BASAPPA Vs. UJJANAGOUDA MANNAPPAGOUDA HOSAGOUDRA

JUDGEMENT

(1.) The above appeal is directed against the judgment and decree dated 8th August, 1978 made in R.S.A.No. 181 of 1974 on the file of the Civil Judge, Haveri, reversing the Judgment and decree dated 30th March, 1977 passed in O.S. No. 49 of 1971 on the file of the Munsiff, Haveri.

(2.) The facts of the case in brief are: Plaintiff filed a suit for declaration of easementary right to take water to their lands bearing S.No. 118/1 and 118/2 from the well situated in R.S. No. 119/1 the land of defendants 1 and 2. R.S. No. 119/2A and 119/2B are the lands of defendants 3 and 4. Plaintiffs contended that they and defendants are raising crops of coconut, paddy, sugarcane and vegetables in their respective lands for the last 100 years and are taking water from the Well situated in the R.S.No. 119/1. This the plaintiffs are doing as it is conveniently situated between the lands of plaintiffs and defendants. The plaintiffs contended that the owners of S.No. 119 take water to the extent of 2/3rd share and owners and cultivators of S.No. 118 take water to the extent of l/3rd share and they are taking water according to their turn. During 1870-71 at the time of the Revision Survey there was a measurement and pot hissa nos. were given and the right to take water from the said well is mentioned in the records to the extent of their respective shares. Even during 1964 the right is mentioned in a book prepared and it is alleged that both the plaintiffs and defendants have got repaired the well and borne the respective charges. In R.S.No. 118/1 there is a sugarcane crop and R.S. No. 118/2 is kept ready for sowing sugarcane, but since about 4 to 6 days before the suit, the defendants obstructed the plaintiffs from taking water from the said well. They further contended that all the above lands are also fed from the Government Tank in Revision Survey No. 271, but the water from the said tank cannot be taken for more then 2-3 months and that Tank gets water from the rains only and it will last for 2-3 months. Hence, both plaintiffs and defendants depend upon the well water for their sugarcane crop from the well situated in S.No. 119/1 and also the water avilable in the tank. Further the plaintiffs submit that to take sugarcane crop, at least 11 months are required and throughout the period water is necessary. They cannot take the crop without the water from the said well and the tank. Defendants 1 to 4 have resisted the suit and filed their written statement inter alia contending that all the allegations made are false. They denied that the plaintiffs have easementary rights; they denied plaintiffs ever took water from the well; they also submitted that in no circumstances, the plaintiffs could file the suit of this nature against them as no right of easement to take water accrued to them at any time.

(3.) On the pleadings of the parties, learned Munsiff raised the following issues:- 1) Whether the plaintiffs prove that they were entitled to get l/3rd water to the suit land from the well situated in R.S.No. 119/1? 2) Whether the plaintiffs prove that they have got this right by way of ease ment? 3) Whether the plaintiffs are entitled for the declaration and perpetual injunction? 4) What order or Decree?