SHIVLINGAMVA IRAPPA BIRAJDAR Vs. YESHWANTRAO HANUMANTRAO VORPETTI

JUDGEMENT

(1.) Defendants Nos. 1 to 7 have filed this appeal against the concurrent decree passed by both the courts declaring that the plaintiffs have a right of casement to enjoy water of a well situate in Survey No. 145/2 at Salgar and are entitled to take water to their land Survey No. 146 situate at Salgar by the specified channel. Both the courts have also granted an injunction restraining defendants Nos. 1 to 7 from interfering with plaintiffs enjoyment of the right to use the water of the well and to take it by the channel.

(2.) Plaintiffs together are the owners of Survey No. 146. This survey number is divided into separate Pot hissas and as indicated in the sketch annexed to the plaint, those separate Pot hissas belong to the different plaintiffs. Similarly defendants are the owners of Survey No. 145 in which there is a well. This survey number is also divided into separate Pot hissas. On share of Pot hissas belongs to defendants Nos. 1 to 7 and the two other portions belong to defendants Nos. 8 and 9 respectively. Plaintiffs filed a suit for an injunction restraining the defendants from interfering with the right of the plaintiffs to take and enjoy water of the well situate in Survey No. 145/2 and to take water by a channel to their Survey No. 146.

(3.) The suit was resisted by defendants Nos. 1 to 7. The right was claimed by the plaintiffs as a prescriptive right acquired under easement. The acquisition of the right by the plaintiffs was disputed by the defendants. They also contended that defendants Nos. 1 to 7 had filed an earlier Suit No. 8 of 1967 against the plaintiffs for a declaration that they are the owners of the land and plaintiffs have no right therein. In the earlier suit the plaintiffs contended that they were the co-owners of the well but did not assert any prescriptive right to take the water of the well by way of prescriptive easement. In the earlier suit the claim of plaintiffs co-ownership of the well was rejected by the trial Court as well as by the first Appellate Court and the second appeal preferred by the plaintiffs was summarily dismissed by the High Court at the stage of admission. In the earlier litigation no alternative plea was put forward that the right to take the water of the well from Survey No. 145/2 has been acquired by prescription for the requisite period provided under the Easement Act. After the disposal of the earlier litigation within a few months on October 3, 1970 plaintiffs filed the present suit for an injunction claiming prescriptive right to take the water from the well by a particular specified channel.