M.SUBRAYA BHAT Vs. SHANKARI AMMA

JUDGEMENT

(1.) THE defendants in O.S.No.196 of 1988 of the Additional Munsiff's Court, Kasaragod is aggrieved by the decree for declaration granted by that court and confirmed in A.S.No.196 of 2002 of the District Court, Kasaragod.

(2.) RESPONDENTS are the legal representatives of the deceased original plaintiff. The original Plaintiff and the 1st defendant are direct brothers and claim properties as per Ext.A1, settlement deed dated 08.04.1960 executed by their father. As per that settlement deed, the B schedule therein (plaint A schedule herein) was settled in favour of the original plaintiff while the C schedule in Ext.A1 was settled in favour of the 1st defendant. The house of 1st defendant is situated in the plot bearing R.S.No.597/2. His arecanut garden is comprised in R.S.No.597/1. As per Ext.A1, settlement deed, the 1st defendant was given right to construct a tunnel in plaint A schedule and take water to irrigate his arecanut garden. After the settlement deed, the 1st defendant bored a tunnel from the tank in R.S.No.5987/1 for irrigation purposes. The 1st defendant had no right over the plaint A schedule. The original plaintiff constructed a well in the plaint A schedule towards its northern side. He also constructed a tunnel to that well. The 1st defendant wanted to take water from that tunnel also. For the said purpose, the 1st defendant attempted to lay pipe lines to the well constructed by the original plaintiff in the plaint A schedule. Hence the prayer for a declaration and prohibitory injunction.

(3.) THE trial court found from Exts.A1 to A5, rejecting the contention raised by the defendants and the reliance placed on Exts.B1 to B7 and the evidence of DWs 1 and 2 that the plaint A schedule belongs to and is in possession and enjoyment of the original plaintiff. It is also found that as per Ext.A1, the right of the 1st defendant is only to bore a tunnel through the underground of property comprised in R.S.No.594/2C (plaint A schedule) to collect water in the tunnel for irrigation of the arecanut garden belonging to the 1st defendant. But Ext.C4, plan revealed that after Ext.A1, the 1st defendant bore a tunnel from tank No.T/2 shown in Ext.C4. Ext.C4, plan also revealed that from tank No.T/1, appellants are taking water to their property in R.S.No.597/2 (concerning which a plea similar to an easement by way of prescription is raised by the appellants). Trial court found that appellants have no right to lay pipe lines from tank No.T/1 shown in Ext.C4 through plaint A schedule and accordingly granted a declaration. However, having regard to the circumstances borne out from Ext.A1, the prayer for injunction was not granted.