P.S. Narayana, J.
1. Heard Sri Ramchander Rao, counsel representing the appellants and Sri Ram Mohan, counsel representing the respondents.
2. The unsuccessful plaintiffs in both the Courts below are the appellants in the present Second Appeal. The parties are referred to as plaintiffs and defendants as arrayed in the trial Court for the purpose of convenience. The appellants/plaintiffs instituted the suit O.S. No. 124/81 on the file of Principal District Munsif, Peddapuram for declaration of their right to take water from S. No. 310/8 tumu to their lands through S.M. Bodi, for a mandatory injunction directing the respondents/defendants to restore S.M.Bodi to its original position of a width of 2 feet excluding bonds on either side and a depth of three feet, or permanent injunction restraining the defendants and their men from interfering with the said S.M. Bodi and from obstructing the plaintiffs and their men from taking water from S. No. 310/8 tank through S.M. Channel or bodi to the plaintiffs' land, and to recover damages and for costs of the suit. The trial Court on the strength of the respective pleadings of the parties had settled certain Issues and had recorded the evidence of PW-1 and PW-2 and DW-1, marked Exs.A-1 to A-10 and Exs.B-1 to B-9 and on appreciation of both oral and documentary evidence had ultimately dismissed the with without costs and aggrieved by the same, the unsuccessful plaintiffs had preferred A.S. No. 9/88 on the file of Subordinate Judge, Peddapuram and the learned Subordinate Judge, Peddapuram declined to interfere with the findings recorded by the Court of first instance and had dismissed the Appeal with costs throughout, and aggrieved by the same the present Second Appeal is filed by the unsuccessful plaintiffs.
3. Sri Ramchander Rao, the learned counsel representing the appellants/plaintiffs had drawn my attention to Ground No. 10(a), (b) and (c) and had submitted that these are the substantial questions of law which arise for consideration in the Second Appeal. The learned counsel also submitted that apart from these questions, yet another substantial question of law is in relation to the interpretation of the recitals of the sale deed Ex.A-1 and the learned counsel had pointed out to Ground No. 8 in this regard and had submitted that in view of the facts and circumstances, the said question also may have to be considered as a substantial question of law. The counsel had taken me through the findings which had been recorded both by the trial Court and the appellate Court. The learned counsel also had pointed out certain findings recorded by the Court of first instance while answering Issue No. 5 in particular to the effect that the plaintiffs are entitled to take water from the tank as of right from madi to madi as per Ex.A-1 sale deed and not from S.M. Bodi. The learned counsel also submitted that except the evidence of DW-1, no other witnesses were examined and on the contrary apart from the evidence of PW-1 the evidence of PW-2, one Sri C. Krishna Rao, Advocate - the common vendor of the plaintiffs and the defendants, is available on record and if the recitals of Ex.A-1 are carefully scrutinized coupled with the evidence of PW-2, it is clear that the plaintiffs are entitled to their right to take water through S.M. Bodi. The learned counsel also explained that by the date of inspection by the Commissioner, the said Bodi might have not been in existence in view of the lapse of time and that by itself cannot be a ground to negative the relief. The learned counsel also submitted that when there is some ambiguity in interpreting the recitals of Ex.A-1, the evidence of the common vendor PW-2 will be crucial and in this view of the matter, both the Courts had totally erred in negativing the relief to the plaintiffs.
4. Per contra, Sri Ram Mohan, the learned counsel representing the respondents/defendants had contended that for certain reasons PW-2 - the common vendor, could have taken a particular stand, but however the documentary evidence is of primary importance and the same should be preferred to that of the oral evidence. The learned counsel also had pointed out the evidence of DW-1 and also Exs.B-1 to B-9 and had contended that at any stretch of imagination in the light of these documents, it cannot be said that the plaintiffs have established their right to take water through the alleged S.M. Bodi. The learned counsel also had explained the recitals in Ex.A-1 and had pointed out to the concurrent findings recorded by both the Courts relating to the non-existence of the alleged channel and also the other findings of fact recorded on appreciation of both the oral and documentary evidence. The learned counsel while concluding submitted that in view of the limitations in reappreciation of evidence, inasmuch as findings had been recorded by both the Courts on factual aspects, it cannot be said that any substantial question of law is involved in the Second Appeal for consideration and even otherwise since the plaintiffs are unable to point out any perversity in the findings recorded by both the Courts below, such findings need not be disturbed at the stage of Second Appeal.
