LAXMINARAYANA HEBBARA Vs. NARASIMHA HEBBARA

JUDGEMENT

(1.) This appeal by the plaintiffs is directed against the judgment and decree dt. 5 3.1975 passed by the Prl. Civil Judge, Udupi, in R.A.No.19/1971 on his file allowing the appeal and reversing the judgment and decree made by the munsiff, Karkala on 16.12.1970 in O.S.No. 60/1968, on his file, decreeing the suit of the plaintiffs as prayed for.

(2.) The case of the plaintiffs is that they own a Bagayath land Sy. No. 76/2, wherein there are Areca trees aged about 75 years and more. The area was a Bagayath in 1903 as shown in the Survey settlement. They have been also growing crops in the paddy lands. This they can do by putting up a bund across the river Mathibettu which flows in the Reserve forest belonging to the 2nd defendant. Mathibettu river flows to the west inside the said reserve forest on the south. The plaint lands are irrigated from the water of the said Mathibettu river through an ancient mamool channel starting from the said river and proceeding northwards through the said reserve forest and turning westwards into Sy. No. 104/1 and then northwards in Sy. Nos. 104|1, 104|2 and to Sy. Nos. 77/4, 134/6, 134/4, 134/3 and finally into the plaint lands through Sy. Nos.74/2 & 74/4. The said enjoyment of water is as per Mamul from time immemorial by putting a katta across the said river at the point where the said ancient channel starts. This katta is put up every year after the harvest of Karthi crops, l.e., at the end of October or early in November. The said katta is called as 'Chitrabi katta' and the plaintiffs' family has been using the said water openly, uninter ruptedly and as of right for more than 60 years and hence, according to plaintiffs, they and their predecessors have obtained the right by ancient and immemorial use as also by prescription . The garden and the paddy field' have no other source of water. They further averred that they were also entitled to repair the said channel when needed as it is an incidental right.

(3.) They further claimed that the first defendant has no right to put up Chitrabi katta or to take water from the said river. At a considerable distance from Chitrbai katta and to the West of it, the first defendant used to put the Dambe katta across the said Mathibettu river and he was taking water through a channel to his land called Kuchur. But the said channel is quite distinct from the plaintiffs' channel. On 23.10.67, the plaintiffs put up a katta and began to use the water as they had raised suggi crop. The first defendant was ill-disposed towards the plaintiffs and in order to harass them and to cause loss, destroyed the said katta and also a portion of their mamool channel on 8.11.1967. The plaintiffs complained to the police against him and after a local inspection, the police informed the plaintiffs that they could reconstruct the said katta and repair the channel. They attempted to do so on 24.11.1967 when the Forest Guards as well as Forester, probably at the instigation of the first defendant, forcibly took away the 4 spades, pickaxe, one crowbar, 2 bill hooks. 1 basket and tin containing materials and obstructed the plaintiffs from putting up the katta and repairing the channel. Thus the plaintiff are unable to irrigate their lands and have suffered heavy loss.