Judgment:
R.S. Mohite, J.
1. Heard Advocate for the appellants. Respondents are absent though served.
2. This is a second appeal filed by the original defendants Bapusaheb Sakharam Salunke and Pandurang Dattu Patil. It impugns a concurrent judgment and decree passed by the two lower courts. The trial court decreed the plaintiffs suit and held that the plaintiffs were entitled to draw water from the suit well situated in Gat No. 2359 at Village Arag to the extent of 8 annas share. The defendants were also held entitled to draw water from the suit well for the remaining 8 annas share. The decree was confirmed by the first appellate court and that is why this second appeal has been filed by the original defendants.
3. The brief facts of the case were as follows:
a) The suit well as admittedly situated in old Survey No. 808. On 31.12.1887, the dispute had arisen between the predecessor in title of the plaintiffs and one Morebhat Babaji Joshi who was predecessor in title of one Bhau Damodar Joshi. The said dispute went to the civil court and the suit came to be decided by decree passed in R.C.S. No. 322 of 1894. Under the said decree a 1/4th share of the suit well was given to the predecessor in title of the aforesaid Bhau Damodar Joshi.
b) By a registered sale deed dated 6.5.1954 (Exh.56) the defendants purchased the adjoining Survey No. 807 from the father of the plaintiffs Buwaji Patil. This sale deed indicated that the disputed well in survey No. 807 was without water and it also provided for the sale of 1/3rd share in the suit well situated in the adjoining land being Survey No. 808. By a further sale deed Exh.83, the defendants purchased survey No. 808 from Bhau Damodar Joshi including a right to draw water from the suit well. This meant that he purchased the 1/4th right of Bhau Damodar Joshi to draw water from the said well.
c) In the year 1970, a consolidation scheme was finalised in the village and Survey No. 807 and 808 were converted into Gat No. 2359. Since the defendants obstructed the plaintiffs from drawing water from the well situated in Gat No. 2359, in 1978, the plaintiffs filed R.C.S. No. 59 of 1978 by contending that they had a right to a 1/2 share in the suit well and seeking relief of injunction restraining the defendants from preventing them from drawing water to the extent of their share. As stated above, the said suit filed by the plaintiffs was decreed and the appeal filed by the defendants was dismissed.
3. On behalf of the appellants, it was contended that once consolidation scheme was finalised without protest, they acquired an absolute right to the suit well and its water as the well formed a part and parcel of the holding and was an immovable property. It was contended that in view of Section 36(B) of the Consolidation Act, a civil court was barred from deciding an issue regarding the existence of the plaintiffs right to draw water and this issue can only be determined by the competent authority under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act,1970. Reliance was placed upon a judgment of the Single Judge of this Court in the case Housabai P. Tawar v. Subhash S. Patil and Ors. reported in 2006(4) B.C.R. 537.
4. In so far as judgment relied upon by the plaintiffs, I find that the same turned on a totally different facts. In that case the issue was as to whether a sale deed was hit by the provisions of the Fragmentation Act. This was an issue that went to the root of the matter required to be decided by the competent authority, while the consolidation scheme was formulated and pertained to the land in question i.e. immovable property. That was not a case which turned upon other rights upon the said property. The said authority therefore, is of no help to the defendants.
5. The record indicates that the defendants acquired their right to draw water from the well in Survey No. 808 under two sale deeds dated 6.5.1954 and 23.3.1960. On perusal of the sale deeds, they have acquired 1/3rd share in the well under the sale dated 6.5.1954 and 1/4th share to draw water from the well under the sale deed dated 23.3.1960. Thus the total right acquired was a 7/12th share. This right to draw water from the well is not in the nature of an immovable property. Right to draw water is an independent right. On the contrary, as far as defendants rights are concerned, they would be governed by Section 28 of the Consolidation Act, which provides as under :28)
Every owner to whom a holding is allotted in pursuance of a scheme of consolidation shall, [save as otherwise provided in Section 29A have the same right in such holding as he had in his original holding:
Provided that nothing in this section shall apply to any person to whom a holding has been allotted under the provisions of [Sub-section(6)] of Section 21.The aforesaid Section 28 indicates that the defendants would only hold 7/12th share in the water from the suit well because they only had such right in the original holding i.e. Survey No. 808.
6. It however, appears that the Lower Courts have awarded a 1/2th share to both the parties. This is not in accordance with the documents on record. The appeal will therefore, have to be partly allowed and it will have to be held that the plaintiffs have a 5/12th share to draw water from the well in Survey No. 808, whereas, the defendants have 7/12th share to draw water from the well. To this extent, the decree will have to be modified. In the net result, I pass the following order.
ORDER
1. Appeal is partly allowed as under:
a) The plaintiffs/respondents are entitled to draw water from the suit well situated in Gat No. 2359 of Village Arag to the extent of their 5/12 share.
b) The defendants are entitled to draw water from the suit well to the extent of the remaining 7/12th share.
c) Therefore, out of a cycle of 12 days the plaintiffs to draw water for 5 days and the defendants to draw water for 7 days. If they cannot arrive at a mutually acceptable schedule of dates, the question of allocation of days will be decided by the Executing Court.
d) Appeal is disposed off.