5. Heard both the counsel at length.
6. The case of the plaintiffs as pleaded in the plaint is as stated hereunder. It is stated that the entire S. No. 310/1 and the Western half of S. No. 310/8 of Katravulapalli village originally belonged to Chavali Krishna Rao, Advocate, Peddapuram and his sons. S. No. 310/8 is the tank portion and S. No. 310/1 is the cultivated land. Plaintiffs and defendants 1 to 10 purchased portions in S. No. 310/1 and 8 under different sale deeds. Though the sale transactions are at one and the same time, sale deeds were executed at different times. A sketch is filed herewith showing the portions purchased by the plaintiffs and defendants 1 to 10 and the rest of the land etc. ABCD is the plaintiffs' land. The North Western portion of the plaintiffs' land, about 95 cents in extent, is high level dry land and the remaining portion, about Ac.1-05 cents in extent, is low level wet land. There used to be a bodi or channel marked 'SM' from sluice S of the tank upto the middle of the 1st defendant's land with a width of two feet excluding bunds on either side and a depth of one yard for the flow of tank water into the lands of the defendants 1 to 10 and the wet land i.e., Ac.1-05 cents of the plaintiffs. The lands are being cultivated so for the last about 15 years. The plaintiffs and the defendants 1 to 10 are all given land in tank portion in S. No. 310/8 and proportionate shares in the tank water along with the cultivated land portions. Thus, the plaintiffs purchased Ac.2-00 cultivated land, about 0-95 cents dry and about ac.1-05 cents wet and 0-63 cents in S. No. 310/8 and proportionate portion i.e., 63/1380th share in tank water. Apart from the purchase by the plaintiffs, they cultivated their wet portion of land by taking water from the tank in S. No. 310/8 through S.M. Bodi. It was further pleaded that during 1980-81 at the beginning of the agricultural season, when the plaintiffs are taking water to the wet 'madis' through S.M. Channel as usual, the male defendants of 1 to 10 and males of the female defendants of 1 to 10 obstructed the plaintiffs from taking water as usual. Then the plaintiffs raised dispute through Yeleti Sathiraju, Jeldindi Veera Bhadra China Prasadarao, Vatsavayi Ramachandra Raju, Chavali Krishna Rao and others. The elders advised the defendants 1 to 10 not to cause unlawful obstruction to the plaintiffs in taking water through S.M. Channel as usual and not to cause unlawful loss to them. As the above said mediators advised the plaintiffs not to rush to Court, the plaintiffs waited. As the plaintiffs are Viswabrahmins who belong to minority community and as the defendants belong to Telaga Kapu community which is a majority community, the plaintiffs wanted to settle the dispute amicably through mediators. The elders tried their best for a long time, but in vain. The defendants 1 to 10 did not heed the advise and did not allow the plaintiffs to take water. The plaintiffs have to leave their wet 'madis' fallow this year i.e., during 1980-81. During 1980-81 there are good rains and the paddy crop is very good and it yielded not less than 25 bags per acre in the defendants' lands and other lands in the village. The net yield after deducting expenses in the plaintiffs' wet land would be not less than 20 bags had they been allowed to cultivate their lands. The loss sustained by the plaintiffs is due to the alleged acts of the defendants 1 to 10 and their men only. It was further pleaded that the plaintiffs got issued notices to the defendants 1 to 10 calling upon them to make good the loss sustained by them and not to cause obstruction in future. The defendants 1 to 10 got issued litigious reply with false allegations. After the exchange of lawyer notices learning that the plaintiffs are preparing to file a suit, the defendants 1 to 10 high handedly covered up the channel on 23-1-1981. The protests of the plaintiffs are not heeded and the police report proved futile. The plaintiffs are entitled to claim damages and to seek permanent injunction against the defendants restraining them from ever interfering with the said bodi or with the right of the plaintiffs to take water form the tank in S. No. 310/8 through S.M. Channel to their wet 'madis', and for declaration and mandatory injunction directing the defendants to restore S.M. Channel to its original position. Defendants 11 to 15 are the legal representatives of Polisetti Ramarao who died before filing the suit. As they are the present owners, the plaintiffs are entitled to the reliefs prayed for against them also.
