Judgment:
The plaintiffs in O.S.No.110 of 1997 on the file of the Senior Civil Judge, Nuzvid, are the appellants. They filed the suit against the respondents for the relief of perpetual injunction in respect of Ac.8.98 cents of land in R.S.No.58 of Malleswaram Village of Agiripalli Mandal, Krishna District. It was pleaded that the appellants purchased Ac.8.98 cents of land out of Ac.9.48 cents through sale deed dated 31-01-1970, from one, Shaik Mohiuddin, who is the owner of Ac.11.48 cents of land in that survey number. It is also pleaded that the land was partitioned among the appellants in the year 1988, wherein appellants 1 to 5 got Ac.1.28 cents each and appellants 6 and 7 Ac.1.29 cents each. Pattadar passbooks and title deeds are said to have been issued by the Revenue Authorities. Their grievance was that the respondents were trying to encroach into their lands.
The 1st respondent filed written-statement and the same was adopted by the respondents 2 to 4. It was pleaded that the 1st respondent purchased Ac.1.19 cents of land in Malleswaram Village in D.No.82/3 and Ac.0.19 cents of land in D.No.81 of Malleboinapally Village, through sale deed dated 05-04-1956. The 2nd respondent is said to have purchased one acre of land in D.No.382/B of Malleswaram Village through sale deed dated 05-06-1956, and 10 cents in D.No.29 of Malleboinapally Village. They pleaded that there exists an irrigation tank by name, Ammanakunta, in Sy.No.58 of Malleswaram Village, and that the same is being used as a source of irrigation for their lands. Reference was also made to certain proceedings, that ensued in respect of the suit land.
The trial Court decreed the suit through judgment dated 01-03-2006. The respondents filed A.S.No.126 of 2006 in the Court of XIII Additional District Judge, Krishna at Vijayawada. The lower Appellate Court allowed the appeal through judgment dated 30-08-1991. Hence, this Second Appeal.
Sri D. Jaipal Reddy, learned counsel for the appellants submits that the lower Appellate Court reversed the judgment of the trial Court without any basis. He contends that the respondents did not claim any right of ownership or possession over the suit schedule property, and at the most, the rights pleaded by them were easementary in nature. He submits that when the respondents did not claim any right of ownership or possession, the appellants were entitled for the relief of injunction, and in case the respondents have rights of any other category, vis--vis the land, it was for them to seek declaration thereof by instituting proceedings under the relevant provisions of law. Learned counsel submits that the evidence on record established beyond any pale of doubt, the right of the appellants, to remain in possession of the land, and that the decree of perpetual injunction granted by the trial Court ought not to have been reversed by the Appellate Court.
Sri G. Vivekanand, learned counsel for the respondents, on the other hand, submits that the appellants failed to establish their exclusive right over the suit schedule property, and in particular, the area covered by the tank. He contends that in several proceedings, in relation to the land in question, the existence of the tank was proved, and that the respondents cannot be denied the right to draw water from it. Learned counsel submits that the lower Appellate Court has examined the entire record, and on finding that there existed an irrigation tank; and that the appellants did not state the correct facts, allowed the appeal and dismissed the suit. He further submits that no substantial question of law arises for consideration, and the appeal be dismissed.
The suit filed by the appellants herein was for the relief of injunction-simplicitor. Their grievance was that the respondents are trying to interfere with the possession and enjoyment of the land. The respondents resisted the suit by pleading their right to receive water from the tank existing on the suit land. Based on the pleadings before it, the trial Court framed the following issues for its consideration:
1. “Whether plaintiffs are in possession of plaint schedule property?
2. Whether boundaries in the plaint schedule is correct?
3. Whether plaintiffs approached court with unclean hands by suppressing of O.S.131/97?
4. Whether plaintiffs are entitled permanent injunction?”
On behalf of the appellants, PWs 1 to 4 were examined and Exs.A-1 to A-26 were filed. On behalf of he respondents, DWs 1 and 2 were examined and Exs.B-1 to B-4 were filed.
Ex.A-1 is the registration extract of sale deed in favour of plaintiff No.7. Exs.A-2 to A-8 are the land revenue receipts from 1971 to 1997, and Exs.A-9 to A-15 are pattadar passbooks issued in favour of appellants 1 to 7, respectively. Ex.A-16 is the decree in O.S.No.52 of 1996, and Ex.A-17 is the certified copy of the sale deed dated 17-10-1973. Adangals for various years are marked as
Exs.A-19 to A-26. On behalf of the respondents, two sale deeds of the year 1956 are filed as Exs.B-1 and B-2; the report of the Commissioner is marked as Ex.B-3, and certified copy of the judgment in O.S.No.131 of 1997 as Ex.B-4.
