(1) The appellant in this appeal as well as in the connected appeal R.S.A. 38 of 1962 was plaintiff in the original suit. It would be convenient to dispose of both the appeal and the cross-objections by common judgment.
(2) Plaintiff had filed a suit in the Court of the Additional District Munsiff, Karkal (O. S. 72 of 1958) claiming the following reliefs against the defendants for (1) a declaration that the defendants are not entitled to construct any shed or install any oil pump on the northern sides of the tank situated in Survey No. 56/11 in the portions of Survey No. 56/19 and 56/11 belonging to the plaintiff and for possession of the site of the shed put up by defendants in a portion of S. No. 56/19 belonging to the plaintiff; (2) for a mandatory injunction directing defendants to remove the tiled engine shed built by the defendant on the northern side of the tank in S. No. 56/11 and situated in the portion of S. No. 56/19 on the spot which is marked as 'H' in the plan of the Commissioner, Ex. C; (3) for a declaration that the defendants are not entitled to use the water of the tank in S. No. 56/11 to the Suggi and Kolke Crops or cultivation in S. No. 56/14, 2, 3 and 4; (4) for injunction restraining the defendants or their men from using the water of the said tank for those crops and cultivation of those fields; (5) and directing the defendants to pay Rs. 10/- to the plaintiff through court if the defendants do not remove the same.
(3) The facts of the case briefly stated are: that the plaintiff and defendants are members of Aliyasanthana Family. It is stated that there was a karkar i.e., an agreement dated 26-9-1911 which has been marked as Ex. A-1 in the case between the members of the family under which A Schedule properties were allotted to the branch of the plaintiff, his brother the 3rd defendant and their deceased mother Parameswari. Subsequently by a karkar dated 30-11-23 marked as Ex. A-2 in the case, the plaintiff, 3rd defendant and their mother entered into an agreement by which the first item of the A Schedule properties was allotted to the plaintiff's share and the second item of the said properties was allotted to the branch of the 3rd defendant.
It was the case of the plaintiff that the B Schedule properties fell to the share of one Nagu who is represented by defendants 1 and 2 and that defendants 1 and 2 are enjoying two items of property viz., 56/11(b) southern portion field called Nejikala, Survey No. 56/5 field called Hosagadde and Survey No. 56/20 southern portion; the other two properties survey No. 56/20 southern portion and 56/11(b) were taken by them on Chaigeni lease from defendant-3.
The plaintiff alleged that under Ex. A-1, the water of the tank, which has been marked as 'A' in the report and plan of the Commissioner, Exhibits C-1 and C-2 respectively, was to be used for raising Suggi and Kolake Crops every year in the fields Survey No. 56/8, 11 and 12 by leading water in the channel to be kept in the said field. According to the Karar Ex. A-1 defendants 1 and 2 are entitled to use the water from the tank A for irrigating their fields called Thimaru (Survey No. 56/8) and the other field taken by them on Chaigeni lease, namely, Nijakala (Survey No. 56/11 (b)).
It was the plaintiff's case that originally the water from the tank A was being taken by all the parties from a picota put up to the west of the said tank in S. No. 56/20. Subsequently, about 30 years ago plaintiff shifted his picota to the north of the tank A and he has a been drawing water from that picota since then, defendants 1 and 2 recently installed a water pump worked by oil engine by the side of the plaintiff's picota to the north of the tank and have been irrigating their lands. The installation of the water pump, according to the plaintiff, was done with his permission and it was given only temporarily as licensee. Plaintiff alleged that in the month of November 1952 defendants 1 and 2 threatened to construct a shed in the plaintiff's plot to the north of the tank A where the oil pump had been put up and also to install an electric power pump. In spite of the protests by plaintiff, defendants 1 and 2 have succeeded in putting up a shed on the oil engine as a result of which it has become impossible and dangerous to the plaintiff to bale out water from the tank by means of his picota as a result of which he was unable to raise the suggi crop in his fields and that the crops already raised by him got scorched and he had to sustain loss in respect of them. On the basis of these allegations the plaintiff prayed for reliefs as mentioned above.
