VITHAL WAMAN ANGADI Vs. JOHN SALDHANA

JUDGEMENT

(1.) This is a defendant's appeal against the concurrent findings of the Courts below.

(2.) The plaintiff brought the suit in the Court of the Munsiff, Khanapur inter alia seeking a declaration that a well situated in the suit schedule property is his absolute property and the claim of the respondents to 2/3 of water in the said well under an instrument created by one Anasuya Anant Diggikar and eight others in favour of defendant No. 1-Mrs. Iyra was not binding on the plaintiff.

(3.) The defendants resisted the suit, based on the title they had acquired by a certain instrument executed by their predecessor-in-title to the property. In fact it is seen from the order of the trial Court that those facts i.e. the plaintiff and defendants had derived their title as successive inheritors of the right, title and interest of the predecessors-in-title who had apportioned the properties between themselves, were not disputed. Therefore, the plaintiff could not lay claim to more than 1/3 share to the water in the well by virtue of the transactions of the predecessors-in-title. In fact, during the course of the trial it was conceded by the plaintiff that he was only a joint owner and not an absolute owner. Thus, the scope of the suit was limited to the right of the plaintiff to draw and make use of the water from the well as and when he desired and it became the cause of action to the suit. In the first instance the suit had come to be decreed by the trial Court as prayed for by the plaintiff. Aggrieved by the decree of the trial Court the defendants preferred an appeal in the Court of the Civil Judge, Belgaum. The said appeal, on the directions issued by this Court, was transferred to the Court of the Prl. District Judge, Belgaum. In the course of the hearing of the appeal by the District Judge, the District Judge suggested that the matter may be settled amicably by providing a separate access to the plaintiff as well as the defendants to go to the well and by permitting them to draw water from the well at different times. On the proposal being agreed to between the parties, for settlement, the matter was remanded to the learned Civil Judge. At that juncture the plaintiff took up a plea that he being an Hindu he was required to take bath atleast once a day and some times more often than that and in summer he was required to take bath even late in the night after return from the work in the factory and as such there should be no restriction on his use of water from the well at all. The Court did not accede to that contention mainly on the ground that the defendants being women, their privacy would be affected if plaintiff was permitted to use the well late in the evenings. In that view of the matter having regard to the fact that 2/3 share was with the defendant and 1/3 share was with the plaintiff, the Court fixed separate timings as well as separate access to the well taking into consideration the provisions made in the Easement Act of 1882 particularly Section 28(g) in regard to passage. Section 28(2), it was found, had no application to the facts of the present case as both parties had independent access to the well and the question of determining the right of one owner in regard to the passage, as such, did not arise. In that circumstance the Court directed the plaintiff to make use of the well between 5 a.m. and 8 p.m. forbidding him from drawing the water after 8 p.m. till 5 a.m. on the following day. Aggrieved by that restriction imposed on him the plaintiff preferred the appeal. The appellate Court also found favour with the reasoning adopted by the trial Court and confirmed the judgment and decree. Therefore, the present appeal by the plaintiff.