RADHA KRISHNA KANDOLKAR Vs. TUKARAM PUNDALIK HOMKHANDI

JUDGEMENT

(1.) INTRODUCTORY : This is a defendants appeal arising out of a decree for perpetual injunction passed by the Civil Judge, Junior Division, Panaji, restraining them from preventing the plaintiff from drawing water from the pond situate in Lote No. 12 and restraining them from preventing the plaintiff from constructing a "mer" in the defendants land for the purpose of irrigation of the "vaingan" crop of the plaintiff in the land Lote No. 13. The decree passed by the trial Court was confirmed by the Appeal Court and hence, this second appeal to this Court.

(2.) FACTS and Pleadings: the facts out of which the appeal arises may be briefly stated as follows: land Lote No. 12 belongs to the defendant. The adjacent land Lote No. 13 belongs to the plaintiff. Both the Lote Nos. 12 and 13 belong to the common landlord, namely the Communicated. It is the case of the plaintiff that he came into possession of the land Lote No. 13 as a tenant since about 30 years before the date of the suit. According to him, in Lote No. 12 which is in possession of the defendant as a tenant of the Communidade, there is a pond and the plaintiff has been taking water from that pond for the purpose of irrigation of his own "vaingan" crop which he makes in the land Lote No. 13. For doing so, he avers, he used to construct a "mer" in the land Lote No. 12 in the lawful possession of the defendant and his claim is that he has been doing so for the last 30 years before the suit. His further claim in the plaint is that he is doing so as a matter of customary right. This is what the plaintiff states in para 4 of the plaint in this behalf :-

(3.) DEFENCE : Defendant has squarely denied any such right belonging to the plaintiff. He has denied that the plaintiff took water from the pond belonging to the defendant in the defendants land as a matter of right. His contention is that in fact the plaintiff has constructed another pond in his own land Lote No. 13 and has been taking his "vaingan" crop with the help of the water in that pond. He has averred that he, the defendant, constructed a larger pond in his own land Lote No. 12. and improved the walls of the pond and started accumulating larger quantity of water in the pond because he wanted to get better crop in his own land Lote No. 12. According to him, when the plaintiff saw this larger supply of his water obtained by the defendant to his own land, he, (the plaintiff) became a various and started making this false claim to draw water from the defendants pond.