- (1.)This is an appeal against the judgment and decree passed by the Civil Judge, Gulbarga, in Review Petition No.38/5 of 1965 for review of his judgment in C.A.No.267/4 of 1964.
(2.)In order to appreciate the points that have been submitted before me by the learned Advocate appearing for the appellants and respondents, it is necessary to refer briefly to the facts and the decisions rendered by the Courts below. Hassan Patel and his son wno are tne respondents in this appeal filed CS. No.637/l of 1962 in the Court of the II Additional Munsiff, Gulbarga, for a perpetual injunction against the defendants (the present appellants) restraining them not to divert the flow of water of the 'nala' into S.No.608 owned by the plaintiffs and not to interfere with the bund construced by the plaintiff across the eastern boundary of his land. The plaintiffs averred that there had been an agreement between the predecessors in title of the two defendants some 30 years ago, that they had agreed to divert the course of the nala flowing from east to west. S.No. 588 directly to S.No.608 and then into S. No.582 belonging to Defendant No.2, and that on account of this agreement the plaintiffs had put up a bund from north to south against the eastern boundary of their loand S.No.608. It was complained in the plaint that the two defendants who were the successors in interest of persons that had entered into an agreement SO years ago to take the nala water into their own lands by diverting its course so as to leave an out-let on the boundary of S.No.608, had now been interfering with the course of the nala and also interfering with the bund put up by the plaintiff. According to them, the defendants were bound by the agreement entered into between their predecessors-in-title and they had no right either to divert the course of water or interfere with the plaintiffs' bund.
(3.)In their written statement the defendants denied that there was any such agreement as alleged in the plaint and that the plaintiffs were merely diverting the water into their land instead of allowing it to flow along its natural course i.e., from S. No.588 directly into S. No.608.
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