NEELAMANAVAR NAGAMMA Vs. NEELAGALLU VEERANNA DEAD

JUDGEMENT

(1.) This is plaintiffs second appeal arising out of judgment and decree dated 28-11-1984 delivered by Civil Judge, Hospet, in Regular Appeal 6 of 1978, whereby, the learned Civil Judge has, allowed the defendants' Appeal No. 6 of 1978 after having reversed the judgment and decree dated 3-8-1974 delivered by the Principal Munsiff, Hospet, in O.S. No. 319 of 1965 and thus, the lower Appellate Court dismissed the claim of the present appellant-plaintiff in the regular suit for declaration, injunction and rectification of the documents. According to the plaintiffs case originally the defendant 1 in the appeal and husband of defendant 2 were brothers and they have been related to each other as mentioned in the plaint. According to the plaintiffs case, Survey No. 24 originally belonged to the ancestors of defendants 1 to 9 and it has been sub-divided into various portions as mentioned in the sketch to Schedule A to the plaint. According to the plaintiffs case in a portion of Survey No. 24-F and I, there was a well and there were two water courses coming North to East. According to plaintiffs case, the right to take water from well in question situate in Survey No. 24-1 were shared among co-owners in definite shares. The plaintiffs case is that the defendants 6 to 8 owned Survey No. 24-D and E. The defendants 6 to 8 was originally owned Survey No. 24-D and E. They mortgaged Survey No. 24-D to defendant 10, i.e., husband of the plaintiff. The plaintiffs case is that defendants 6 to 8 had 1/6th share in the well and in the right to take water from the well. The plaintiff's case is that defendants 6 to 8 sold the Survey No. 24-D to one Gangamma and Survey No. 24-E to defendant 11-Bheemappa. Both sale deeds are dated 5-12-1955 (which are Exhibits P-13 and P-14). According to the plaintiffs case, defendants 6 to 8 also transferred by sale their share in the well or to take water in the well to Gangamma and defendant 1- Bheemappa and they really sold their shares as 1/12 but by mistake it was mentioned as 1/6. They have really sold 1/12 share to each of the Vendees, i.e., 1/2 of 1/6 share in the right to take water from the well. Their share according to plaintiffs case were along with the land sold to Gangamma and Bheemappa as the immovable property stated therein Survey No. 24-D and Survey No. 24-E and the right to take water to the vendee under two sale deeds to the extent of 1/2of 1/6 share each individually. In otherwords, each of the said vendee has been given 1/12 share each. The plaintiff has asserted in the plaint that the share in the right to take water that was sold to Gangamma was in respect of and from well known as Jodhu Kapali Bhavi situate in Survey No. 24-1 and F but by mistake in the sale deed, it has been wrongly mentioned as Jodhu Kapali Well in Survey No. 23-A. The plaintiff further alleged that Gangamma in turn vide sale deed dated 20th May, 1958 conveyed and transferred by sale both land, i.e., Survey No. 24-D and right to irrigate and take water from the well, in dispute situated in Survey No. 24-1 and F. But because of wrong descriptions in the sale deed dated 5-12-1955, the well has been described by them as on (wrong) number 23-A and not 24-1 and F. The plaintiffs claim that the plaintiff had been in possession and enjoyment of the suit schedule property and enjoying the usufructs thereof. According to the plaintiff that the land in Survey No. 24-D was irrigated with the water of the well which did run from the well having recourse and passage through 24-L and 24-G and finally entered the plaintiffs plot. The plaintiff also stated that some suit was filed against the defendants 1 to 8 when they created some obstructions and that suit was numbered as 229/61 in the Court of Munsiff, Bellary and that suit sought the decree for injunction against defendants 1 to 11 and that suit was decreed by the Munsiff Court. The plaintiffs case is that soon thereafter the execution of the decree in O.S. No. 229/61, that plaintiff sought to take water to her land through the land of first defendant in October, 1964. There did develop misunderstanding between defendant 1 and plaintiffs husband and thereafter the defendants 2 and 8 were set up by the defendant 1, and they began to obstruct in the plaintiffs exercise of right to take water and all efforts to settle the matter failed. That the plaintiff had to file the present suit. The plain tiff - appellant's case is that her predecessor in interest have been exercising the right of taking water of from the well in dispute to Plot No. 24-D described in the plaint for a long time and their predecessor as well the plaintiff -appellant did acquire the right to easement by prescription and none of the defendants had any right to prevent the plaintiff from taking the water from suit well. The plaintiff has also claimed relief of declaration that the plaintiff has a right to draw the water from the well situated in Survey No. 24-1 and F of Dharmasagara to her land 24-D along with the Western boundary of 24-G and Southern boundary of 24-A/3 to reach the land in Survey No. 24-D. The plaintiff claimed relief of permanent injunction against the defendant from interferring with the enjoyment of plaintiffs rights. By amendment of the plaint, the plaintiff sought for relief of rectification of the sale deed dated 20-5-1958 which had been executed in favour of the plaintiff-appellant by substituting figure 1/12" for 1/6 and by substituting Survey No. 24- 1 and F for Survey No. 23-A of village Dhar- masagar and to take water from the well located therein to her land. The defendant 1 filed a written statement and denied the plaintiffs case. The plaintiff pleaded that Survey No. 24 belonged six persons and they acquired 1/6th share each to use the water of the well. The principal defence of the defendant had been to the effect that the plaintiffs case is false and that under the transfer deed, no right to take water from the well had been sold or given to the plaintiff or plaintiff - appellants Vendor nor any right with respect to water had been sold by defendants 6 to 8 in favour of Gangamma. While selling those lands, Veerab- hadrappa- defendant 6 has given his entire 1/6th share in the right to take water to defendant 11-Bheemappa who has purchased Survey No. 20-E and according to defendant 1, no right or interest to take water had been given to Gangamma or Basavareddy who were purchasers of Survey Nos. 24-D and 24-J respectively and as such, Gangamma had no right whatsoever under the documents for use of water in the lands purchased by him and as such, she could not transfer the right which never existed over the water, in favour of the plaintiff. The defendants further alleged that as such the plaintiff-appellant did not acquire or get any right from Vendor Gangamma under sale deed dated 20th May, 1958 in respect of matter of taking water from the well in the suit. The defendants in para 6 of written statement have submitted that the plaintiff has wrongly set-up a story of misdescription of the well by showing wrong Survey No. 23-A for ulterior motives. They also alleged no water was taken by the plaintiff through any water course muchless through the water course marked in the plaint and sketch. The defendant- respondent denied any knowledge of any decision in Suit No. 229/61 and they asserted that he was not a party in such suit, i.e., O.S. No. 229/61 and so the decision given therein is not binding on him. The defendant stated that the plaintiff had no right to the water course nor has she been enjoying the same as such and so according to defendant 1, the plaintiff had no right to claim relief of injunction. The claim for damages was asserted to be not maintainable. As regards defendants 2 and 3, they did not file any written statement. The suit proceeded ex parte against them. The defendant 4 adopted the pleas taken by defendant 1 in her written statement. The defendants 5 to 8 did not contest the suit and did not file statement and suit proceeded ex parte against them. The defendant 11 also did not file any written statement. The defendant 10 had filed a written statement supporting the case of the plaintiff and defendant 9 adopted the written statement filed by defendant 10. The Trial Court on the basis of the pleadings of the parties framed the following 8 issues : (1) Does plaintiff prove that she has 1/12th of the right to take water from the well in Survey No. 24- I and F through her vendor ? (2) Whether the mention of Survey No. 23-A in the sale deed in favour of plaintiff is a mistake ? (3) Does plaintiff prove obstruction by defendants 1 to 3 in her right to take water ? (4) Does plaintiff prove that she has acquired a right to take water from the well as an easement of necessity along the course alleged. (5) Does she prove that she has enjoyed the right to take water from the said well for 20 years peacefully and without interruption along the alleged course ? (6) Is plaintiff entitled to declaration and injunction sought ? (7) Is she entitled to damages and if so to what amount ? (8) What decree or order ?

