UMA BAI Vs. NARAYANA GOKHALE

JUDGEMENT

(1.) This is a plaintiffs' second appeal against the judgments and decrees of .the Courts below. It is necessary to state that the original defendant who was Ballal Ganapathi Bhatta died after the filing of the suit and of the two Legal Representatives brought on record, i.e., defendants 2 and 3, the contesting defendant is the 3rd defendant, only as the relief sought for by the plaintiffs is directed against the well situated in the land that fell to the exclusive share of the 3rd defendant.

(2.) Parties, in the course of this judgment, will be referred to by the ranks assigned to them in the original suit. It is also necessary to state that against some of the findings adverse to the 3rd defendant he also filed an appeal against the order of the trial Court and has succeeded in the lower appellate Court.

(3.) The facts leading to this appeal may be briefly stated as follows: The plaintiffs are agricultursts of Anangalii Vallia and Kadenchi Vallia of Kalmanja village. In the said village Mundaje river flows from north to south. Anangalii and Par.ari Vallias (lands) are on the eastern bank (left bank) of the river and Kudenchi Vallia (lands) are on the western bank (right bank) of the river. On both the banks of the river, there are areca gardens almost running parallel to the river. The northern stretch of areca garden on the eastern side is called as Anangalii Vallia and the southern stretch is called as Parari Vallia. These gardens are said to be there from about 150 years; These gardens entirely depend on the waters of Mundaje river for irrigation. The river water is also used for drinking, washing, etc. To the south of S. No. 4611 of Mundaje village, a Katta (Anekat) is put up across Mundaje river and is known as Anangalii Parari Katta. The Katta is of 'L' shape. The katta which is built across the stream touching the eastern bank is called as Parari Katta and the extension of the Katta at right angles to Parari Katta is known as Anangalii Katta. The expense of putting up these kattas is met by the agriculturists of the aforementioned arecanut gardens. The owners of the arecanut gardens take water by Khanis (field channels). From the water flowing through the Khanis their gardens are irrigated. The plaintiffs have alleged that among themselves they have strict rules as to how the water should be used and the duration of the use etc. In addition to the katta mentioned, another katta by name Kudenchi katta is put up to the west of the island in the river by the agriculturists of Mitha Kudenchi. The katfa put up on the eastern side of the island is known as Kudenchi Katta. The later kattas, Kudenchi katta and Mitha Kudenchi are constructed by the agriculturists who use the water of the river in Karamenja village. According to the plaintiffs, the kattas are constructed at the beginning of December depending on the depth of the water in the river Mundaje and I he work is completed by about the end of December. Initially 0 gap is left between Anangalii and Parari Kattas, i.e., kattas built in the upper reaches of the village so that the waters reach the kattas which are at the Inwer reaches. At the time of Shivaratri the gap is closed. Thus, a reservoir is formed in the river bed itself. The reservoir formed by the erection of Anangalii and Parari Kattas extends in the north until about Sy. No. 63/1 of Mandaje village. The water percolating from the kattas on the upper reaches will reach the kattas at the lower reaches in the river. The approximate distance between the two kattas is about two miles.