K KOMURAIAH Vs. G SAHDHYA RANI

JUDGEMENT

(1.) The defendants in O.S.No. 763 of 1983 and the respondents in A.S.No. 82 of 1987 who suffered a decree in the appeal before the learned Additional District Judge, Warangal on 20-7-1988 have come up with this appeal. The respondent is the plaintiff in the suit and the appellant in the appeal. The plaintiff filed the suit for permanent injunction restraining the defendants from interfering with her possession and enjoyment of the suit schedule properties by opening a channel or digging etc. It was dismissed. The plaintiff took the matter in appeal and the learned District Judge allowed the appeal, set aside the judgment and decree of the learned District Munsif and consequently passed a decree for permanent injunction as prayed for in the suit. That is how the appellants who are defendants in the suit and the respondents in the appeal are aggrieved and present this appeal.

(2.) The plaintiff is the owner in possession and enjoyment of S.No. 49 measuring Ac. 2.32 guntas situated at Obulapur Village, which is the suit property. There is a rivulet known as Jalu Vagu abutting the land of the plaintiff. Defendants 2 and 3 are the younger brothers of the first defendant. Their lands bearing S.Nos. 42, 43 and 45 of the same village situate abutting on the northern side of the suit land. The suit Land of the plaintiff and the lands of the defendants are wet lands. The plaintiff and the defendants have been making use of the water from Jalu Vagu since a long time. However, the plaintiff dug a well in the suit land for her benefit. The plaintiff alleged that there was no channel in the suit land and the defendants were making use of the water from Jalu Vagu which was over flowing on the suit land. But according to her, the defendants tried to dig a channel over the suit land and damage it and thereby interfered with the plaintiff's peaceful possession and enjoyment of the suit property and therefore she sought for relief of permanent injunction. The defendants contended that they have got a right to take water from Jalu Vagu over the suit land through the channel which existed since a long time and they did not actually obstruct the right of the plaintiff to enjoy the property except they attempted to take water through the alleged channel over the suit land. In the meanwhile, the parties approached the District Collector, Warangal and also Tahsildar, Ghanpur who had passed certain orders in regard to the use of water by the parties from Jalu Vagu. The following issues were settled in the suit.

(3.) Sri Surender Rao, the learned advocate for the appellants has contended that from the admitted facts in the case the defendants were entitled to take water from Jalu Vagu through the suit land as their lands are situated abutting the suit land, and they had no other source of water. It is also his contention that from the evidence it was clear that a channel actually existed on the suit land which came to be closed about ten or fifteen years back and the defendants were making use of the said channel for the purpose of drawing water to their land as and when it is necessary. It is his further contention that in view of the orders of the Tahsildar, Ghanpur, the orders of the District Collector either purported to be in favour of the plaintiff did not create any right or the basis to hold the issue in favour of the plaintiff. He thus concludes stating that the learned District Judge was not right in interfering with the finding arrived at by the learned District Munsif on issue No. 1 and decreeing the suit for permanent injunction. Mr. J. Kanakaiah, the learned advocate for the respondent-plaintiff totally supports the judgment and decree passed by the learned District Judge and contends that the finding of the learned District Munsif was wrong in view of the circumstances of the case and evidence on record. According to him, no channel existed on the suit land as on the date of the suit admittedly and even according to the report of the Commissioner. Mr. Kanakaiah, the learned advocate had made it emphatic that in law the defendants had no right as such for the use of water passing through the suit land except when it overflows, that too during rainy season and that they have no right to dig or open a channel on the suit land for the use of overflowing water. As a whole, he contends that this appeal has no merit.