1. This is an appeal by the Defendant against a reversing judgment Impugned is the judgment dated 17.05.2003 followed by decree passed by learned Civil Judge (Sr. Division) Banki in Title Appeal No.1 of 2002 whereby the judgment dated 13.08.2002 followed by decree passed by learned Civil Judge (Junior Division), Banki in Title Suit No.12 of 1998 was reversed.
2. For convenience, the parties are described as per their status in the trial court.
3. Before adverting to the facts of the case, it would be apposite to refer to the genealogy showing the relationship between the parties.
4. The suit in question was filed by the Plaintiff for declaration of their right, title and interest over their ancestral well and right to draw water by consent and for permanent injunction against the Defendant. The case of the Plaintiffs is that Banamali and Ramchandra, the sons of Bidyadhar, amicably partitioned their ancestral properties by metes and bound and mutated their respective properties separately in the major settlement. Plot No.275 being the suit plot measuring an area of Ac.0.07 decimals fell to the share of Ramachandra being recorded under Khata No.239. His two sons, namely, Balabhadra and Jagannath divided his homestead land including the suit land among themselves through a registered partition deed on 16.06.1969. The suit plot including the suit well over that plot fell to the share of Balabhadra. However, right was given to the Plaintiffs to draw water from the suit well. Right was also given to Sachi and Aparti belonging to the other branch in the settlement ROR. But Aparti transferred his share to an outsider, which is in between the suit plot and the land of Sachi. As such, neither Aparti nor Sachi are utilizing the suit well since long. The Plaintiffs’ land stands on Plot No.274, which is on the southern side of the suit plot. Plaintiff No.1 constructed a boundary wall on the northern side of Plot No.274 with a door near the well to access it for his personal use. The depth of the well is forty feet but the water level goes down in summer season making it difficult to draw water by buckets, so the Plaintiff No.2 purchased an electric pumpset and fitted the same on the passage to the well along with pipe. Since then, the Defendant picked up quarrel and threatened to remove the pipe. Hence, the suit.
5. The Defendant contested the suit by filing written statement. All the plaint averments relating to the description of the properties and the partition deed were admitted but the Plaintiffs’ claim of title over the suit well was specifically disputed. According to the Defendant, the Plaintiff only had the right of drawing water. It was specifically provided in the partition deed that the Plaintiff would open a door on the boundary wall, which would be open only at the time of drawing water and would remain closed for rest of the time to maintain the privacy of the Defendant. Further, the Plaintiffs has no right to draw water by using an electric pump.
6. Basing on the rival pleadings, the trial court framed the following issues for determination:-
“l. Is the suit maintainable
2. Have the plaintiffs any cause of action to file the suit
3. Whether the suit is bared by limitation
4. Whether the suit is defective for non-joinder of the parties
5. Whether the plaintiffs are entitled to draw water from the ancestral well by putting pipe line and electric motor
6. Whether the defendant is liable to be restrained from objection the plaintiffs to draw water from the suit well by means of electric motor pump”
7. Taking up Issue No.5 at the outset, the trial court after examining the recitals of the partition deed dated 16.06.1969 and the evidence adduced by the Plaintiff (P.W.1), held that the Plaintiffs had no right, title and interest over the suit well except the right to use the well. It was further held that allowing the Plaintiffs to draw water by electric motor would result in the well drying up during summer season causing inconvenience to the Defendant and other users. Hence, it was held that the Plaintiffs are not entitled to draw water through electric motor. In view of the findings on the main issue as above, the remaining issues were answered against the Plaintiffs and the suit was dismissed.
8. The Plaintiff No.2 alone carried the matter in appeal to the court of learned Civil Judge (Sr. Division), Banki.
9. Be it noted that Plaintiff No.1 expired during the suit but was not substituted purportedly as Plaintiff No.2 was held to be competent to represent his interest. The 1st Appellate Court therefore, held that the suit was not vitiated for want of substitution.
10. After considering the rival contentions, the 1st Appellate Court held that the fact that the Plaintiffs’ family have been granted the right to use the well from generation to generation and the responsibility of renovation and repair of the well had been imposed on both parties, it cannot be said that the Defendant alone has exclusive right over the suit well only because it stood over Plot No.275 which was allotted to him. It was further held that right to use water of the well is a right inherent within the concept of ownership of the property in question by interpreting the deed of partition. Thus, the 1st Appellate Court held that both Balabhadra and Jagannath had joint right and ownership over the suit well. As regards the right of drawing water by using electric pump, the 1st Appellate Court examined the oral evidence adduced by the parties to hold that the Plaintiff had such right but with the rider that it should not cause inconvenience to the Defendant. On such finding, the judgment and decree passed by the trial court was reversed by declaring the right, title and interest of the Plaintiffs over the suit land and their right to draw water by using an electric motor but without causing any detriment to the equal interest of the Defendant. Further, the Defendant was permanently injuncted from interfering with such right of the Plaintiff.
11. Being further aggrieved, the Defendant has preferred this appeal which was initially admitted on the following substantial question of law:-
“In view of the fact the plaintiff No.l expired during pendency of the suit without effecting any substitution of the non-appearing legal representatives, if the learned lower appellate court is correct in holding the appeal to be maintainable in the eye of law, at the instance of plaintiff No.2 only,
one of the sons of the plaintiff No.l, in absence of substitution of another son of, who is admittedly a successor of the plaintiff No.1.”
However, at the time of final hearing, the following substantial question of law was framed:
“The right of user and title to the property are two district propositions available under the Civil Law and there is a marked distinction between the two. In the back ground noted above if the court below is correct in combining the two propostions together and conferring a right/title on the plaintiff, which he is admittedly not entitled to under the deed of partition, Ext.2 holding the enquiry regarding sufficiency of the water level in the “WELL” to be immaterial.”
