BHIMAPPA AND ORS. Vs. FAKKIRAPPA AND ORS.

JUDGEMENT

(1.) The 1st and 2nd defendants in O.S. No. 95/1999 on the file of Civil Judge (Jr. Dn.), Laxmeshwar, have come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of plaintiff for the relief of declaration that DCEF portion of canal passes through the land belonging to the plaintiff, therefore the defendants should not interfere with the flow of water through DCEF portion of the canal and also for cost and other incidental relief.

(2.) The dispute between the plaintiff and defendants in this proceeding passes through a narrow path with reference to the riparian rights of both the parties to flowing water through a canal which is in existence between the property of the plaintiff and also that of defendants. Admittedly the canal passing through the said property is more than 100 years old. On the northern side of the canal the property situated is Sy. No. 19/2 and on the southern side of the canal the property situated is Sy. No. 19/3. It is not in dispute that the land bearing Sy. No. 19/2 is measuring 6 acres 2 guntas out of which 1 acre 31 guntas is poth kharab. Similarly the other undisputed fact in respect of Sy. No. 19/3 is it measures 11 acres 36 guntas out of which 2 acres 37 guntas is poth kharab.

(3.) The case of the plaintiff is that the portion of canal which is CDEF in the suit sketch is situated within the poth kharab of 1 acre 31 guntas in Sy. No. 19/2 which belongs to the plaintiff. Therefore the right to maintain the said canal is well within him and the defendants who are the owners of Sy. No. 19/3 situated on the southern side of the canal have no manner of right, title or interest to interfere with the use of said canal water. The suit is filed on 4.8.1999 contending that on 12.7.1999 the defendants tried to deviate the path of water by disturbing the bundh of the canal on its southern side which is northern boundary of plaintiff's property and in the said suit a declaration was sought that the possession and maintenance of canal is with the plaintiff.