RAJABATHULA SURYANARAYANA Vs. YEDUKULA LAKSHMI

JUDGEMENT

(1.) Heard Sri Ramchander Rao, counsel representing the appellants and Sri Ram Mohan, Counsel representing the respondents.

(2.) The unsuccessful plaintiffs in both the Courts below are the appellants in the present Second Appeal. The parties are referred to as plaintiffs and defendants as arrayed in the trial Court for the purpose of convenience. The appellants/plaintiffs instituted the suit O.S.No. 124/81 on the file of Principal District Munsif, Peddapuram for declaration of their right to take water from S.No. 310/8 tumu to their lands through S.M.Bodi, for a mandatory injunction directing the respondents/ defendants to restore S.M.Bodi to its original position of a width of 2 feet excluding bonds on either side and a depth of three feet, or permanent injunction restraining the defendants and their men from interfering with the said S.M. Bodi and from obstructing the plaintiffs and their men from taking water from S.No. 310/8 tank through S.M. Channel or bodi to the plaintiffs' land, and to recover damages and for costs of the suit. The trial Court on the strength of the respective pleadings of the parties had settled certain Issues and had recorded the evidence of P.W. 1 and P.W. 2 and D.W. 1, marked Exs. A-1 to A-10 and Exs. B-1 to B-9 and on appreciation of both oral and documentary evidence had ultimately dismissed the with without costs and aggrieved by the same, the unsuccessful plaintiffs had preferred A.S.No. 9/88 on the file of Subordinate Judge, Peddapuram and the learned Subordinate Judge, Peddapuram declined to interfere with the findings recorded by the Court of first instance and had dismissed -the Appeal with costs throughout, and aggrieved by the same the present Second Appeal is filed by the unsuccessful plaintiff.

(3.) Sri Ramchander Rao, the learned counsel representing the appellants/ plaintiffs had drawn my attention to Ground No. 10(a), (b) and (c) and had submitted that these are the substantial questions of law which arise for consideration in the Second Appeal. The learned counsel also submitted that apart from these questions, yet another substantial question of law is in relation to the interpretation of the recitals of the sale deed Ex. A-l and the learned counsel had pointed out to Ground No. 8 in this regard and had submitted that in view of the facts and circumstances, the said question also may have to be considered as a substantial question of law. The counsel had taken me through the findings which had been recorded both by the trial Court and the appellate Court. The learned counsel also had pointed out certain findings recorded by the Court of first instance while answering Issue No. 5 in particular to the effect that the plaintiffs are entitled to take water from the tank as of right from madi to madi as per Ex. A-1 ale deed and not from S.M.Bodi. The learned counsel also submitted that except the evidence 6f D.W. 1, no other witnesses were examined and on the contrary apart from the evidence of P.W. 1 the evidence of P.W. 2, one Sri C. Krishna Rao, Advocate - the common vendor of the plaintiffs and the defendants, is available on record and if the recitals of Ex. A-l are carefully scrutinized coupled with the evidence of P.W. 2, it is clear that the plaintiffs are entitled to their right to take water through S.M.Bodi. The learned counsel also explained that by the date of inspection by the Commissioner, the said Bodi might have not been in existence in view of the lapse of time and that by itself cannot be a ground to negative the relief. The learned counsel also submitted that when there is some ambiguity in interpreting the recitals of Ex. A-1, the evidence of the common vendor P.W. 2 will be crucial and in this view of the matter, both the Courts had totally erred in negativing the relief to the plaintiffs.