7. Defendants 4 to 6 filed written statement which was adopted by defendants 1, 2, 7 and 10. In the said written statement it was pleaded that the suit is not just and maintainable and the allegations in the plaint are false. It was admitted that the land and tank bearing S. No. 310/1 and 310/8 of Katravalapalli belonged to Sri Chavali Krishnarao and his sons and S. No. 310/1 is cultivable land and S. No. 310/8 is tank. It was further pleaded that these defendants and other defendants purchased different plots of the land under different sale deeds. The plaintiffs also purchased some land out of it but the said purchase is long after the purchase by these defendants and the sketch filed with the plaint is not correct. It was also pleaded that Meraka Kalva is not shown therein and the S.M. Bodi is an invention and it was never in existence. The vendors never stated nor reserved the same at the time of sales in favour of these defendants which was long prior to plaintiffs alleged purchase. Even if the plaintiffs' sale deeds are true, they will not bind these defendants as the vendors have no right to give any non-existing right in them. The vendors used to take water to wet land from 'madi' to 'madi' but not otherwise. They have no right to create any new rights to any one after the sale in favour of the defendants. It was further pleaded that it is false to say that the plaintiffs cultivated their land after purchase by taking water from the tank in S. No. 310/8 through the alleged S.M. Bodi. The tank in S. No. 310/8 is a rain fed tank. Whenever there are rains water will come and it will be stored. The water to the wet lands will be taken from 'madi' to 'madi' as already stated and no Bodi or channel was there at any time as claimed. The plaintiffs and the elders alleged are wealthy and big ryots whereas these defendants are small farmers. As such the plaintiffs want to create new rights and facilities to their lands purchased at the cost of these defendants no doubt to grab the small portion of lands purchased by these defendants. If the village S.M. Bodi or channel is allowed, there will be no land to cultivate by these defendants. It was also pleaded that there was no mediation at all and there is no need or scope for the defendants to interfere in any with the plaintiffs' enjoyment of their land if they enjoy it with the existing rights. The plaintiffs cannot claim any new rights taking advantage of the false recitals obtained in their sale deeds and the plaintiffs are put to strict proof of the allegations. It is not admitted that the land purchased by the plaintiffs is wet land portion of vendors. It is further pleaded that to the notice issued by the plaintiffs, these defendants got issued proper reply with facts. There is no need for the defendants to close the imaginary S.M. Bodi or channel high-handedly. The plaintiffs are not entitled to the reliefs prayed for. It was also pleaded that these defendants never obstructed the right of taking water to the wet land from S. No. 310/8 as usual from 'madi' to 'madi' but none can claim any channel to lead water as it was never existed. The plaintiffs are not entitled to the declaration or injunction or damages. The suit as framed is not maintainable and the vendors are necessary parties to the suit as they never enjoyed the land as claimed in the plaint. The suit is bad for non-joinder and mis-joinder of parties. There is no cause of action for the suit and the cause of action mentioned is not correct and the value of the suit also is not correct.
8. On the strength of the respective pleadings of the parties, the following Issues were settled:
1. Whether the plaint sketch is correct
2. Whether the sale of the entire land of the vendors is at one time
3. Whether S.M. Bodi was in existence always
4. Whether the plaintiffs are entitled to the injunction and damages prayed for
5. To what relief
As already stated, after recording the evidence of PW-1 and PW-2 and DW-1 and marking Exs.A-1 to A-10 and Exs.B-1 to B-9, the Court of first instance had dismissed the suit without costs and aggrieved by the same, the plaintiffs preferred A.S. No. 9/88 on the file of Peddapuram which was dismissed with costs throughout.
9. The substantial questions of law pointed out in the present Second Appeal are as hereunder:
1. Whether the trial Court erred in not considering the sale deeds of neighbouring land owners which are material evidence having direct bearing on the existence of S.M. Channel
2. Whether the Court below was right in holding that there is no 'easement of necessity' on the facts pleaded in the plaint
3. Where the recitals in the various documents are ambiguous and apparently irreconcilable, the Court below should have accepted the oral evidence of PW-2, the common vendor of the plaintiffs and the defendants, as conclusive proof of the existence of the channel S.M. from the tank upto the plaintiffs land and whether the Court below acted contrary to Sections 91 and 92 in not doing so
10. Apart from these questions, the learned counsel also had pointed out to Ground No. 8 which relates to the sale deed Ex.A-1 and the question of law now raised in the Second Appeal is the wrong or improper interpretation of the recitals of Ex.A-1 wherein the Eastern boundary is clearly mentioned as canal. In MUTHU GOUNDER v. AMMAYEE AMMAL,  4 SUPREME the Apex Court had observed that an obligation is cast on the appellant to state precisely the substantial question of law involved in the case in the Memorandum of Second Appeal and if the High Court is satisfied that a substantial question of law is involved in the Second Appeal it is required to formulate that question, but nonetheless the High Court has power to hear the appellant on any other substantial question of law not formulated by it, provided it is satisfied that the case involves such other substantial questions of law and in that event it has to record reasons. In the present case, the interpretation of the recitals of Ex.A-1 coupled with the evidence of PW-2 is being raised as a substantial question of law in addition to the other questions already raised, the said question also is permitted to be raised since it relates the interpretation of a document. The appellate Court at paragraph 8 had framed the following Point for consideration:
'Whether there are any valid and sufficient reasons to interfere with the findings given by the lower Court for the issues settled for trial or not ?'
11. It is no doubt true that the framing of the Point for consideration by the appellate Court definitely is not in accordance with Order 41 Rule 31 of the Code of Civil Procedure. But however, the appellate Court, commencing from paragraphs 9 to 20, had dealt with each and every aspect in detail, rectified certain mistakes committed by the trial Court and had recorded findings affirming the findings recorded by the Court of first instance and in view of the same it cannot be said that the Judgment and decree of the appellate Court suffer from any legal infirmity for non-framing of proper Points for consideration since there has been substantial compliance by recording the findings in detail. Though the learned counsel had pointed out Grounds (a), (b) and (c) under Ground No. 10 of the Memorandum of Grounds of Second Appeal as the substantial questions of law and in addition thereto the question relating to the interpretation of the recitals of Ex.A-1, in substance, all these questions relate to the aspect whether in view of the recitals in Ex.A-1 coupled with the evidence of PW-2 and also in the light of the easement of necessity whether the plaintiffs are entitled to the reliefs prayed for by them or not The factual aspects as reflected from the respective pleadings already had been narrated above. It is the case of the plaintiffs that they purchased ABCD marked plot along with certain other adjacent lands purchased by defendants as shown in the plaint sketch and sale deeds were obtained by them, no doubt on different dates, but executed by the common vendor. It is the specific case that the plaintiffs have been using a Bodi from the tank S. No. 310/8 upto the middle of the 1st defendant's land which is shown in the plaint sketch as S.M. and the defendants closed the said channel on 23-1-1981 in a high-handed manner inspite of protest by the plaintiffs and in view of the same the plaintiffs were unable to cultivate their lands during 1980-81 and they had sustained some loss also. As can be seen from the plaint sketch, the lands of the plaintiffs and the lands of the defendants 1 to 4 are adjacent. No doubt, PW-1 had deposed in clear and categorical terms abut his case, well supported by the evidence of PW-2. PW-2, the common vendor, had deposed that he cultivated all the lands through S.M. Bodi and this S.M. Bodi was raised by him in the year 1958 from the tank upto the last plot on the Northern extremity for the flow of water and also for preventing the wastage of water. He also deposed that prior to the formation of the said channel he was taking water from plot to plot. PW-2 also deposed that when the plaintiffs and defendants, the respective purchasers, had purchased the respective plots, the practice was taking water from the tank from field to field only but not through any channel. But however, he deposed that he formed S.M. channel in the year 1958 and the same continued even by the time he had sold the plots to the plaintiffs and the defendants as well. It is no doubt true that the sale deeds executed by PW-2 are on different dates, but the question involved in the matter is the right to take water through a particular defined channel as claimed by the plaintiffs. It is no doubt true that the recitals in Ex.A-1 are not clear on this aspect and for the purpose of clarifying the same, PW-2 was examined. In ABDULLA AHMED VS . ANIMEFIDRA KISSAN MITTAR, : 1SCR30 it was held that extrinsic evidence to determine the effect of an instrument is permissible when there remains a doubt as to its true meaning and evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument. The trial Court while answering Issue No. 5 had observed that the plaintiffs are entitled to take water from the tank as a right from 'madi' to 'madi' as per Ex.A-1 sale deed and not from S.M. Bodi. The trial Court and the appellate Court no doubt had discussed both the oral and documentary evidence and at paragraph 16 the appellate Court had observed :
