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2011 Supreme(MP) 759
2012(1) JLJ 357
A.K. Shrivastava, J.
Mangilal v. Mangilal
Second Appeal No.235 of 1996 (Indore); Decided on 12.10.2011.
Sandeep Kochatta for appellants;
P.C. Vaya and B.L. Tripathi for respondent No.1;
Pramod Mitha, Government Advocate for respondent No.2.
Headnote:(1) Land Revenue Code, 1959 (M.P.) -- S.117 -- M.B. Land Revenue and Tenancy Act, 1950 -- S.52 -- khasra entries in regard to taking water for irrigation from well of defendant No.1 -- value of -- no khasra entries filed in rebuttal -- such entries may be presumed to be correct. AIR 1963 SC 361 followed. [Paras 12 to 14
(2) Easements Act, 1882 -- Ss.20, 2(a) and 7(g) -- entitlement of easementary right -- claim of right of taking water for irrigation from well of defendant No.1 -- water having been taken for last more than 43 years -- it proved bykhasra entries and oral evidence -- still owner has all right to collect and dispose within his own limits of all water under land -- water on its surface does not flow in defined channel -- water in well is beneath surface -- no defined channels are beneath surface -- plaintiffs have no easementary right to take water from well of defendant No.1.
The question is whether they have acquired easementary right or not.
Held : The plaintiffs have not at all acquired any easementary right and in this regard section 7 of the Indian Easements Act, 1882 (in short the ‘Act‘) is quite clear which speaks about the restriction of easement on certain rights. If the facts of the present case is tested on the touchstone and anvil of illustration (g) to this section it is clear that the owner is having all the right to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel. Thus, I am of the view that because the water in the well is beneath the surface and no defined channels are beneath the surface, therefore, the plaintiffs are not having any easementary right to take water from the well of the first defendant. (1985) AC 587 followed. AIR 1954 Mysore 184 held per incurium.
The substantial question of law is thus answered that although the two Courts below did not err in holding that appellants-plaintiffs have not acquired easementary right.
(3) Specific Relief Act, 1963 -- Ss.38 and 2(a) -- perpetual injunction -- entitlement of -- plaintiffs are having been taking water for irrigation from well of defendant No.1 for last more than 43 years -- it proved by khasra entries and oral evidence -- that right infringed in contravention to obligation -- plaintiffs are entitled for decree of injunction.
Held : Section 38 of the Specific Relief Act, 1963 may be taken into consideration which speaks about perpetual injunction and according to sub-section (1) of section 38 of this Act, a perpetual injunction may be granted to the plaintiffs to prevent the breach of an obligation existing in his favour, whether expressly or by implication. The word ‘obligation‘ has also been explained in the definition clause of the said Act and according to section 2(a) ‘obligation‘ includes every duty enforeceable by law. Because the plaintiffs are taking water for the last more than 43 years from the Well of the first defendant and if that right is infringed by the first defendant in contravention to the obligation which is existing, certainly a decree of perpetual injunction in that regard can be granted against the first defendant that without obtaining due procedure it cannot stop plaintiffs to take the water from his Well. [Para 17
