the Mandal Revenue Officer under Ex.B4 is subsequent to the notice got issued by plaintif under Ex.A3. According to Ex.B4 also, the defendants are not in possession and enjoyment of plaint schedule property. There is no specific denial about Ex.A1 and Ex.A2 in the written statement by the defendants. An evasive denial would amount to admission of allegations made in the plaint in terms of Order 8 Rule 5 of Civil Procedure, defendant is required to deny or dispute the statements made in the plaint categorically. A person in possession though without title, can resist interference from another who has no better title than himself and get injunction.

23.The learned counsel for the plaintif has further contended that though the suit for specific performance of the contract is barred by limitation, plaintif has right to invoke doctrine of part performance and protect his possession under Section 53-A of the Transfer of property Act even by instituting a suit seeking the relief of perpetual injunction. In support of his contentions, he placed reliance on the following decisions:- 12O.S.No.127/2008 (1) Jaspal Kaur Cheema and another Vs. Industrial Trade Links and

others etc reported in 2017 (6) ALD 52 (SC) at para-8 held as

under:- “Para-8:-In terms of Order 8 Rule 3 of the

Code of Civil Procedure, 1908( for short ‘ the

Code’, a defendant is required to deny or dispute the statements made in the plaint categorically, as evasive denial would amount to an admission of the allegation made in the plaint in terms of Order 8 Rule 5 of the Code. In other words, the written statement must specifically deal with each of the allegations of fact made in the plaint.

The failure to make specific denial amounts to an admission. This position is clear from the decisions of this court in Badat and

Company V. East india Trading Company, (1964) 4 SCR = AIR 1964 SC 538; Sushil

Kumar Vs. Rakesh Kumar, (2003) 8 SCC 673= AIR 2004 SC 230 and M.Venkataramana

Hebbar (dead by Lrs) V. M.Rajagopal Hebbar, (2007) 6 SCC 401= AIR 2007 SC (Supp) 43”.

(2) Kalva Komuraiah and another V. Kalva Boddaiah (died) per L.Rs of the Hon’vble High Court of Judicature in CRP

No.5484 of 2017 held as under:-

“From the above pleading, it is clear that there is

no pleading in the written statement and

adducing evidence without pleading is

impermissible and ought to be avoided by the

courts in conducting the trial”.

(3) P.Buchi Reddy & Ors Vs. Ananthula Sudhakar reported in 1999(1) LS (AP) 460 held as under:- 13O.S.No.127/2008

“Para-13:… It is also well settled that a person in

possession, though without title, can resist

interference from another who has no better title

than himself and get injunction...”

(4) Kurruvakotpaty Chinna Linganna Vs. Alla Mallikarjuna

Reddy and others reported in 2011 (5) ALD 317 held as follows:-

“Para: 23. It is true that the doctrine does not confer any title on the person who took possession of the property in part performance of a written contract of sale, but it afords protection to the person against the transferor or any person claiming under him. In the instant case, admittedly, the plaintif obtained possession of the schedule mentioned land in part performance of Ex.A.1-agreement to sell, dated 30.7.1985. Merely because the suit for specific performance of contract is barred by limitation, it cannot be said that he has not been ready and willing to perform his part of contract. The very fact that he paid the entire sale consideration indicates that there was nothing remained to be performed on his part.

The plaintif has not only a right to defend his possession in an action brought by the transferor or any person claiming under him, he can also institute a suit for injunction for the purpose of protecting his possession. The trial court, therefore, obviously in error in holding that since the relief of specific performance of contract is not available to the plaintif as it was barred by time, he is not entitled to protect his possession by filing a suit for permanent injunction against his transferors and the 4th defendant, who subsequently obtained ExB.19 sale deed from the defendants 2 and 3. Both the Courts have found concurrently that the 4th defendant is not a bona fide purchaser for value, without notice of Ex.A.1-agreement to sell.

If that is so, the plaintif can enforce his defence available to him under Section 53-A of the Transfer of Property Act

against his transferors as well as against the defendant

No.4, who obtained the registered sale deed -Ex.B.19

14O.S.No.127/2008

from the defendants 2 and 3 and claiming rights

through them.The defendants, therefore, in the circumstances, indicated hereinabove cannot resist the suit of permanent injunction filed by the plaintif and the plaintif is certainly entitled for a decree of permanent injunction against the defendants, despite the fact that the suit for specific performance is dismissed being barred by limitation. The learned first appellate Court went wrong on this aspect in reversing the decree and judgment passed by the learned trial

Court in favour of the plaintif granting perpetual injunction against the defendants. This is a manifest error of law committed by the first appellate Court, which is in the nature of substantially afecting rights of the plaintif to protect his possession and therefore, it raises a substantial question of law in the second appeal.

