BICHAL HANUMANTHAYYA Vs. BICHAL YENKATASWAMY

JUDGEMENT

(1.) This is a 1st defendant's second appeal against the divergent findings of the Courts below. The appellant was the 1st respondent herein. The 2nd respondent (2nd defendant) was a formal party as he was the tenant at the relevant time cultivating the land of the 1st defendant-appellant. In the course of this judgment parties will be referred to by the ranks assigned to them in the trial Court.

(2.) Plaintiff filed O.S No. 31/71 in the Court of the Munsiff, Manvi. The suit was for an injunction restraining the defendants from growing irrigated paddy crop in Sy No. 480/1 so that the fruit trees grown by the plaintiff, the adjoining owner of Sy No. 480/2 (AA) measuring about 2 acres would not be affected by such cultivation when he had painfully nurtured and reared varieties of fruit trees yielding fruits on the date of the suit.

(3.) The suit prayer for perpetual injunction was resisted by the 1st defendant inter-alia on the grounds that the Court had no jurisdiction in view of S. 69 of the Karnataka Irrigation Act, 1965 in as much as the allegation that the 1st defendant was growing paddy in his land in violation of S. 32 of the Karnataka Irrigation Act was a matter for the authorities under that Act to deal with and not for the Court to interfere ; that the plaintiff's land was on a higher level and there fore no water would affect the roots of the fruit trees in his land by the cultivation of paddy in the 1st defendant's land; that the fruit trees in the plaintiff's land were not eight years old; that the defendants had made proper arrangements for drainage of percolated water and therefore the apprehension of the plaintiff that damage would be caused.tp the fruit trees was ill founded ; that water requirements of paddy crop and the garden crop was the same and therefore the 1st defendant was entitled to raise paddy crop after seeking permission from the concerned authority. It was also urged that the suit was bad for non-joinder of necessary party, viz., the Irrigation Officer under the Karnataka Irrigation Act, 1965.