¼1½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ && /kkjk 117 && e/; Hkkjr Hkw&vkxe rFkk d`"kdkf/kdkj fo/kku] 1950 && /kkjk 52 && izfroknh Ø-1 ds dqvk¡ ls flapkbZ ds fy, ikuh ysus ds laca/k esa [kljk izfof"V;k¡ && dk egRo && [kaMu esa dksbZ [kljk izfof"V;k¡ izLrqr ugha dh xbZa && ,slh izfof"V;ksa ds lgh gksus dh mi/kkj.kk dh tk,xhA , vkb vkj 1963 ,l lh 361 vuqlfjrA ¼iSjk 12 ls 14
¼2½ lq[kkpkj vf/kfu;e] 1882 && /kkjk 20] 2¼d½ rFkk 7¼N½ && lq[kkpkj vf/kdkj dh gdnkjh && izfroknh Ø-1 ds dqvk¡ ls flapkbZ ds fy, ikuh ysus ds vf/kdkj dknkok && xr 43 o"kZ ls vf/kd le; ls ikuh fy;k tkrk jgk && ;g [kljk izfof"V;k¡ rFkk ekSf[kd lk{; ls lkfcr && fQj Hkh Lokeh dks Hkwfe ds uhps ds leLr ikuh dks viuh Lo;a dh lhekvksa ds Hkhrj laxzg rFkk izca/k djus ds leLr vf/kdkj gSa && ikuh bldh Åijh lrg ij ifjHkkf"kr ugj@ukyh esa ugha cgrk && dqvk¡ esa ikuh lrg ds uhps gSa && lrg ds uhps ugj ifjHkkf"kr ugha gS && oknhx.k dks izfroknh ds dqvk¡ ls ikuh ysus dk lq[kkpkj vf/kdkj ugha gSA
iz‘u ;g gS fd D;k mUgksaus lq[kkpkj vf/kdkj vftZr fd, gSa ;k ughaA
vfHkfu/kkZfjr % oknhx.k dks fdlh izdkj dk lq[kkpkj vf/kdkj fdafpr mikftZr ugha gS rFkk bl laca/k esa Hkkjrh; lq[kkpkj vf/kfu;e] 1882 ¼la{ksi esa vf/kfu;e½ dh /kkjk 7 iw.kZ:is.k Li"V gS tks lq[kkpkj ds dfri; vf/kdkjksa ds fo"k; esa jksd O;Dr djrh gSA ;fn izLrqr izdj.k ds rF;ksa dk bl dlkSVh rFkk bl /kkjk ds Li"Vhdj.k ¼N½ dh fugkbZ esa ijh{k.k fd;k tkrk gS rc Li"V gS fd Lokeh dks Hkwfe ds uhps ds leLr ikuh dks tks ifjHkkf"kr ugj esa ugha cgrk rFkk bldh lrg ij leLr ikuh dk tks ifjHkkf"kr ugj esa ugha cgrk mldk viuh Lo;a dh lhekvksa ds Hkhrj laxzg rFkk izca/k djus ds leLr vf/kdkj gSaA bl izdkj esjs er esa D;ksafd dqvk¡ esa ikuh lrg ds uhps gS rFkk ifjHkkf"kr ugjsa lrg ds uhps ugha gSa] blfy,] oknhx.k dks izFke izfroknh ds dqvk¡ ls ikuh ysus ds fdlh izdkj ds lq[kkpkj vf/kdkj ugha gSaA ¼1985½ ,l lh 587 vuqlfjrA , vkb vkj 1954 eSlwj 184 vuo/kkurk ds dkj.k gksuk Bgjk;k x;kA
bl izdkj fof/k ds lkjoku~ iz‘u dk mÙkj fn;k tkrk gS fd ;|fi nksuksa fupys U;k;ky;ksa us ;g Bgjkus esa =qfV ugha dh gS fd vihykFkhZx.k&oknhx.k dks lq[kkpkj vf/kdkj mikftZr ugha gq, gSaA
¼3½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 38 rFkk 2¼d½ && ‘kk‘or O;kns‘k && dh gdnkjh && oknhx.k foxr 43 o"kZ ls vf/kd le; ls izfroknh Ø-1 ds dqvk¡ ls flapkbZ ds fy, ikuh ysrs jgs && ;g [kljk izfof"V;ksa rFkk ekSf[kd lk{; ls lkfcr && bl vf/kdkj dks nkf;Ro ds mYya?ku esa Hkax fd;k x;k && oknhx.k O;kns‘k dh fMØh ds gdnkj gSaA
vfHkfu/kkZfjr % fofufnZ"V vuqrks"k vf/kfu;e] 1963 dh /kkjk 38 ij fopkj fd;k tk ldrk gS tks ‘kk‘or O;kns‘k ds fo"k; esa O;Dr djrh gS rFkk bl vf/kfu;e dh /kkjk 38 dh mi/kkjk ¼1½ ds vuqlkj] oknhx.k dks mlds i{k esa fo|eku nkf;Ro ds Hkax dks jksdus ds fy, ‘kk‘or O;kns‘k iznku fd;k tk ldrk gS] pkgs izR;{kr% ;k foo{kk }kjkA ‘‘kCn ^nkf;Ro* mi;qZDr vf/kfu;e ds ifjHkk"kk [kaM esa Hkh Li"Vhd`r gS rFkk /kkjk 2¼d½ ds vuqlkj ^nkf;Ro* fof/k }kjk izorZuh; izR;sd drZO; dks lfEefyr djrk gSA D;ksafd oknhx.k foxr 43 o"kZ ls vf/kd le; ls izFke izfroknh ds dqvk¡ ls ikuh ys jgs gSa rFkk ;fn izFke izfroknh }kjk bl vf/kdkj dk tks fo|eku gS mldk nkf;Ro ds mYya?ku esa Hkax fd;k tkrk gS] fuf‘pr :i ls izfroknh ds fo:) ‘kk‘or O;kns‘k dh fMØh iznku dh tk ldrh gS fd lE;d~ izfØ;k viuk, fcuk ;g vius dqvk¡ ls oknhx.k dks ikuh ysus ls ugha jksd ldrkA
1. The unsuccessful plaintiffs by taking the aid of section 100 CPC have assailed the judgment and decree passed by learned two Courts below dismissing their suit.
