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Karnataka High Court
SHAMA RAO HANUMANTHARAO - Appellant
Versus
STATE OF KARNATAKA - Respondent
Decided On : 01-01-81
R.S.A. : 1023 of 1974
S. 80 CPC - Suit Maintainability - L. R. Act, S. 63 - Irrigation Act, S. 69 - [S. 80 CPC] - [Suit Maintainability] - [L. R. Act, S. 63, Irrigation Act, S. 69] - The court affirmed that a suit filed by plaintiffs, some of whom had not issued notice under S. 80 of the Code, was not maintainable. The judgments and decrees of the Courts below were affirmed on this ground, and there were no grounds to interfere with their decisions.
Fact of the Case:
The plaintiffs filed a suit against the State of Karnataka and others, claiming entitlement to draw water from a government irrigation tank and seeking various reliefs. The defendants argued that the suit was not maintainable under S. 63 of the L. R. Act and S. 69 of the Irrigation Act, and that the suit notice under S. 80 of the Code was not valid.
Finding of the Court:
The court found that the suit filed by plaintiffs, some of whom had not issued notice under S. 80 of the Code, was not maintainable. The judgments and decrees of the Courts below were affirmed on this ground.
Issues: 1. Suit maintainability under S. 80 CPC. 2. Whether the suit is barred under S. 63 of the L. R. Act or under S. 69 (5) of the Irrigation Act. 3. Whether the suit is instituted within six months from the date of the act complained of.
Ratio Decidendi: The court held that a suit filed by plaintiffs, some of whom had not issued notice under S. 80 of the Code, was not maintainable, affirming the judgments and decrees of the Courts below.
Final Decision: The court dismissed the second appeal with costs of respondent No. 1.
( 1 ) THIS appeal is by 17 plaintiffs, out of the original 67 plaintiffs and is directed against the judgment and decree dated 1-10-1973 of the Civil Judge, Haveri in r. A. No. 72 of 1971 affirming the judgment and decree dated 14-8-1968 of the munslff Haveri in L. C. Suit No. 12 of 1967.
( 2 ) AT Bommanahalli village of Hanagal Taluk, dharwar Dt. there is a Government irrigation tank bearing R. S. No. 176. In the earlier revenue records, the tank had been given R. S. No. 97 of needasangi village, which is now a beeharak' or an abandoned village. Ever since the said tank was constructed or at any rate till about 1966 or so, there were two sluices or out-lets regulating the supply of water to the command area or 'acha- kat' of the said tank. On an examination of the requirements of the land holders of the command area, in March, 1966, according to defendant No. 1, but some time in March, 1967 according to the r. 23 plaintiffs, defendant No. 1 has constructed one more sluice or out-let to the said tank.
( 3 ) BEFORE the new sluice could be opened, as many as 67 persons, claiming themselves to be the owners or tenants of the lands situated in the command area of the tank, instituted L. C. suit No. 12 of 1967 on 19-1-1967 in the Court of the munsiff, Haveri against the State of karnataka arrayed as defendant No. 1 and four other persons for a declaration (I) that they were entitled to draw. water from the previous two sluices of the tank (ii) that the construction of the new sluice was without the authority of law and illegal; (iii) for a permanent injunction to close down the new sluice; (iv) for a permanent injunction to regulate the supply of water only from the previous two sluices as before without undertaking any kind of work, interfering with the flow of water from the said two sluices and (v) for damages that they would suffer pending determination of their suit.
( 4 ) IN order to sustain the aforesaid novel and extremely doubtful reliefs, the plaintifs alleged that they had acquired an absolute and indefeasible right to draw water from the two sluices of the tank from time immemorial. On this basis, the plaintiffs urged that defendant No. 1 cannot construct a new sluice at the instigation of defendants 2 to 5 to interfere with their rights. They alleged that they had earlier approached the officers of the public Works Department and Revenue department for redressal of their grievance, but those officers had turned their deaf ears. The plaintiffs alleged that the cause of action for the suit arose in the month of March, 1966, when defendant no. 1 started constructing the new sluice for the tank. Lastly, they alleged that they had issued necessary suit notice under S. 80 CPC on the Deputy Commissioner, Dharwar on 3-6-1966.
( 5 ) IN resisting the plaintiffs' suit, defendant No. 1 pleaded that the new sluice had been constructed as early as in march, 1966, on being satisfied of its imperative necessity to supply water to all the land holders of the command area. Defendant No. 1 alleged that the existing two out lets were not effectively irrigating all the lands, there was loss of water and the construction of a new sluice was necessary for the preservation of the tank. Defendant No. 1 asserted that the contract of construction of new sluice had been awarded to defendant No. 2, who had constructed the same in accordance with the terms and conditions of the contract and the technical requirements stipulated thereto by its technical experts.
( 6 ) DEFENDANT No. 1 urged that the suit filed by the plaintif was not maintainable under S. 63 of the Karnataka Land revenue Act of 1964 (hereinafter referred to as the L. R. Act) and S 69 of the Karnataka Irrigation Act of 1969 (hereinafter referred to as the Irrigation Act ). Secondly, it urged that the suit had not been instituted by the plaintiffs within six months from the date of the act complained of and the same was barred by time. Lastly it urged that the suit
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