ANTHAPPA BHANDARY Vs. POOVU

JUDGEMENT

(1.) The appellant in this appeal as well as in the connected appeal R.S.A. 38 of 1962 was plaintiff in the original suit. It would be convenient to dispose of both the appeal and the cross-objections by common judgment.

(2.) Plaintiff had filed a suit in the Court of the Additional District Munsiff, Karkal (O. S. 72 of 1958) claiming the following reliefs against the defendants for (1) a declaration that the defendants are not entitled to construct any shed or install any oil pump on the northern sides of the tank situated in Survey No. 56/11 in the portions of Survey No. 56/19 and 56/11 belonging to the plaintiff and for possession of the site of the shed put up by defendants in a portion of S. No. 56/19 belonging to the plaintiff; (2) for a mandatory injunction directing defendants to remove the tiled engine shed built by the defendant on the northern side of the tank in S. No. 56/11 and situated in the portion of S. No. 56/19 on the spot which is marked as 'H' in the plan of the Commissioner, Ex. C; (3) for a declaration that the defendants are not entitled to use the water of the tank in S. No. 56/11 to the Suggi and Kolke Crops or cultivation in S. No. 56/14, 2, 3 and 4; (4) for injunction restraining the defendants or their men from using the water of the said tank for those crops and cultivation of those fields; (5) and directing the defendants to pay Rs. 10/- to the plaintiff through court if the defendants do not remove the same.

(3.) The facts of the case briefly stated are: that the plaintiff and defendants are members of Aliyasanthana Family. It is stated that there was a karkar i.e., an agreement dated 26-9-1911 which has been marked as Ex. A-1 in the case between the members of the family under which A Schedule properties were allotted to the branch of the plaintiff, his brother the 3rd defendant and their deceased mother Parameswari. Subsequently by a karkar dated 30-11-23 marked as Ex. A-2 in the case, the plaintiff, 3rd defendant and their mother entered into an agreement by which the first item of the A Schedule properties was allotted to the plaintiff's share and the second item of the said properties was allotted to the branch of the 3rd defendant. It was the case of the plaintiff that the B Schedule properties fell to the share of one Nagu who is represented by defendants 1 and 2 and that defendants 1 and 2 are enjoying two items of property viz., 56/11(b) southern portion field called Nejikala, Survey No. 56/5 field called Hosagadde and Survey No. 56/20 southern portion; the other two properties survey No. 56/20 southern portion and 56/11(b) were taken by them on Chaigeni lease from defendant-3. The plaintiff alleged that under Ex. A-1, the water of the tank, which has been marked as 'A' in the report and plan of the Commissioner, Exhibits C-1 and C-2 respectively, was to be used for raising Suggi and Kolake Crops every year in the fields Survey No. 56/8, 11 and 12 by leading water in the channel to be kept in the said field. According to the Karar Ex. A-1 defendants 1 and 2 are entitled to use the water from the tank A for irrigating their fields called Thimaru (Survey No. 56/8) and the other field taken by them on Chaigeni lease, namely, Nijakala (Survey No. 56/11 (b)). It was the plaintiff's case that originally the water from the tank A was being taken by all the parties from a picota put up to the west of the said tank in S. No. 56/20. Subsequently, about 30 years ago plaintiff shifted his picota to the north of the tank A and he has a been drawing water from that picota since then, defendants 1 and 2 recently installed a water pump worked by oil engine by the side of the plaintiff's picota to the north of the tank and have been irrigating their lands. The installation of the water pump, according to the plaintiff, was done with his permission and it was given only temporarily as licensee. Plaintiff alleged that in the month of November 1952 defendants 1 and 2 threatened to construct a shed in the plaintiff's plot to the north of the tank A where the oil pump had been put up and also to install an electric power pump. In spite of the protests by plaintiff, defendants 1 and 2 have succeeded in putting up a shed on the oil engine as a result of which it has become impossible and dangerous to the plaintiff to bale out water from the tank by means of his picota as a result of which he was unable to raise the suggi crop in his fields and that the crops already raised by him got scorched and he had to sustain loss in respect of them. On the basis of these allegations the plaintiff prayed for reliefs as mentioned above.