2. The plaintiffs-appellants filed a suit against defendants-respondents for declaration and injunction in respect of a Well which is the subject-matter of the suit. The name of Mangilal is common between the first plaintiff and first defendant. The father’s name of first plaintiff Mangilal is Veniramji while that of first defendant is Sawaji.
3. According to the plaintiffs, the disputed Well is in the land of first defendant and he (first defendant) has been shown to be the Bhumiswami in the revenue record of the said land. Further it has been pleaded by the plaintiffs that adjoining to the first defendant’s land, the land of plaintiffs is situated and they are irrigating their agricultural land from the disputed Well which is in existence of first defendant’s land. Further it has been pleaded by the plaintiffs that for the last more than 60 years they are irrigating their lands from the water of the Well of the first defendant. It has also been pleaded that defined channels to irrigate the land are also in existence adjoining to the surface of the Well and therefore from these channels, after uplifting the water from the disputed Well, it flows to the land of plaintiffs and thus they are having easementary right on the Well of the first defendant.
4. It is also the case of the plaintiffs that in the relevant column of the revenue record there is an entry of the existence of Well and further there is an entry that plaintiffs are taking water from the said Well and this entry in the revenue record was never changed and is still continuing. Hence, on the basis of the easement, the plaintiffs have filed a suit for declaration that it be declared that they are entitled to take water from the Well of the first defendant. By amending the plaint they have also pleaded that because they are taking the water to irrigate their land for the last 60 years, a decree of injunction be granted against the defendants that they should not create any obstruction, while taking water by the plaintiffs from first defendant’s Well.
5. The first defendant by filing written statement denied the plaint averments and also denied that plaintiffs are having any easementary right on his Well. The other averments made in the plaint are also denied.
6. The learned trial Court framed necessary issues and after recording the evidence of the parties dismissed the suit. The first appeal which was filed by the plaintiffs has been dismissed by the impugned judgment and decree.
7. In this manner this second appeal has been filed by the appellants.
8. This Court on 27.3.1997 has admitted the second appeal on the following substantial question of law :
“Whether, the Courts below have committed an error of law in holding that the appellants-plaintiffs have not acquired easementary rights?”
9. The contention of Shri Sandeep Kochatta, learned counsel for the appellants is that there is overwhelming documentary as well as oral evidence on record in order to demonstrate that plaintiffs are having easementary right to take water from the Well of the first defendant to irrigate their land and therefore learned two Courts below erred in substantial error of law in dismissing the suit. In support of his contention learned counsel has placed reliance on Shankarariah v. Ramiah [AIR 1954 Mysore 184]. It is also put forth by him that even if it is held that plaintiffs are not having any easementary right, since it is proved from the record that the plaintiffs are irrigating their land from the water of the Well of first defendant, therefore, in these state of affairs a decree of injunction should be granted restraining first defendant not to obstruct in taking the water from his Well.
10. On the other hand Shri P.C. Vaya and Shri B.L. Tripathi, learned counsel for the respondent No.1 argued in support of the impugned ju
