Evidently, from the contentions raised by both the parties, the right of inception of channel to draw the water is a question of fact. DW-3, who is the vendor of the land has deposed about the inception of channel earlier also. The Court below found that the channel existed and also noticed that another brother of the plaintiff has filed O.S.No. 256 of 1997 for mandatory injunction of closing of the disputed channel against the defendant and the said suit was dismissed holding that the channel was existed even earlier and the Commissioner also said to have visited the premises.


HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO

 

SECOND APPEAL NO. 1433 OF 2011

 

 

JUDGMENT:

This Second Appeal is filed by the un-successful plaintiff in O.S.No. 193 of 1994.  Suit was filed for injunction restraining the defendant from drawing water to his land from the land of plaintiff or interfering with the land of the plaintiff in any manner.
According to the plaintiff, the suit scheduled property was purchased by his family members and thereafter, they have cultivating the lands and the defendant has purchased Ac. 2.17 cents  of land from the plaintiff’s brother and his family, under a registered sale deed dated 18.3.1994 and that the defendant has to draw water from western land and the plaintiff’s land is on the northern side of the defendant’s land.The defendant is trying to draw water from the field of the plaintiff. Defendant filed written statement denying the contentions that the recitals in the sale deed stipulate that the water has to be drawn from the western side.
 According to the defendant he wants to take the water and dig a channel in the land of the plaintiff to draw water to his land and the lie of the land is west to south and west to East.  The plaintiff was allotted the suit schedule land excluding the channel, which was already existed in the filed of the vendor of the defendant, therefore, the relief of injunction cannot be granted.  After considering the evidence on record, the Trial Court has dismissed the suit and the appellate Court in A.S.No. 161 of 2003 also dismissed the appeal.
Evidently, from the contentions raised by both the parties, the right of inception of channel to draw the water is a question of fact. DW-3, who is the vendor of the land has deposed about the inception of channel earlier also.  The Court below found that the channel existed and also noticed that another brother of the plaintiff has filed O.S.No. 256 of 1997 for mandatory injunction of closing of the disputed channel against the defendant and the said suit was dismissed holding that the channel was existed even earlier and the Commissioner also said to have visited the premises. 
Therefore, in the above circumstances, the claim of the plaintiff does not appear to be true and the right to draw the water is recognised under the sale deed and consequently there are no substantial questions of law to interfere with the Second Appeal.
Accordingly, the Second Appeal is dismissed at the stage of admission.

____________________________

                              N.R.L. NAGESWARA RAO, J                             

 

DATE:    06.07.2012

KA

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.