ISHWARA BHATTA Vs. PAKEERAPPA RAI

JUDGEMENT

(1.) The appellant was the defendant in OS. No.97/ 1961 on the file of the District Munsiff at Puttur. Against the decree passed therein, he preferred AS. No. 99/1962 before the Civil Judge of Mangalore, who modified the judgment of the trial Court and against this decree and judgment the defendant has preferred this Second Appeal.

(2.) The respondent-plaintiff and the defendant are owners of lands lying adjacent to a stream known as Perlampady Halla, running from south to north. The plaintiff is the lower riparian owner, while the defendant is the upper riparian owner. As the lower ,Courts have done it would be useful to refer to the plan Ext.A-16 prepared by the Commissioner appointed in the lower Court. The plaintiff is the owner of lands bearing, Nos.216/2, 216 3 and, 216/1 which lie to the west of the stream. The plaintiff purchased these properties under a sale deed dated 5-10-1938 marked Ext.A-6. The defendant is the ownerof S.Nos.219,1, 219/4 and 391/2 which are to the east of the. stream. He purchased these properties under the document dated 16-5-1957. After these respective purchases, the plaintiff and the defendant have been extending cultivation of their lands making use of the water of the streamas also feom the tanks near the lands in question. The plaintiff's allegation is that for the purpose of irrigation of S. Nos. 216/1, 216/2 and 216/3 a mamool katta is put up every year at the point D-1.. It is stated that it is a mamool ancient katta and that all the water impounded in that katta or dam is led by means of a diversion channel marked K.2 in the plan and it is used for the irrigation of all the lands of the plaintiff. By the use of the water of the tank it is alleged that the plaintiff has been raising three crops in S. No.216/2 and a portion of S. No.216/1 and he has subsequently raised areca gardens in portions of S. Nos.216/2 and 216/3.

(3.) They are said to be over 20 years old. It is also alleged that the plaintiff has been using the water of the dam for over the statutory period and by reason of such exclusive use of the waters in the katta he has acquired a prescriptive right for using all the water in the katta for raising three crops in the wet lands and for the areca gardens laid therein. The plaintiff claims a vested right for the exclusive user of all the waters of the said katta for cultivation of the properties without interference in any manner. It is alleged that the defendant who is an upper riparian owner has been cultivating his lands only using the waters of the tank T, that neither he nor any of his predecessors in interest ever used the waters impounded in the dam. The complaint of the plaintiff is that in about Aug. 1959 the defendant started extending and raising extensive new areca gardens in S. No.219/1 and also in portions of S. Nos. 218/2, 366/1 and 391/2. He is said to have installed an oil engine pump in December 1959 at the point P-1 to the west of his properties and that he has been drawing the waters impounded at the mamool katta, for the purpose of irrigating his new plantations as well as the old bits. Such user of the water by the defendant has resulted in the diminution of water supply to the plaintiff from the dam at point D-1. It is stated that though the plaintiff objected to the user of the waters by the defendant, the defendant has been persisting in it and the level of the water in the katta dropped down considerably and the plaintiff has been driven to the necessity of using kaidambes also to bale out water from the katta into the channel K-2 to lead water to his properties. This diminution of water has also resulted in the plaintiff's suffering acute shortgage of water to his areca gardens and even the kolke crops did not grow well for want of sufficient water. Thus he has suffered great injury and loss. Therefore, the plaintiff prayed for a decree-(a) for a declaration that the plaintiff is absolutely entitled to the exclusive user of all the waters that are impounded in the plaintiff's mamool katta known as Ganesh Gundi katta that is at point D-1in the plan and that the defendant has no manner of right to use or divert any of the waters impounded in the said katta to any of his properties; and (b) for a permanent injunction against the defendant restraining him from using any of the waters impounded in the said katta in the said stream by lifting any of the said waters by means of any pump or otherwise in any manner diverting any of the said waters for the use of his properties." (Sic.). The defendant denied the exclusive use of the water pleaded by the plaintiff. He contended that some of the lands of the plaintiff were merely two crop fields and now they have been converted into areca garden. In some of the lands of the plaintiff only one crop was being grown annually. Formerly the plaintiff had no areca garden. It is stated that the planitiff has other sources of water to his lands. It was contended that formerly the katta was not at the place shown in the plaint, but it was actually put up at D-1as the plaintiff proposed that the - katta may be put up lower down, because larger quantity of water would be impounded at that place. It is alleged by the defendant that till 1957 no katta water was being led to the plaintiff's fields and it is only in 1957 that the katta was put up by agreement of parties and it is by such agreement of parties that the defendant put up an oil engine pump for baling out the water from Perlampady thodu in November 1957 as he thought it would be easier and cheaper in the long run than baling out water by means of piccotas for his areca gardens. The defendant denied the allegation that there has been any diminution of water resulting in the plaintiff's garden suffering from shortgage of water. It is contended by him that the plaintiff who had no right to take the water from the katta gets an additional right by virtue of the agreement. It is submitted that the plaintiff has no prescriptive right as pleaded by him and it is not true that the plaintiff's lands have suffered in any manner.