K R CHANDRASHEKHARAIAH Vs. PRAKASH

JUDGEMENT

(1.) Respondent in RA. No. 54/2011 on the file of Additional Senior Civil Judge, Chickmagalur, has come up in this miscellaneous second appeal impugning the judgment dated 5.1.2013 so far as it pertains to setting aside the judgment and decree passed in OS. No. 155/2007 on the file of Principal Civil Judge, Jr. Dn., Chickmagalur, and remanding the matter for fresh consideration based on the additional issue framed in the judgment impugned. Brief facts leading to this second appeal are that defendants in original suit have filed RA. No. 54/2011 impugning the judgment passed in original suit so far as it pertains to deciding the right of plaintiff in blocking the stream in respect of usage of water from the stream, which has taken its origin in the land of plaintiff and for usage of the same he has constructed a bund. It is seen that said suit was filed against the Secretary, Doddamagaravalli Grama Panchayath, President of said Gram Panchayath and its members, who have said to have demolished said bund to ensure free flow of stream water. Hence, said original suit was filed for the relief of permanent injunction restraining the defendants from trespassing in to suit schedule property and also in obstructing his right to use said stream exclusively for his benefit. In the said suit, after hearing the parties the trial Court decreed the suit by granting permanent injunction restraining the defendants from trespassing or damaging the bund and water tank, which was constructed to store the water generated from the stream and to stop free flow of same beyond said bund.

(2.) Being aggrieved by the same defendants have preferred R.A. No. 54/2011, wherein first appellate Court after hearing the parties felt that trial Court has not considered the application of provisions of Section 69(5) of Karnataka Irrigation Act, which specifically bar jurisdiction of Civil Court to entertain said suit and also observed that as per Section 2(h) of Karnataka Irrigation Act any channel or water stream is the property of the Government, unless there is any evidence to show that it is belonging to a particular individual and if there is a dispute regarding the usage of water in the channel, such dispute has to be decided by the Irrigation Officer and Civil Court has no jurisdiction to try said suit. In support of said observation it relied upon the judgment rendered by this Court in the matter of Shankaraiah & Anr., vs. Smt. Savithramma,2002 1 KCCR 180. It also held that trial Court should have considered application of Section 295(2) of the Panchayath Raj Act and felt that without looking in to the same the finding arrived at by trial Court is erroneous. Accordingly, remanded the matter back to trial Court for fresh consideration to decide one of the issue that was framed by first appellate Court in the judgment impugned.

(3.) Being aggrieved by the same, respondent in R.A. No. 54/2011 who is plaintiff in original suit has come up in this miscellaneous second appeal contending that judgment impugned in setting aside the decree passed in original suit and remanding the matter is erroneous. So also in framing of an issue regarding maintainability of suit in the absence of any pleading before first appellate Court.