24.The doctrine of Part Performance as contemplated by Section 53-A of the Transfer of Property Act can be availed of by the transferee or any person claiming under him. This Section operates as an equitable estoppel against the original owner or any person claiming under him to seek possession of the property which was given to the proposed vendee in part- performance. In the instant case, plaintif had purchased the property covered under Ex.A1 from Konatham Chennaiah and brother of the plaintif under Ex.A2 from Konatham Venkataiah and they are the parties to the suit proceedings. Defendants are not persons claiming under aforementioned

Konatham Chennaiah and Konatham Venkataiah. Facts in the decision relied on by the plaintif and facts on hand are not one and the same. Therefore, the decision in “Kuruvakotapaty Chinna Linganna’s case is not applicable to the instant case.

25.Per contra, it is the contention of the learned counsel for the defendants while advancing arguments that defendants are the absolute owners of the plaint schedule property as per Ex.B1 to Ex.B4. The plaintif has 15O.S.No.127/2008 suppressed the said fact and came to the court with unclean hands for grant of permanent injunction. Ex.A1 and Ex.A2 are not proved by the plaintif. On the other hand, Ex.B1 to Ex.B3 possession certificates would prove possession and enjoyment of the plaint schedule property by the defendants. The evidence of Dw3 also lends support to their case. Evidence of PW4, the alleged scribe of Ex.A1 is inconsistent and uncorroborated with the contents of

Ex.A1. Any lapses on the part of defendants cannot be taken into consideration. The plaintif must prove his possession and enjoyment over the plaint schedule property. Absolutely, there is no iota of evidence is placed on record except Ex.A1 and Ex.A2 to prove the factum of possession and enjoyment over the plaint schedule property and therefore the suit deserves to be dismissed and pray to dismiss the suit with costs.

26. Coming to the documentary evidence, Ex.A1 is the Agreement of

Sale dt.22.03.1977 (stamp duty and penalty was collected by this Court on 16.07.2014 and made an endorsement to that efect as per Stamp Act) would show that Plaintif had purchased Ac.0.04 cents of land from Konatham

Chennaiah, S/o. Venkataiah bounded by East : Compound wall foundation belong to Plaintif: South: vacant site belong to Plaintif, West: vacant site belong to Kalluri Narayanamma and others, North : Alakunta China Ankamma and others Vacant site.

27. Ex.A2 is the Agreement of sale dt.01.06.1958 (stamp duty and penalty was collected by this Court on 16.07.2014 and made an endorsement to that efect as per Stamp Act.) would show that Singu Venkata Narayana,

S/o. Thirupathaiah, who is the brother of the Plaintif herein purchased the four cents of site from Konatham Venkataiah, S/o. Chennaiah and bounded by

East : Remaining land belong to vendor, South : Ravulapalli Guravaiah & 16O.S.No.127/2008

Varapu Pedda Golla; West : Kalluri Kotaiah and North : remaining land belong to Vendor.

28. Ex.A5 is the copy of no objection given by the Plaintif on his behalf and on behalf of his sister/ Venkayamma to the Nodal Officer,

Ballikurava, M.R.O, M.D.O, M.E.O and other Government Officials including

Sarpanch, Ex-Sarpanch, Village Elders, wherein the Plaintif gave four cents of land to the Government for laying a road to the Elementary School from the eastern side road upto Mandal Parishad School for the purpose of passage to the said school. From the recitals of Ex.A5 it is made clear that the Plaintif referred Ex.A2 Agreement of Sale through which he purchased the property in

Sy.No.115 in and extent of Ac.0.10 cents, by leaving two feet site from his house walls, left 11 feet site from North to South towards passage for the school. On a careful scanning of Ex.A5, admittedly DW3 also affixed his signature among 26 persons including Government Officials. PW3 also affixed his signature in Ex.A5 among 26 persons.

29. Ex.A3 is the Office copy of legal notice dt.23.05.2007 got issued by the Plaintif to the Tahsildar, Ballikurava, wherein he referred Ex.A1 and A2 through which he got ten(10) cents of land and reiterated that out of said

Ac.0.10 cents, he gave 11 feet width of site to the Mandal Parishad School for the purpose of Passage in favour of Nodal Officer, Janmabhoomi-cum- Mandal

Parishad Special Officer on free of cost in the presence of M.R.O, M.D.O, M.E.O,

Sub Inspector of Police, Ballikurava, Village Sarpanch, Ex-Saparnach and other village elders under an agreement of contract dt.17.01.2001 I.e under Ex.A5.