(4) Defendants 1 and 2 in their written statement denied the allegations put forth by the plaintiff in his plaint and have stated that the oil engine was installed exactly at the same place where their picota was previously standing and that shed has been constructed at the place where the oil engine had been installed. They contended that they were entitled to erect the shed on the oil engine as they have been using water from the tank as per the terms of the Karar Ex. A-1. They denied that any injury had been caused to the plaintiff by the installation of the oil pump and stated that the plaintiff is not entitled to any relief claimed by him.
(5) Defendant-3 in his written statement pleaded that he is not a necessary party to the suit. He contended that he is not in possession of the land and that he has been wrongly impleaded as a party to the suit. It also held defendant-3 is a necessary party to the suit.
(6) The trial Court on consideration of the material available in the record, found that defendants 1 and 2 were entitled to use water of the tank only for two fields, viz. Najikala i.e., Section 56/11(b) and Thimaru--S. 56/8. It also held that defendants 1 and 2 are not entitled to put up the shed on the oil engine in the plaintiff's land and awarded damages to the plaintiff as claimed by him.
(7) Against the order of the trial Court, defendants 1 and 2 preferred an appealing A. S. 198/59 before the District Judge of South Kanara, Mangalore. Defendant-3 also file of the separate appeal in A. S. 200/1959 on the file of the same District Judge. The learned District Judge disposed of both the appeals by a common judgment.
(8) In appeal A. S. 195 (by defendants 1 and 2), the learned Appellate Judge upheld the finding of the trial Court to the effect that defendants 1 and 2 are entitled to use the water if the tank A to the two fields namely, Najikala and Thimaru and that they are not entitled to use the water of the said tank to the other fields viz. S. No. 56/14, 2, 3 and 4 and passed permanent injunction restraining the defendants from using water of the tank A for those fields. With regard to putting up of the shed by defendants 1 and 2, the learned District Judge was of the view that as the defendants 1 and 2 are entitled under the Karar Ex. A. 1 to bale out water, they are also entitled to bale it out by an oil pump, and since the shed was necessary for the protection of the oil pump, he rejected the plaintiff's claim with regard to the prayer for a mandatory injunction restraining the defendants from putting up the shed. He was however, of the opinion that it is borne by the report of the Commissioner (Ex. C-4), that the plaintiff's picota and the oil engine put up by the defendants 1 and 2 cannot be worked simultaneously.
He, therefore, directed that defendants 1 and 2 should use water pump, which is put up on the northern side of the tank, only for one hour between 7 and 8 A.M. and at no other time. With regard to defendant 3, the learned District Judge was of the view that as he (defendant-3) was neither in possession of any of the suit lands nor it has been alleged that he had caused any obstruction to the plaintiff, defendant-3 was not a necessary to the suit. He therefore, allowed the appeal of defendant-3.
(9) Shri Ullal, the learned Advocate for the plaintiff, advanced three contentions before me. Firstly, he urged that the finding of the lower appellate Court that defendants 1 and 2 are entitled to construct the shed over the oil engine, is based on an erroneous reading of the evidence and therefore it is vitiated; secondly, he contended that the order of the lower Court is vitiated on the ground that the lower appellate judge, on a consideration of the provisions of the Indian Easements Act of 1882 has come to the conclusion that the defendants 1 and 2 are entitled to draw the water from the tank A and they are also entitled to install oil pump and construct the shed over the said pump. Secondly he stressed that there was no pleading to that effect on behalf of the parties, no evidence was let in that behalf, and no issues in that regard had been framed. Therefore, the finding of the Easements Act is vitiated.
The alternate argument of the learned counsel was that even assuming that the provisions of the Easement Act are applicable, the finding of the Court below is vitiated due to misunderstanding of the provisions of the Easements Act. In other words, the lower Court, has erred in not applying property the provisions of the Easements Act to the present case. His last contention was that the finding of the lower Court that defendant-3 was not a necessary party to the suit is erroneous.
(10) After fully discussing the evidence adduced by the parties in the case, the lower appellate Judge came to the conclusion that it has been established that the defendants 1 and 2 had been bailing out water from the Picota where the Oil pump is situated, namely point marked 'H' for irrigating the fields for about thirty years; and on the basis of this finding he was of the opinion that the defendants 1 and 2 had acquired prescriptive right. It is borne from the report of the commissioner. Exhibit C-1, that there are no channels or even traces of channels leading from the point 'Q' on the western side of the tank A. Further, it is not disputed that the water from the Picota of the plaintiff and the water drawn by the oil engine of defendants 1 and 2 goes through the same channel marked as 'KK' in the plan of the Commissioner. The evidence of the witnesses is supported by the report of the Commissioner.