(2.) These eight issues were framed on 14th June, 1966, i.e.,more than 20 years ago. By judgment and decree dated 31-1-1967, the Trial Court dismissed the suit of the plaintiff but no costs and having felt aggrieved by the judgment and decree dated 31-1-1967, the defendant preferred Regular Appeal No. 15 of 1967 before the Court of the Civil Judge, Bellary and by judgment and decree dated 13-3-1973, the learned Civil Judge acting as the Appellate Court, set aside the Trial Court's decree and remanded the case for decision afresh with a direction to frame issues as per the memo filed by both the parties and in pursuance of that direction, the Trial Court on 13-12-1973 framed the following issues: (1) Whether the right to take the water from the suit well situated in Survey No. 24 (I and F) has been exclusively given to defendant 11 ? (2) If so, whether the plaintiffhas the right to take water from the said well along the route shown in plaint plan? (3) Whether defendant 1 is not entitled to contend that the plaintiff has no right to take water from the well? (4) Whether the plaintiff is not entitled to take water as quasi easement ? (5) Whether the plaintiff is entitled to rectification of her sale deed ? (6) What relief?

(3.) The Trial Court after having recorded the findings decreed the plaintiffs suit for declaration, injunction and rectification. Vide, judgment and decree dated 3-8-1974 the Trial Court held as under: (1) That the right to take water from the suit well situated in Survey No. 24-1 and F, has not been exclusively given to defendant 11; (2) That the plaintiff has right to take water from the suit well alongwith the route as mentioned in the plaint plan; (3) The defendant is not entitled to contend that the plaintiff has no right to take water from the well; (4) That the plaintiff is entitled to take water as quasi easement; and (5) The plaintiff is entitled to rectification of her sale deed.