It is contended in Ex.A3 that plaintif came to know that defendants 1 and2 are making serious attempts to obtain possession certificate from the

Tahsildar by mis-representation without having right to obtain loan from 17O.S.No.127/2008

Government Authority for construction of house and requested the Tahsildar not to issue any possession certificate or any other certificate in favour of D1 in respect of the notice schedule property. The schedule mentioned in Ex.A3 is tallying with the Plaint schedule and boundaries therein. Ex.A4 is the

Acknowledgment for Ex.A3. Ex.A6 is the Photo would show that there is a manure heap and some bufallos were tethered in the said site.

30. On the other hand, coming to the Documentary evidence, on behalf of the defendants, Ex.B1 is the Possession certificate dt. 30.08.2000(in fact date is 30.5.2000), issued in favour of D2, wherein four cents of land in

Sy.No.115 of S.L.Gudipadu Village was given to her bounded by East: Plaintif,

South: Dhulipalla Venkayamma, West : Pakalipati Kotaia and North : Dhulipalla

Suseela.

31. Ex.B2 is the Possession certificate dt. 30.08.2000 ( in fact date is 30.05.2000) issued in favour of D1. On perusal of Ex.B2, it appears to have drenched in the oil. Except proceedings Rc.No.206/2000 dated 30.5.2000 and signature and seal of the Mandal Revenue Officer, name of the beneficiary, extent and boundaries are not appearing. Similarly Ex.B3 is the possession certificate dt.30.08.2000 (in fact date is 30.5.2000), on perusal of it appears to have drenched in the oil Except proceedings Rc.No.206/2000 dated 30.05.2000 and signature and seal of the Mandal Revenue Officer, name of the beneficiary, extent and boundaries are not appearing. At the time of marking Ex.B2 and Ex.B3 the same were marked subject to objection that documents were strike of. As lightly contended by the learned counsel for the

Plaintif, the beneficiaries names were not found place in Ex.B2 and Ex.B3 and as such no credence be given Ex.B2 and Ex.B3.

18O.S.No.127/2008

32. Ex.B4 is the Served copy of order dt.01.04.2008 in

R.C.Dt.No.388/2007, dt.1.04.2008 addressed to District Collector, Prakasam

District would show that D1 and D2 and Venkayamma were granted

Possession Certificate for four cents each in Sy.No.115 of S.L.Gudipadu Village and Tahsildar obtained report from the Revenue Inspector. As per the report of the Revenue Inspector, Dhulipalla Venkayamma, one of the beneficiary died, second defendant due to financial stringencies shifted to Addanki by selling away her house to Annam Subbalakshmi. 2nd defendant made a representation to show the measurements for the site granted to her in

S.L.Gudipadu Village. 2nd defendant also represented that her mother-in-Law

Venkayamma executed an unstamped agreement conveying the site allotted to her. The enquiry revealed that two cents of land situated on the south of 10 cents was given to school situated on its west. Ex.B4 further show that plaintif claimed that said ten cents belonged to him, but he did not show any document. As one of the beneficiary namely Venkayamma died, the remaining two beneficiaries are daughters-in-law of said Venkayamma, they are entitled for five cents each and if they agree they would get five cents and requested the District Collector to appraise DW2/Dhulipalla Hanumantha

Rao, who is the husband of DW1, to pacify the dispute.

33. Ex.B5 to Ex.B7 are the true copies of Possessions certificates dt.30.05.2000. Issued in favour of D1, D2 and one Dhulipalla Venkayamma, which are produced by DW3 along with true copy of file relating to Rc.

DT..388/2007(contains 66 pages), which was referred in Ex.B4.

34. On a careful scrutiny of Ex.B8 file would show that the Plaintif herein gave representation to the Tahsildar on 26.03.2007, by attaching copies of Exs.A1,Ex. A2 and A5 and contended therein that out of Ac.0.10 19O.S.No.127/2008 cents owned by him in D.No.115 of S.L.Gudipadu Village, he gave four cents to

Government Elementary School for the purpose of passage. He came to know that one Dhulipalla Gneswari wife of Hanumantha Rao I.e, the 2nd defendant herein as if got right applied for issuance of possession certificate.

