N RANGAPPA Vs. RANGA GOWD

JUDGEMENT

(1.) The first defendant is the appellant. The plaintiff's suit related to the easementary right that they claimed to take water to their Survey No. 209/3 through the channel P, P-1, A, B, C, D, E, F, shown in the plaint plan across S. No. 207/1 belonging to the appellant. They also wanted a permanent injunction restraining the defendants from causing any obstruction to the enjoyment of that easementary right ; they further prayed for a declaration in regard to the right to use the pathway marked M, M-1, G, W-1, M-4 and the branch pathway marked as M, M-1, G, W-1, W-3 in order to reach their S. No. 209/3 and 181/1 and 181/2. They further prayed for certain other ancillary reliefs. The plaintiffs case was that they had been enjoying these rights of easement to take water over S. No. 207/1 and walking along these pathways for over the statutory period and had acquired easementary rights in respect othereof. The appellant purchased S. No. 207/1 under Ex. D-2, dated 24 May, 1923. At that time the course of the channel was slightly different. It ran diagonally across that field through the cousre P, P-1, G, D, E, F. After the purchase the appellant obstructed the passing of the water along the channel with the result that in order to minimise the inconvenience caused to the new owner the water course was changed from the original direction to the present one namely along P, P-1, A, B, C, D, E, F. As the plan indicates this alteration, without in any manner interfering with the purpose for which the channel existed, namely to take water from the original source to the plaintiffs field S. No. 209/3 and, undoubtedly reduced to a substantial extent the inconvenience or burden of the easement upon the servient tenement. It is not necessary to deal separately with the case of the pathway because it is similar to the case relating to the channel and the evidence, oral and documentary, on both matters is common. I shall,, therefore, mainly deal with the question of the channel.

(2.) What happened after the purchase under Ex. D-2 was that the appellant closed up the old channel P, P-1, D, E, and F thereby virtually preventing the flow of water to the plaintiffs land. The plaintiffs complained to the revenue authorities and under Ex. D-3 the Tahsildar issued a B Memorandum, dated 10 December, 1925, levying a penalty on the appellant for removing the channel. The appellant appealed to the Sub-Collector who passed an order Ex. D-4, dated 26 April, 1926, reversing the Tahsildar's order and holding that the first defendant was entitled to remove the channel and directed the refund of the penalty. It is not quite clear from the judgment of either courts from what date water began to flow along the new channel but it has been assumed that water began to flow in the altered way immediately after the obstruction in 1923. The enjoyment continued uninterrupted from that date until the 30 of January, 1943, when for the second time the appellant again removed the new channel; and the present suit was filed by the plaintiffs on the 4 November, 1943, to get the obstruction removed. Both the Courts below found that the plaintiffs have established their easementary rights in respect both of the channel and the pathway. The main objection as far as it appears from the written statement that the appellant raised to the suit was that there was no channel in existence at all. No further pleas were raised to show that the enjoyment was for less than the statutory period or that the interruption that took place in 1923 had the effect of a continued enjoyment of these easementary rights. The trial Court framed an issue with regard to the question of the existence of the channel and the second and third issues were to the following effect: (2) Whether the easementary rights claimed by the plaintiffs are true? (3) Whether the suit is not in time ?

(3.) After discussing all the evidence the learned District Munsiff found that the channel was in existence from the time the first defendant purchased S. No. 207/1 up to the date of its interference in January, 1923. With regard to the pathway also he came to the same conclusion. In the result he held that the easementary rights claimed by the plaintiffs had been established and that these rights had been infringed by the defendants. In that view he granted the respective injunctions that were asked for? On appeal the District Judge of Anantapur confirmed the decree agreeing with the trial Court that the plaintiffs had established the right of easement in respect of the channel and also in respect of the pathways. It appears from the judgment that the only point that was argued before the appellate Judge was whether the plaintiffs had established the easementary rights claimed by them ; and after discussing that question the appellate Judge mentioned in paragraph 13 that no other points were urged at the hearing of the appeal.