RAGHUNATH MOHAKUDA Vs. GANAPATI GOUDA AND OTHERS

JUDGEMENT

(1.) Plaintiff is the appellant against reversing judgment in a suit for mandatory injunction.

(2.) The case of the plaintiff is that one Bhaiga Gouda had three sons, namely, Gandu, Lochana and Dinabandhu. Gandu died leaving behind his two sons, namely, Mangala and Mohana, defendant no.4. Mangala died leaving behind his widow, Neta, defendant no.3. Lochana died leaving behind his two sons, namely, Chaudhury, defendant no.2 and Ganapati, defendant no.1. Dinabandhu died leaving behind his two daughters, namely, Rekhi, wife of the plaintiff and Malati. Bhaiga had excavated a tank over an area of Ac.0.60 dec. of land appertaining to old patta no.17 and survey no.40/IA/2, for irrigation. He installed sluice on the north east corner of the ridge of the tank. After his death, the ancestral property was partitioned. The suit tank remained joint. In the year 1960, Dinabandhu executed a registered gift deed in favour of the plaintiff. It was mentioned in the gift deed that the plaintiff would have the right to use the water of the tank for irrigation purposes. All branches were enjoying the water of the tank. In 1976 settlement, the tank had been recorded in the name of Lochana, father of the defendant nos.1 and 2, Mangala, husband of defendant no.3, defendant no.4 and the plaintiff. While matter stood thus, the defendants put another pipe at the lower level of the tank to drain out the water to their lands. The plaintiff wanted to take water through the new pipe. On 06.01.1988, the defendants obstructed the plaintiff from taking water through pipe as a result of which, the seasonal crops had been damaged. He is sustained loss of Rs.8, 000/-. The installation of the cement pipe on the southern ridge of the tank by the defendants prevented the plaintiff from taking water. The defendants have 5 to 10 bharanas of land adjacent to the tank. They could have taken water through the old sluice. With this factual scenario, he instituted the suit seeking the relief mentioned supra.

(3.) The defendants entered contest and filed a written statement denying the assertions made in the plaint. According to the defendants, Bhaiga excavated the tank. They denied the installation of any sluice made of brick in the tank by Bhaiga. Bhaiga used to take water from the tank for irrigation by cutting the ridge. After the death of Bhaiga, properties were partitioned. In the partition, the lands situated to the east of the tank fell to the share of Dinabandhu, whereas the lands situated to the south of the tank fell to the share of the defendants. Dinabandhu used to cut the ridge of the tank on the eastern side and the defendants cut the southern side of the tank for taking water to their respective lands. Subsequently, Dinabandhu constructed a sluice with stone on the eastern ridge. While matter stood thus, in the year 1954, Lochan and Gandu put a cement pipe at the place where the ridge was cut. The plaintiff was taking water to the land through sluice. The defendants have got 12 acres of land adjoining to the tank towards the south, whereas the plaintiff has got about 5 acres of land towards the east of the tank. After death of Dinabandhu, his illatum son in law, plaintiff stayed in the house. He was in litigating terms with defendants. He instituted the suit against the defendants and lost. The predecessor in interest of the plaintiff had never raised any objection to the action of the defendants in taking water by cutting the ridge prior to 1954 at the place, where they put the cement pipe. The suit tank is the joint property and as such the suit for mandatory injunction is not maintainable.