HAJISA IMAMSA KAIRAT Vs. KALYANRAO ANANTRAO KULKARNI

JUDGEMENT

(1.) This appeal was referred to a Bench by the learned Chief Justice sitting singly, as it raised an important question of law. In the suit which has given rise to this appeal, the plaintiff-respondent has prayed for a mandatory injunction requiring the defendants to remove certain walls and for the restoration of the suit water channel in its original place. He has also prayed for a permanent injunction restraining the defendants from interfering with the course of the water channel shown in the plaint.

(2.) The facts found by the Courts below are: The plaintiff is the owner of R. S. No. 472/1 and 472/2 of Kannur Village; for the last about 30 or 40 years he was taking water to his lauds from a Government well through the Government land in S. No. 472 which adjoins the plaintiff's land; the water was taken by means of a pueca channel which was about 9' in width and 10' in depth; the channel in question was put up by the plaintiff; the defendants have now removed that channel and have obstructed the plaintiff from taking the water by putting up certain walls.

(3.) From the facts found, it is clear that the plaintiff has not perfected his right of easement to take water through the Government land. In the eye of the law he is still a trespasser. Equally the defendants are also trespassers. That being the case, can the plaintiff maintain the present suit against the defendants? The trial Court has found that he cannot, whereas the first appellate Court is of the opinion that the plaintiff can maintain the present action. Landon (in Pollock on Torts, Fourteenth Edition at page 299) says: