High Court

Legal Reasoning

{1} SA No. 197-2022IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 197 OF 2022WITHCIVIL APPLICATION NO. 6167 OF 2022 IN SA/197 OF 20221.Ashok S/o. Gopal Jadhav2.Balu S/o. Gopal Jadhav3.Gorakh Baburao Jadhav (Died)Through his Legal Heirs3-A.Vishnuadas @ Gotya Gorakh Jadhav3-B.Smt. Mirabai Gorakh Jadhav4.Mahesh Bharat Jadhav5.Santosh Raosaheb Jadhav6.Sagar Gorakh Jadhav … APPELLANTS (Ori. Defendants)VERSUS1.Bhimaji S/o. Sonaji Jadhav … RESPONDENT (Ori. Plaintiff)…Mr. Rahul O. Awasarmol – Advocate for AppellantsMr. Amol K. Gandhi – Advocate for sole Respondent….CORAM : SANDIPKUMAR C. MORE, J.DATE : 24th July, 2024ORDER : 1.Heard rival submissions on admission.Pooja Kale {2} SA No. 197-20222.The appellants who are the original defendants in Regular CivilSuit No. 218 of 2017 have challenged the judgment and decree passed bylearned District Judge – 9, Ahmednagar (hereinafter referred to as “thelearned First Appellate Court”) in Regular Civil Appeal No. 417 of 2019passed on 15.02.2022. The learned First Appellate Court under theimpugned judgment and decree has set aside the judgment and decreedated 13.09.2019 in Regular Civil Suit No. 218 of 2017 passed by thelearned 10th Joint Civil Judge Senior Division, Ahmednagar (hereinafterreferred to as “the learned Trial Court”) whereby suit of the presentrespondent/plaintiff was dismissed.3.Brief facts giving rise to present Second Appeal are as under :The respondent/plaintiff filed the aforesaid Regular Civil Suit No.218 of 2017 for permanent injunction against the appellants for not toobstruct his act of taking water to his land survey No. 140/3 from the wellsituated in his another land survey No. 152/1 by way of pipeline passingthrough survey Nos. 143 and 144 owned by the appellants. Therespondent/plaintiff also claimed mandatory injunction to restore hispipeline which was broken by the appellants/defendants in their landsurvey No.143. The plaintiff had claimed that, he was taking water to hisfield survey No. 140/3 through the aforesaid pipeline since long, but thedefendants who are the present appellants often used to break the saidPooja Kale {3} SA No. 197-2022pipeline and thereby obstructed his user of water through the saidpipeline.4.The appellants/defendants resisted the said suit by claiming that,the plaintiff is in fact carrying the sewage water of Ahmednagar city fromthe said pipeline which passes through the place nearby their houses inthe aforesaid land survey Nos.143 and 144. According to them, due toleakage of said pipeline the sewage water of the said pipeline getsaccumulated around their houses causing nuisance to them in form offoul smell. The learned Trial Court after trying the said suit dismissed thesame on the ground that, the plaintiff found taking water from the saidpipeline in dispute without permission of the Tahsildar as per Section 49of the Maharashtra Land Revenue Code (“the Code”, for short) andtherefore, not entitled for claiming either permanent or mandatoryinjunction as claimed. However, the learned First Appellate Courtreversed the finding of the learned Trial Court and granted permanent aswell as mandatory injunction against the present appellants as per theprayers in the suit. Hence, this Second Appeal.5.Learned Counsel for the appellants/defendants submits that, thelearned First Appellate Court has definitely erred in granting injunctionin favour of the respondent/plaintiff by misinterpreting Section 49 of theCode. According to him, the substantial question of law involved in thePooja Kale {4} SA No. 197-2022present appeal is whether the learned First Appellate Court has erred inholding that no written permission from the concerned Tahsildar wasrequired for laying the pipeline ?6.On the contrary, learned Counsel for respondent supported theimpugned judgment of the learned First Appellate Court and submittedthat, the wording of Section 49 of the Code itself indicates that there is noneed of written agreement between the parties about laying anypipeline. According to him, the pipeline in dispute has been laid downthirty years back and the predecessors of the defendants had agreed forlaying of the said pipeline. As such, he prayed for dismissal of the appeal.7.Admittedly, the learned Trial Court has dismissed the suit ofrespondent/plaintiff mainly on the ground that, respondent/plaintifffailed to establish that he had obtained permission from the concernedTahsildar for laying down the disputed pipeline as per Section 49 of theCode. However, the existence of pipeline from survey No.152/1 to SurveyNo. 140/3 both owned by respondent/plaintiff through the lands ofdefendants namely survey Nos. 143 and 144, is not seriously disputed.The pleadings of the rival parties in the proceeding before the learnedTrial Court have indicated that, respondent/plaintiff is taking water tohis land survey No. 140/3 through the said pipeline since beginning. Itappears that, the appellants/defendants are opposing the suit on thePooja Kale {5} SA No. 197-2022ground that, plaintiff is taking sewage water through the said pipelinewhich causes nuisance to them as mentioned above. However, thelearned First Appellate Court has interpreted the wordings of Section 49of the Code and opined that, a written permission is not required forlaying pipeline from the concerned Tahsildar. Thus, the only substantialquestion of law appears to be involved in the present matter is, whetherit is essential to obtain written permission from the concerned Tahsildarfor laying down such pipeline by following the procedure contemplatedin Section 49(2) of the Code ?8.On this aspect there is need to reproduce Section 49 of the Codewhich reads as thus :49.Construction of water couse through land belonging toother person. - (1) If any person (hereinafter called “theapplication”) desires to construct a water course to take waterto irrigate his land for the purpose of agriculture from a sourceof water to which he is entitled (including any source of waterbelonging to Government from which water is permitted to betaken) but such water course is to be constructed through anyland which belongs to or is in possession of another person(hereinafter called “the neighbouring holder”), and if noagreement is arrived at for such construction between theapplicant and the neighbouring holder, the person desiring toconstruct the water course may make an application in theprescribed form to the Tahsildar.Pooja Kale {6} SA No. 197-2022Explanation — For the purposes of this section, theneighbouring holder includes the person to whom the landbelongs and all persons holding through or under him.