'Even in the sale deed executed by PW-2 and others in favour of the plaintiffs, which is marked as Ex.A-1, there is nothing to understand that a bodi like 'SM' was in existence even by the time of sale of the lands in favour of the plaintiffs. It is only recited in the said sale deed that the plaintiffs have got a right to take water to their land from the tank in S. No. 310/8 but it is not stated that such taking of water is through a channel which was formed by PW-2 or at least which was in existence by that time. The manner in which the water has to be taken is not stated in the said sale deed. Of course, because Ex.A-1 is silent about the manner in which the water has to be taken from the tank by the plaintiffs, the plaintiffs are entitled to adduce oral evidence for clarification as stated in the decisions referred above. But, since there is no other acceptable or satisfactory evidence regarding the existence of 'SM' bodi by the time of the purchase of various plots by the defendants and since the sale deeds executed by PW-2 and others in favour of the defendants are silent about the existence of the channel, or the manner in which the water has to be taken from the tank to irrigate their lands, and since defendants 1 to 4 who will be also placed in a disadvantageous position if they deny the existence of 'SM' bodi, if really there had been such bodi and since they also said that there was never such bodi, right from the date of purchase of the lands by them, the existence of such bodi by the time of the purchase of the land by the plaintiffs which is 3 years after the purchase by the defendants, cannot be believed to be true.....'.
12. Like wise, at paragraph 17, the appellate Court also observed:
'Therefore, PW-2 might have in fact carved out a channel temporarily to take water from the tank to his lands situated at the extreme North but there is no proof i.e., satisfactory and acceptable evidence that such channel was in existence by the time of sale of any of the plots to any of the parties.......'.
13. Though there is no specific issue on the aspect of easement of necessity, the question was elaborately argued and the same was negatived at paragraph-19 of the Judgment of the appellate Court. As can be seen from the evidence, except the evidence of the 5th defendant who was examined as DW-1, there is no other evidence and observations were made that though the existence of the S.M. Bodi is to the benefit of the other defendants also, those defendants are not sailing along with the plaintiffs in this regard and for various reasons that may be so and as far as the plaintiffs are concerned, they may be interested in taking the water. None of the other defendants had been examined and the Commissioner also was not examined. It is also pertinent to note that though certain elders had been referred to, none of them had been examined and the sale deeds marked on behalf of the defendants had been relied upon for the purpose that they do not show about the existence of S.M.Bodi. It is no doubt true that the documents Ex.A-1 to Ex.A-10 and Exs.B-1 to B-9 had been relied upon and discussed, but however on a glance of the whole material available on record, it is clear that the plaintiffs are claiming the right to take water through a defined channel for the purpose of irrigating the lands and it is pertinent to note that PW-2 is the common vendor who had explained the facts and circumstances in detail and no doubt there is some missing link in the recitals of Ex.A-1. In the light of the facts and circumstances and also in the light of the respective pleadings of the parties also, the trial Court could have as well settled an Issue, i.e., 'Whether the plaintiffs are entitled to the right to take water through S.M. Bodi by virtue of the right of easement of necessity ?'. The evidence adduced on behalf of the defendants is definitely equally unsatisfactory and it is no doubt true that the burden is on the plaintiffs and observing that as a Court of equity since the plaintiffs had not approached the Court with clean hands they are not entitled to the reliefs prayed for, the Appeal had been dismissed with costs throughout. In the light of the peculiar facts and circumstances of the case, I am of the opinion that the findings which had been recorded definitely cannot be said to be in accordance with the evidence available on record and hence I am inclined to frame the following Issue:
Whether the plaintiffs are entitled to the right to take water through S.M. Bodi by virtue of the right of easement of necessity
14. In the light of the framing of the aforesaid Issue and in the light of the peculiar facts and circumstances, it is definitely essential to give opportunity to both the parties to let in evidence on all the aspects including the additional Issue framed by this Court and hence in the fitness of things, instead of remanding the matter to the appellate Court, the Judgments and decrees of the Courts below are hereby set aside and the matter is remanded to the file of the original Court for the purpose of affording opportunity to both the parties to let in evidence on all aspects inclusive of the additional Issue framed by this Court and dispose of the same in accordance with law.
15. The Appeal is accordingly allowed to the extent indicated above. But in the facts and circumstances of the case, there shall be no order as to costs.