35.On perusal of said representation contained in Ex.B8 file, the

Plaintif also annexed copies of Ex.A1, A2 and Ex.A5. If really, plaintif failed to furnish any documents at the time of enquiry by the Revenue Inspector as mentioned in Ex.B4 dated 1.4.2008, the representation along with copies of

Ex.A1, Ex.A2 and Ex.A5 would not have available in Ex.B8 file which is the basis for the Tahsildar, Ballikurava who addressed a letter to the District

Collector, Prakasam District under Ex.B4 through which the defendants are basing their claim. From Ex.B8 file it is made clear that at the time of alleged enquiry, Plaintif furnished copies of Ex.A1, Ex.A2 and Ex.A5 to show that he has got Ac.0.10 cents of vacant site and he gave Ac.0.04 cents of site to the school towards passage. The evidence of PW2 also lends support to the case of the plaintif that in the year 2001 the suit schedule site was measured by the Mandal Revenue Officer with the help of Surveyor since the plaintif gave his 4 cents of land under Ex.A5 dated 17.1.2001 ie. in the year 2001.

36. On a reading of written statement, it is not the specific case of defendants that Dhulipalla Venkayamma had got the property covered under

Ex.B1 to Ex.B3 from her ancestors as deposed by DW1 and DW2. Admittedly, there is no piece of document is filed into the Court to show that property covered under Ex.B1 to Ex.B3 belonged to the ancestral property of

Dhulipalla Venkayamma. The evidence of Dws.1 and 2 is contrary to each other and beyond the pleadings. As rightly contended by the learned counsel 20O.S.No.127/2008 for the plaintif, any amount of evidence without any pleading is impermissible.

37.On a careful examination of the evidence on record, it was suggested to PW1 that property covered under Ex.A1 and A2 and plaint schedule are not one and the same. There is no such pleading in the written statement. There is no denial with regard to Ex.A1 and Ex.A2. There is no pleading that Ex.A1 and Ex.A2 are forged and fabricated for the purpose of the suit. When there is no such denial, simple giving suggestions without any pleading cannot be looked into. Any amount of evidence without any pleading is of no use. From the suggestion put to PW1, it can be inferred that defendants are not disputing Ex.A1 and Ex.A2.

38. Admittedly, DW2 affixed his signature on Ex.A5 under which

Plaintif gave consent to give four cents of land towards passage for the

Government School. If really, the plaintif has no right over Ac.0.10 cents of site in S.No.115 of S.L.Gudipadu village, as to why DW2 affixed his signature along with village elders and Government Officials like Mandal Revenue

Officer, Mandal Parishad Development Officer, Sub-Inspector of Police and other officials. Though DW2 testified that his signature was obtained by the officials as attestor by cheating him, if really, signature of DW2 was obtained by Officials on Ex.A5, what prevented him to take steps against the officials.

Admittedly, DW2 did not take any steps or issued any legal notice questioning them. From the evidence of DW2, an inference can be drawn that he had got knowledge about giving Ac.0.04 cents of vacant site out of Ac.0.10 cents of site owned by the plaintif for the purpose of laying road for School in

S.L.Gudipadu.

21O.S.No.127/2008

39. According to DW1, she was given four cents of site out the disputed site of 12 cents, about 8 or 9 months back she made a representation to the revenue officials for issuance of possession certificate,

Government Officials visited disputed site on her requisition and made enquiry. . If the version of DW1 is true, the Revenue Officials might have conducted enquiry in or about January, 2015 as DW1 deposed her evidence

before this court on 2.11.2015 but not under Ex.B4. Be that as it may, the

enquiry conducted by Revenue Officials under Ex.B8 is not reliable and acceptable. Further more, according to DW1, she gave two cents of site to the school for the purpose of path way and she handed over the said document to his counsel. The said document is not placed before this Court to believe her evidence. Contrary to the evidence of DW1, DW2 has stated that about 10 or 11 years back he gave two cents of land out of property covered under Ex.B1 to Ex.B3 towards passage for the school, one year prior to the death of his mother/ venkayamma, she settled Ac.0.04 cents of land covered under Ex.B3 to DW1. Admittedly, there is no piece of document is filed into the court to substantiate their case.

40. On perusal of record, along with suit, the Plaintif had filed

I.A.No.1477 of 2008 under Order 26 Rule 9 of C.P.C sought for appointment of

Advocate Commissioner to inspect the suit schedule property and to note down the physical features by identifying the boundaries mentioned in the plaint schedule. The said petition was allowed on 30.06.2008 by appointing

Sri Y. Sreenivasa Rao as an Advocate Commissioner and he visited the suit schedule property and filed his report and plan on 05.07.2008.

41. As can be seen from the Commissioner’s report, the Plaint schedule property is shown as “ABCD” in his plan and same is a vacant site.