There appears to be no justification to differ from the conclusions arrived at by the lower appellate Judge on consideration of evidence. That apart as mentioned above, on consideration of the evidence, the lower appellate Court has given its finding which is essentially a finding of fact which cannot be interfered with in Second Appeal.
(11) The learned Advocate for the appellant contended that it is in the evidence that with the permission and consent of the plaintiff, defendants 1 and 2 have installed the oil pump about 6 to 7 years ago. The user of the water by installation of oil engine as alleged by the plaintiff has not been denied by defendants 1 and 2.
That being so he urged that defendants 1 and 2 could not be said to have acquired any prescriptive right to draw water by the oil engine. The lower Court was wrong in coming to the conclusion that defendants 1 and 2 have acquired such a right. He further argued in this connection that to work the oil pump the defendants will necessarily have to go to the plaintiff's land which would not only be a deprivation of right of property to the plaintiff but would also amount to allowing the defendants to commit wrongful act of trespass. Reliance was placed by the learned counsel on Sections 22 and 28 of the Easements Act.
Mr. Karanth, the learned Advocate for defendants 1 and 2 argued that the right which had been granted by the Karar, Exhibit A-1, was for taking water from the tank 'A' for the cultivation of the fields. He submitted that either the mode or the manner of enjoying the said right has not been described in the document. Therefore, defendants 1 and 2 are entitled to alter or change the mode of enjoyment of the right. He stressed that by the installation of oil engine, it cannot be said that additional burden had been imposed on the plaintiff. On the other hand, according to him, it is an accessory right for the enjoyment of the easement to which the defendants 1 and 2 are entitled under the Karar Ex. A-1.
It is true, as contended on behalf of the appellant, that the accessory rights mentioned in S. 24 of the Indian Easements Act are not intended to deprive the plaintiff i.e., a servient owner, of his right of property unless such a result is absolutely essential. But, the dominant owner has a right to do everything requisite to secure to himself the fullest advantage of his servitude, provided in exercising such a right he does not impose additional burden on the servient tenement. In other words, he would be entitled under Section 24 of the Indian Easements Act to do in the servient tenement all acts necessary to secure the full enjoyment of the easements, subject to the limitation indicated in that section, and such acts, on the part of the defendants, the dominant owners cannot be said to amount to wrongful acts as argued on behalf of the appellants.
(12) Thus, it cannot be held that an additional burden has been imposed on the plaintiff by allowing defendants 1 and 2 to draw water by means of working the oil engines. As stated above the parties have based their rights to draw water from the tank 'A' on Karar Ex. A-1. It is a well settled principle that the extent of an easement other than an easement of necessity and also the mode of its enjoyment must be fixed with reference to the purpose for which the right was acquired. Ex. A-1, is the document from which the parties acquired the right to draw water from the tank 'A'. No limitation has been prescribed therein with regard to the mode or manner of enjoyment of the right. Therefore, in the absence of anything to that effect in Ex. A-1, it can validly be inferred that the intention of the parties was not to prescribe any limitation on the mode of enjoyment of the right given to them by that document. In that view of the matter it is not possible to hold that by the user of defendants of their rights to draw water by oil pump from the tank 'A' and additional burden has been imposed on the plaintiff.
It was then contended by the learned advocate for the appellant that even if it is held that the defendants 1 and 2 are entitled to install the oil pump to draw water from the tank A, they are not entitled to construct the shed over the oil engine. He stressed that the construction of such a shed cannot be regarded as accessory right for the enjoyment of the prescriptive right. Whereas the learned Advocate for defendants 1 and 2 argued that the shed which has been constructed just covers the oil engine, the dimension of the said shed is 81/2 x 81/2. He urged that when once it is held that defendants 1 and 2 are entitled to install the oil pump to the north of the tank A at the point H, one cannot escape the result they are also entitled to have the shed constructed over it.