(2) On receipt of the application, if the Tahsildar after makingan enquiry and after giving the neighbouring holder and allother persons interested in the land, an opportunity of statingany objection to the application, is satisfied that for ensuringthe full and efficient use for agriculture of the land belonging tothe applicant it is necessary to construct the water course, hemay by order in writing, direct the nighbouring holder topermit the applicant to construct the water course on thefollowing conditions : – - - - - - - - -If we go through the wording of first part of Section 49(1) of theCode, it is evident that an agriculturist from a source of water to whichhe is entitled, can construct a water course from that source to his landfrom the land belonging to another person or the neighbouring holder.However, the second part indicates that, such water course is to beestablished only if there is an agreement between himself and theneighbouring holder. Further, it appears that if no such agreementarrived between himself and the neighbouring holder then he may makean application in prescribed form to the concerned Tahsildar. Plainreading of the aforesaid section clearly indicates that, the section doesnot contemplate any prior permission of the Tahsildar before layingdown or establishing a water course of pipeline but it appears that, if thePooja Kale {7} SA No. 197-2022neighbouring holder or other person consents for the same no suchpermission is required from the Tahsildar. Further, it is clearly evidentthat, only in case the neighbouring holder refuses to give consent thenthe application needs to be filed to the Tahsildar for obtaining suchpermission. Therefore, the observation of the learned Trial Court thatplaintiff without obtaining permission is taking water from the disputedpipeline and therefore, not entitled for injunction as prayed, is definitelyperverse. On the contrary, the learned First Appellate Court has rightlyinterpreted Section 49 of the Code and discarded the necessity ofobtaining prior permission of the Tahsildar for laying down the pipeline.9.Further, so far as other aspects are concerned the existence ofdisputed pipeline since the year 2005–2006, is fairly admitted. LearnedCounsel for the appellants vehemently argued that, though the disputedpipeline was laid down for bringing water from the well situated atsurvey No. 152/1, but respondent/plaintiff is in fact taking the waterfrom Sina river instead of the said well. However, the defendants haveadmitted the location of survey No. 152/1 being in the river bed of Sinariver. They have further categorically admitted that, plaintiff takes waterfrom the said spot to his land survey No. 140/3 by pipeline. As such,when the well area is situated in the river bed of Sina river nothing canbe said to be illegal, if the respondent/plaintiff takes water from the saidPooja Kale {8} SA No. 197-2022river through the pipeline for which he has obtained necessarypermission from the Irrigation Department. Further, witness of theappellants/defendants has categorically admitted in his cross-examination that, plaintiff has laid pipeline from survey No. 152/1 tosurvey No. 143 and also obtained electricity connection to fetch thewater from said pipeline. P.W. - 2, Shivaji Anarase who is from MinorIrrigation Sub Division, Ahmednagar has also deposed that, hisdepartment is recovering water charges from the agriculturist who takewater from Sina river. According to him, the appellants/defendants arealso taking water from Sina river to their respective fields. Thus, there isforce in the contention of respondent/plaintiff that, the defendants hadobstructed his act of taking water from Sina river to his field by breakinghis pipeline often.10.It is significant to note that, the appellants have raised objection tosuch act of plaintiff of taking water from Sina river mainly on the groundthat, there is leakage to the said pipeline and therefore, the sewage waterof Ahmednagar city gets accumulated around their houses which causesnuisance to them. However, witness – Balu on behalf of the appellantshas clearly admitted that, his father also used to irrigate their land withthe same water of Sina river. Thus, when the appellants/defendants areusing the same water of Sina river which the plaintiff is using to irrigatePooja Kale {9} SA No. 197-2022his field then the so called case of nuisance as raised by theappellants/defendants definitely appears a false one. Further, it is mostsurprising to note that, this Balu while deposing for the appellants hasclearly admitted in his cross-examination that, he would not be havingany objection to reinstate and reconnect the pipeline, if the dispute inrespect of encroachment comes to an end. Thus, from such admission itcan be gathered that, the appellants/defendants must have obstructed orbroke the pipeline in dispute on the ground of separate dispute ofalleged encroachment which may be by the present plaintiff. Theappellants/defendants are certainly having legal remedy if suchencroachment at the hands of respondent/plaintiff is there. However, itappears that, the appellants/defendants instead of resorting to suchremedy, are obstructing or causing damage to the pipeline ofrespondent/plaintiff.11.Thus, considering all these aspects it is evident that, the learnedFirst Appellate Court has properly appreciated the entire evidence onrecord and also made right interpretation of the word “agreement” inSection 49 of the Code by holding that, the said word “agreement”should not be taken for necessity of written agreement between theparties for laying such pipeline. Therefore, the substantial question oflaw has been answered by the learned First Appellate Court properly.Pooja Kale {10} SA No. 197-2022Therefore, considering all the other aspects there is no substance in thepresent Second Appeal. Accordingly, the Second Appeal standsdismissed alongwith pending Civil Application No. 6167 of 2022 and theinterim relief granted by this Court under order dated 19.04.2022specially in respect of stay to the execution and operation of operativepart 3(b) of the judgment and order of the learned First Appellate Court,stands vacated.12.The Second Appeal is accordingly disposed of.[ SANDIPKUMAR C. MORE ]JUDGE Pooja Kale