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