It seems to me that the argument of the learned counsel for the respondents has substance in it. The shed is merely a construction put up in order to safeguard and preserve the oil engine. As it would appear from the report of the Commissioner, the dimension of the shed is 81/2 sq. feet. The relevant portion of the Commissioners report is as follows :
'In the northern edge of the tank A there is a shed marked H in the plan which is said to have been constructed recently by the defendants 1 and 2. It is made of laterite stone and is 81/2 square feet structure.'
Thus, it is clear that the purpose for which the shed has been constructed is solely for the protection of the oil engine. There is nothing on the record to show otherwise. Therefore, the construction of the shed on the oil engine cannot be regarded as an aggravation of the servitude. Further, nowhere the Commissioner has apprehended any danger in this report that by drawing water by oil engine it would effect the supply of water by working the picota of the plaintiff. All that is stated in his report is that both the plaintiff's picota and the oil engine cannot be worked simultaneously and at the same time. Therefore, neither the provisions of Section 22 nor of Section 28 of the Easements Act can be helpful to the plaintiff. Hence, the first contention advanced on behalf of the appellant is not sustainable.
It has been emphasised on behalf of the appellant that the finding of the lower Court is vitiated because there was no plea, no evidence and no issue framed with regard to the Easements Act. It has been contended on behalf of the respondents even conceding the contention advanced on behalf of the appellant, the irregularity pointed out cannot be regarded as substantial error or defect in the procedure so as to vitiate the finding arrived at by the lower appellate Court. Reliance was placed on a decision of the Supreme Court Ramchandra v. Ramalingam, : 3SCR604 . There appears to be considerable force in the argument of the learned counsel of the respondent.
On the evidence produced in the case, the lower Court found that the defendants 1 and 2 had acquired prescriptive right. Therefore, the provision of the Easements Act are attracted to the present case. If the learned appellate Judge had adverted towards the same, it cannot be said that there had been an error of substantial nature so as to vitiate his finding. When once the provisions of the enactment are attracted the Court is not absolved from its duty of following the clear provisions of law which are applicable to the case. Evidently, in view of the decision 1 have taken, as observed above, it cannot be said that the lower appellate court has misinterpreted the provisions of the Easements Act or that there was misunderstanding with regard to the same by the lower Court.
(13) The last contention which had been advanced on behalf of the appellant was that the lower Court was wrong in holding that defendant-3 is not necessary party to the suit. I find sufficient strength in that contention.
The plaintiff had claimed a declaration to the effect that defendants 1, 2 and 3 are not entitled to use the water of the tank by raising Suggi and Kolke crops in survey No 56/2, 3 and 14 along with other reliefs. The first Court has granted the relief to the plaintiff as prayed for by him with regard to survey No. 56/2, 3, 4 and 14. The finding of the said Court has been upheld by the lower appellate Court. Admittedly, defendant-3 is the owner of survey No. 56/4. In view of the relief sought by the plaintiff, defendant-3, to my mind, is a necessary party being the owner of survey No. 56/4. Therefore, in my opinion, the lower appellate Court was wrong in holding that defendant-3 was not a necessary party to the suit.
(14) With regard to the cross-objection it has been seriously disputed on behalf of the respondent before me that the order of the lower Court restricts the use of the water by the defendant for an hour every day, is based on no material. It is not clear from the order of the lower Court as to on what material it has reached that conclusion. The only reference which has been made in the judgment of the lower appellate Court is to the report of the Commissioner. The Commissioner in his report says that there is no difficulty to the plaintiff's picota being worked and the only difficulty he pointed out is that both the picota and the oil pump cannot be worked at the same time. Hence, the report of the Commissioner cannot be in any way helpful in prescribing the item of drawing the water by pump or by picota.
There is no material in record which would enable the Court to arrive at a definite conclusion in that connection. Evidently, the matter requires further enquiry. This being so, this case should be remanded to the lower appellate Court for taking such evidence as the parties may choose to adduce and dispose of the case with regard to the fixing up of period for the use of water by the parties.
(15) In the result, the appeal, subject to the above modification is dismissed. The cross-objections are allowed and the case is remanded to the lower appellate Court for disposal in accordance with law as per the observations made above. In the circumstances of the case, parties shall bear their own costs.
(16) Case remanded.