12. Heard Mr. D.P. Mohanty, learned counsel for the Defendant-Appellant and Mr. P.K.Sahoo, learned counsel appearing for the Plaintiff-Respondent.
13. Mr.Mohanty would argue that the recitals of the registered deed of partition being clear and unambiguous, no oral evidence was admissible to explain the contents as per Sections 91 and 92 of the Evidence Act. Further, the finding of the 1st Appellate Court that right to use the water is a right inherent with the concept of ownership of the property is unheard of in law. Mr. Mohanty would further argue that Plaintiff No.1 having died during pendency of the suit and not being substituted by his other LRs, the appeal preferred at the instance of Plaintiff No.2 was not maintainable, as wrongly held by the 1st Appellate Court.
14. Mr. P.K. Sahoo, on the other hand, would contend that the partition deed clearly conferred right of equal ownership over the suit well to the Plaintiff as well as the Defendant. Had the parties intended otherwise then no right of user would have been granted to the Plaintiffs, since the suit well is admittedly situated over the land falling to the exclusive share of the Defendant. As regards maintainability of the appeal, Mr.Sahoo would contend that Plaintiff No.2, being the eldest son of the family, represents the interest of the entire family and therefore, he alone is competent to maintain the appeal as he was not seeking any independent right for himself but for the entire family.
15. As regards the question of maintainability of the appeal at the instance of Plaintiff No.2, this Court finds that the Plaintiff No.1, Jagannath Sahu, died during pendency of the suit. As it appears, he was not substituted by other LRs. The judgment of the trial court makes no mention of the death of Plaintiff No.1. The appeal was preferred by Plaintiff No.2-Rabindra Chandra Sahu. The property in dispute is the well of which the right of usage has been granted to Jagannath and his family. Admittedly, Plaintiff No.2 is the son of Jagannath. As contended by Mr. P.K.Sahu, Plaintiff No.2 did not make any individual claim over the well but pursued the relief claimed by him and his father jointly in the suit. In other words, what he essentially claimed was the right over the well on behalf of the family of Jagannath. It is stated that Jagannath had other sons besides Plaintiff No.2. But then the suit being filed on behalf of the entire family, it cannot be said that the other LRs of Jagannath, who are not substituted would have any interest adverse to that of Rabindra. Therefore, notwithstanding the fact that the suit in respect of the deceased Plaintiff can be treated to have been abated but for such reason the entire suit would not be vitiated. As such, the appeal at the instance of Plaintiff No.2 would be maintainable.
16. Coming to the factual dispute, this Court finds that the same revolves around interpretation of the registered deed of partition between Jagannath and Balabhadra on 16.06.1969. Said deed of partition was admitted into evidence as Exhibit-2. Reading of the recitals of the partition deed make it abundantly clear that the suit well stood over Plot No.275, which fell to the share of Balabhadra exclusively. The recitals further say that notwithstanding the allotment of said plot to the share of Balabhadra, the right to draw water from the well was granted to Jagannath and his family for all times to come. The right of user has been specified to the extent that the Plaintiffs and their family members have the right to access the well from its southern side. Further, it provides that a door would be installed by Jagannath Sahu (Plaintiff) which would be open only to access the well and to be kept closed at all other times. This is highly significant and shows the exclusive nature of right of the Defendant over the well and correspondingly, the limited right of the Plaintiff. It is well settled that when the recitals of an instrument are clear and unambiguous, no oral evidence is admissible to further explain the same. This Court after carefully examining the recitals of Exhibit-2 finds that the exclusive right, title and interest over the suit well is that of the Defendant, Balabhadra and not the Plaintiff. The Plaintiff has a limited right only of drawing water from the well and nothing more. The 1st Appellate Court appears to have been swayed away by the joint responsibility cast upon Jagannath and Balabhadra to repair and renovate the well. From what has been narrated hereinbefore, the above condition can only be treated as a mutually acceptable arrangement so that a limited right being granted to Jagannath, the cost of repair and renovation of the well would not have to be entirely borne by Balabhadra. This however, cannot be interpreted to mean that any right over the well was conferred on Jagannath other than the right of user as argued by Mr. Mohanty. The reasoning of the 1st Appellate Court, that right to use water is a right inherent with the concept of ownership of the property is absurd as such an interpretation would then render the entire partition deed redundant.
17. Coming to the right of the Plaintiff to draw water by using an electric motor, this Court finds that the partition was effected in the year 1969 when electric pumpsets were not so prevalent. That apart, the right to draw water from the well has not been qualified or restricted in any manner. Therefore, it can be safely concluded that the right to draw water would include in its ambit the right to draw manually as well as mechanically. Therefore, by much stretch of imagination can the right of user of the Plaintiff be restricted to manual means alone. So, Plaintiff cannot be prohibited from using electric pump to draw water. However, as has been held by the 1st Appellate Court and according to this Court, rightly so, such right cannot be exercised to the detriment of the Defendant. In other words, the drawing of water by electric pumpset cannot be in a manner as would affect the right of the Defendant over the water in the well. This Court therefore, concurs with the finding of the 1st Appellate Court that the right to draw water by electric pumpset by the Plaintiff cannot be in a manner detrimental to the Defendant.
18. For the foregoing reasons therefore, this Court finds that the 1st Appellate Court committed manifest error in reading the recitals of the deed in a manner that is clearly contrary to its plain and simple meaning. The impugned judgment of reversal passed by the 1st Appellate Court cannot therefore be sustained.
19. In the result, the appeal succeeds and is therefore, allowed. The judgment and decree passed by the 1st Appellate Court is hereby set aside and that of the trial Court is confirmed with the modification as indicated in paragraph 16 of this judgment. There shall be no order as to costs.