22O.S.No.127/2008

In the said site, there is a boundary stone on the south-west corner. There is a date-palm near the boundary stone. At the time of his visit, she bufaloes were tethering and there is a hayrick. The rough plan discloses that on the east of “ABCD” there is a house of Plaintif, Annamneni Subbalakshmi and 1st defendants house. On the west, house of Kokalapati Nageswara Rao, Sivaiah and others. On the south, there is a panchayath bazaar. On the North, there is a hayrick belong to Kalluri Anjaiah. The boundaries observed by the

Advocate Commissioner in his report and plan are tallying with the plaint schedule and evidence of PW2 coupled with Ex.A3. The report of Advocate

Commissioner as well as Ex.A6/Photo would disclose that some manure heap is in the plaint schedule and she bufaloes were tethering at the time of visit of the Advocate-Commissioner also lends support to the case of plaintif. DW2 also categorically admitted that Advocate Commissioner also visited the suit locality, but he was not present at that time. He categorically admitted that he received notice issued by the Advocate Commissioner. The record discloses that as defendants failed to file objections from 11.8.2008 till 10.12.2008, inspite of availing sufficient time, it is deemed that the defendants had no objections for the Commissioner’s report and therefore the said petition was closed. DW2 also categorically admitted that he has gone through the report given by the Advocate Commissioner. In the light of foregoing discussion, the decisions relied on by the learned counsel for the plaintif lends support to the contentions raised by him.

42.The upshot of the discussion, this court is of the considered opinion that plaintif by placing cogent and convincing evidence proved the factum of possession and enjoyment of the plaint schedule property.

Therefore, this court holds that the plaintif is entitled for equitable relief of permanent injunction as the plaintif has amply proved the factum of 23O.S.No.127/2008 possession over the plaint schedule property which is sine quo non..Hence these issues are answered in favour of the plaintif and against the defendants.

43.ISSUE No.3:-

IN THE RESULT, the suit is decreed with costs by granting

Permanent Injunction restraining the defendants, their men and agents in any manner interfering with the peaceful possession and enjoyment of the Plaintif in respect of the Plaint schedule property

Typed to my dictation to the Stenographer of this court in part, typed by me on my laptop in part, corrected, signed and pronounced by me in open Court this the 28th day of May, 2020.

Sd/- K. Suresh Babu

Principal Junior Civil Judge,

Addanki.

// Appendix of Evidence // Witnesses Examined

For Plaintiff: For Defendants: PW1Singa VeeranjaneyuluDW1Dhulipalla Gnaneswari PW2Bandla KrishnamurthyDW2Dhulipalla Hanumantha Rao PW3Ravulapalli Govindu DW3P. Madhusudhana Rao, Tahsildar, Ballikurava PW4M.P Basavalingam

For Plaintiff : Ex.A1 :Unregistered Agreement of Sale standing in the name of Plaintif executed by Konatham Chennaiah dt.22.03.1997. Ex.A2 :Agreement of Sale executed by Konatham Venkataiah in favour of Plaintif’s brother Venkata Narayana, dt.16.06.1958. Ex.A3 :Office copy of legal notice issued by the Plaintif to the Tahsildar, dt.23.05.2007 Ex.A4 :Postal acknowledgement from Tahsildar. Ex.A5 :Office copy of no objection letter given to the Nodal Officer, Ballikurava on behalf of Plaintif and his sister Venkayamma, dt.17.01.2001. Ex.A6 :Photo with broken C.D

For Defendants:

Ex.B1 :Possession certification dt.30.08.2000 issued in favour of 2nd defendant.

24O.S.No.127/2008

Ex.B2 :Possession certification dt.30.08.2000 issued infavour of 1st defendant by the M.R.O, Ballikurava along with visible copy. Ex.B3 :Possession certification dt.30.08.2000 issued infavour of Dhulipalla Venkayamma along with visible copy. Ex.B4 :Served copy of Order dt.01.04.2008 by Tahsildar, Ballikurava in RCDT/388/2007, dt.01.04.2008.

Ex.B5 :True copy of Possession certificate of D1/Suseela dt.30.05.2000. Ex.B6 :True copy of Possession Certificate of D2/Gnaneswari dt.30.05.2000. Ex.B7 :True copy of Possession Certificate of One Dhulipalla Venkayamma, dt.30.05.2000. Ex.B8 :True copy of file relating to R.C.DT/388/2007, dt.01.04.2008 (Original is compared and returned to the witness) containing Sixty Six (66) pages on both sides.

Sd/- K. Suresh Babu

Principal Junior Civil Judge,

Addanki.

// True Copy //

P.J.C.J, Addanki