B. NAGARAJU, S/O. LATE GUDIBASAVAIAH Vs. C.K. NANJUNDAIAN, S/G. KEMPAHONAGOWDA, MANDYA MANDYA-571401 AND EXECUTIVE ENGINEER, ELECTRICAL, KARNATAKA ELECTRICITY BOARD, NOW K.P.T.C.L., M.C. ROAD, MANDYA-571401

JUDGEMENT

(1.) THE appellants have challenged the Judgment and Decree of the first appellate Court, allowing the appeal of respondent No.1 and granting a decree in his favour for the relief of declaration and mandatory injunction. The facts relevant for the purpose of this appeal in brief are as under: The parties are referred to as they were referred in the original proceedings, for the sake of convenience. The appellants herein are defendant Nos.1 and 2, whereas respondent No.2 is defendant No.3 and respondent No.1 is the plaintiff, who instituted the suit for the relief of declaration and mandatory injunction. The suit property i.e., Sy. No.54 new No.697 of Gutlu village was the Government Land. One acre out of this survey number was granted to one Boraiah, who sold the said land i.e., the suit property in favour of the plaintiff under a registered Sale Deed dated 15.03.1969 under Ex.P14. As the grant of land was set aside, the plaintiff sought for grant of the land on the ground that he is in possession of the suit property under the Sale Deed. It was granted to the plaintiff vide Order in No.LND.cr.659/78 -79, dated 08.12.1979. As averred by the plaintiff, there is a open well in the corner of the suit property and he was using the water for growing crops. The plaintiff had given a concession/permission to use the water in the open wall to the father of defendant Nos. 1 and 2 and the lands of defendants 1 and 2 are on the eastern side of the suit property. Both the plaintiff and father of defendant Nos.1 and 2 had installed pump -sets to draw water and electricity supply was taken to the pump -sets. In due course of the time, as the water in the open well was not sufficient, the plaintiff terminated the license to defendant Nos. 1 and 2 to draw the water by issuing a notice. As defendant Nos. 1 and 2 did not comply with the said notice, the plaintiff was constrained to institute the suit for declaration that defendant Nos. 1 and 2 have no subsisting right to draw water from the open well and for mandatory injunction to remove the pipe line, the pump -set installed in the pump house and a direction to defendant No.3 to stop supply of electricity to the pump house of defendant Nos. 1 and 2 Defendant Nos. 1 and 2 filed their written statement denying the averments and it is their specific claim that the open well was sunk at the costs of the plaintiff and their father and that it is a common wall. So also, they contend that there is no relationship of licensor or licensee and they do not admit the execution of any document permitting them to draw the water. Furthermore, it is their contention that the open well is not in the land bearing Sy. No.S4/New No.697 and that the well has been sunk in the Government Land for which both the parties have incurred expenses. The said defendants also contend that they have an equal right in the common well to draw the water to their land and therefore, they contend that the plaintiff has no authority to state that they are the licensees and the termination of license is illegal and has no sanctity of law. They contend that their father was an illiterate and he was just knew to put his signature and was not able to read a document and taking the disadvantage of this position, the plaintiff has created a false and fictitious document. On these grounds, he has sought for dismissal of the suit. Defendant No.3 filed his written statement denying the allegation made, but agreed to abide by decision of the Court, as the lis is between the plaintiff and defendant Nos. 1 and 2. On the basis of these pleadings, the trial Court framed the issues. The parties went for trial. The plaintiff examined himself as P.W.1 and 2 witnesses P.Ws.2 and 3 and in their evidence documents Exs.P1 to 20 were got marked. Defendant No.1 was examined himself as D.W.1 and 2 witnesses D.Ws.2 and 3 and in their evidence documents Exs.D1 to 12 were got marked. The trial Court after hearing learned counsel for the parties and on appreciation of the material on record, dismissed the suit. Aggrieved by the Judgment and Decree, the plaintiff preferred an appeal in R.A. No.203/2005 and defendant Nos.1 and 2 preferred an appeal in R.A. No.204/2005 against the said findings. The first appellate Court clubbed both the appeals and after hearing learned counsel for the parties, allowed the appeal of the plaintiff filed in R.A. No.203/2005 and dismissed R.A. No.204/2005 vide Common Judgment and Decree dated 09.12.2011. Aggrieved by the Judgment and Decree of the first appellate Court, defendant N35.1 and 2 are in the appeal before this Court.

(2.) THIS Court on 13.07.2012 has raised the following substantial question of law for consideration: Whether the first appellate Court committed an error in interpreting the documents -Exs.P1 and Ex.D1 and thereby erred in reversing the Judgment and Decree of the trial Court?

(3.) IT is the contention of learned counsel for the appellant that there is no reference of well in the grant Order -Ex.P2 and the Sale Deed -Ex.p14 and therefore, he contends that, the Courts below committed an error in holding that the open well is in Sy. No.54 i.e. the suit property. He submits that the open well is in the Government land and both the parties have sunk well by incurring the expenses equally and have a equal right to draw the water from the said open well for supply of the same to their lands. He also submits that there is no relationship of licensor or licensee between the parties and the document -Ex.P1 is a concocted document and some alterations have been made in the said document se as to suite the purpose of the plaintiff and therefore, he submits that Ex.P1 cannot be relied on for any purpose. Alternatively, he submits that Ex.P1 confirms an equal right to draw water from the suit well and this authority of drawing water from the well cannot be terminated by such a notice. Per contra, learned counsel for respondent No.1 submits that the question raised by this Court is not a substantial question of law and as there are concurrent findings that the well is situated in Sy. No.54, the appellant has no right to challenge the said finding. Furthermore, he submits that the well is sunk by the plaintiff at his own costs and drawing the water from the said well was by way of a license and the said license having been terminated, defendant Nos.1 and 2 have no right to draw the water after termination of the license. He also submits that defendant Nos.1 and 2 do not admit the very execution of Ex.D1, now cannot contend a flow of inherent right under the said document and that they have an equal right to draw water from the said well. On these grounds, learned counsel for respondent No.1 has sought for dismissal of the appeal.