The suit was decreed by the trial Court, holding that the appellants are in possession of the suit schedule property and that the respondents have no right to interfere with their possession. In the appeal preferred by the respondents, the lower Appellate Court framed the following points for consideration:
1. Whether boundaries mentioned in the plaint schedule are correct?
2. Whether Ammannakunta tank is located in plaint schedule property?
3. Whether the suit O.S.131 of 1997 is a bar on the plaintiffs to file the present suit?
4. Whether the plaintiffs are entitled for permanent injunction against defendants as prayed for?
5. Whether there are grounds to interfere with the findings of trial court?
It has taken the view that the existence of tank was not disputed by the appellants, and since they did not state the correct facts, they are not entitled to the relief of perpetual injunction.
This Court is of the view that the following substantial questions of law arise for consideration:
a) Whether the plaintiffs in a suit for injunction can be denied the relief, even when their title is not disputed, and their possession is established.
b) Whether a person who asserts that he is drawing water from the tank, existing in the land of another; can claim the same as of right, without seeking the relief of declaration, and whether such a plea can be a ground to dismiss the suit for injunction, filed by the owner of the land, on which the tank is said to be existing.
The case of the appellants was that they have purchased the land through Ex.A-1, in the year 1970, and thereafter it was partitioned among themselves. Pattadar passbooks were said to have been issued in the year 1996. Land revenue receipts up to the date of filing of the suit were filed.
The respondents did not claim any right of ownership of possession over the suit schedule property. Their plea was that they have been drawing water from a tank, that existed, on part of the suit schedule property, for the past several decades. They did not, however, file any documents to establish that there existed a tank over the land, or that they have been drawing water, as of right. Once the defendant in a suit for injunction does not dispute possession of the plaintiff, over the land, in his capacity as owner, there is no alternative for the Court, except to grant the relief of perpetual injunction. It is only when the defendant pleads right of possession, albeit, without any claim of ownership upon the suit property, that the relief can be denied to the plaintiff. In case the defendant possesses right of any other category or nature, he can certainly seek enforcement thereof by seeking declaration as to the existence thereof. Hardly any support from precedent is needed for this fundamental principle of Civil Law.
The oral evidence of PWs 1 to 4, coupled with the documentary evidence adduced by the appellants, established their possession over the suit schedule property. Though the evidence recorded by the trial Court was sufficient on this aspect, this Court found that the parties did not bestow their attention to the nature of entries in the revenue records, vis--vis the existence or otherwise of the tank. It was felt that in case the revenue records disclose existence of an irrigation tank, over the suit schedule property, the appellants cannot deny the respondents, their right to draw water. It was in this context, that the parties were required to file a joint application before the Assistant Director of Survey and Land Records. That was done and the Inspector of Survey in the office of the Assistant Director of Survey Settlements and Land Records submitted a detailed report. It was taken on record as Exs.C-1 and C-2. In Ex.C-1, the Inspector of Survey stated,
1) “The total extent of R.S.No.58 is Ac.9.48
2) As per RSR the land is classified as Zeriothi land
3) In the FMB, the details of Ammannakunta Tank is marked on the western side of R.S.No.58 without specifying any extent which is now in force.
4) As on today this tank is spread up to an extent of Ac.2.68 cents from west to East of R.S.No.58 out of which an extent of Ac.0.88 is covered by marshy and grass probably due to seepage of tank water
5) An explanatory sketch showing the details of tank as per FMB which is now in force and location of tank existing today is enclosed.”
Once it emerges that the tank pleaded by the respondents is not the one, mentioned in the revenue records, they do not have any right to interfere with the possession of the appellants over the suit schedule property. Therefore, the first question is answered in favour of the appellants.
Coming to the second question, it has already emerged that the revenue records are silent as to the existence of an irrigation tank over the suit schedule property. In case the respondents were drawing water from any water-bodies, existing on the suit schedule property, it was for them to seek declaration as to the nature of rights. It is only when the relevant facts are pleaded, that an occasion would have arisen, to examine the questions, such as,
a) whether the respondents were drawing any water at all, from the tank, existing on the suit schedule property,
b) if so, whether drawal of water was as of right, or by way of concession or licence from the appellants or their predecessors in title; and
c) whether the so-called usage has crystallised into any legal or easementary right.
If the respondents have drawn water as a right of easement, the remedy open to them was, to file a suit under Section 33 of the Indian Easements Act, 1882. If, on the other hand, they intended to establish any right of superior category, they ought to have filed suit for declaration, with ancillary relief. No such proceedings were initiated. Therefore, the second question is also answered in favour of the appellants.
For the foregoing reasons, the Second Appeal is allowed, and the judgment and decree passed by the lower Appellate Court in A.S.No.126 of 2006 on the file of the XIII Additional District Judge, Krishna, at Vijayawada, are set aside. The decree in O.S.No.110 of 1997 passed by the Court of Senior Civil Judge, Nuzvid, shall remain. It is left open to the respondents to institute such proceedings as are open to them in law, to establish their rights, vis--vis the water body existing on the suit schedule property. It is directed that the appellants shall not disturb the existing state of affairs for a period of four weeks from today.
The miscellaneous petitions in this Second Appeal also shall stand disposed of. There shall be no order as to costs.