SUBRAYA BHATTA Vs. LINGAPPA GOWDA

JUDGEMENT

(1.) This appeal, by the plaintiff in O.S. No. 497 of 1959 on the file of the Second Additional Munsiff, Puttur, is directed against the judgment and decree, dismissing the suit, made by the Principal Civil Judge, Mangalore in A.S. No. 69 of 1966.

(2.) The material facts, briefly, are as follows: The suit has been filed for permanent and mandatory injunctions in respect of water flowing from a spring 'A' through 'khanis' AEX and AEF shown in the Commissioner's sketch marked as Ext.A3. The spring 'A' is situated in S.No.4/1, which is a Government land. From there the water flows through S.No.29/2 through 'khanis" AEX and AEF in the Commissioner's plan and is collected at point 'B', an artificial pond situated in the land of the plaintiff-appellant bearing S.No.33/14. It is the case of the appellant that the defendant 1, who is the owner of S.No.28 has obstructed such flow by various acts, which it is unnecessary to set out in detail. Suffice it to state that S.No.28 is at a much higher level than the pond 'A' and it is not apparent from the record whether the first respondent is a riparian owner in relation to such a natural flow of water. The suit was resisted on behalf of the defendants on several grounds, one of which is that the appellant was not a riparian owner and had not any riparian right to the use of such water. Since the decision in the appeal has been principally based on the answer to the question of riparian rights of the appellant, it is unnecessary to detail the other defences in the suit.

(3.) The trial Court decreed the suit and the lower Appellate Court reversed the said decree on the ground that the plaintiff-appellant was not a riparian owner and he not having established any other easementary must fail. Hence this appeal. The principal argument, in support of the appeal of Sri M. Gopalakrishna Shetty, the learned Advocate, is that it is plain from the Commissioner's sketch and reports, Exts.AS, A4 and A5, that the spring and 'khanis', A, AEX and AEF, respectively were all natural sources of water, and the fact that water was being collected at 'B' on appellant's land would not render the appellant a non-riparian owner. Further, his case- fell squarely under illustrations (f), (h) and (j), together with the second Explanaion, occurring in Sec.7, of the Easements, Act. He further submitted that the learned Civil Judge was in error in concluding that he was not a riparian owner and this was clearly based on a misconstruction of Exhibits A3, A4 and A5.