IN THE COURT OF CIVIL JUDGE AT JEWARGI

Present:

Smt. PRATIBHA KULKARNI B.A. LL.B.,(Spl)

Civil Judge & JMFC, Jewargi

Original Suit No. 106/2011

Dated this the 5th day of August 2014.

PLAINTIFF:
Sri Shivasharanappa
S/oAnnappa Boodihal, Age: 61
years, Occ: Agriculture, R/o.
Balundagi village, Tq. Jewargi,
Dist. Gulbarga.

(By Sri. M.G.S Advocate)

//Versus//

DEFENDANTS:

1. The Deputy Commissioner,

Gulbarga, Dist. Gulbarga.

2. The Managing Director,

KBJNL, (U.K.P), Bangalore.
P.W.D Annexe IIIrd Floor, K.R.
Circle, Bangalore-01.

3. The Asst. Executive Engineer,

KBJNL, (UKP), IBC Sub-
Division No.26, Yaragal Camp,
Tq. Sindagi, Dist. Bijapur.
 2 O.S. No. 106 / 2011

(Deft No.1 by AGP. Deft

No 2 and 3 by Sri G.V.V.
Advocate.)

-o0o-

Date of institution : 25-07-2011.

Nature of the suit. : Mandatory Injunction

And Compensation.

Date of commencement of recording

of the evidence : 21-03-2013.

Date on which the Judgment is

pronounced. : 05-08-2014.

Total Duration. : Years/Months/Days/

03 00 11

JUDGMENT

1. This suit has been filed by the plaintiff against the

defendants for the relief of mandatory injunction

requesting the court to direct the defendants to pay

adjudicated compensation amount to the plaintiff

towards the loss and damage caused to the suit

property due to leakage and cracks to the K.B.J.N.L,

IBC Distributory No 11, lateral No 17-R, & Lateral No

21, Sub lateral No 4 and 5 canals and direct the

defendants to restore the suit property in its original

 3 O.S. No. 106 / 2011

fertile position and to restrain the defendants by

causing further damage or loss to the suit property.

2. The description of suit property is as follows:

Sy. No. 126 measuring 7 acres 29 guntas, same

is damaged, revenue assessed at Rs 14.63 ps
situated at Yatnoor village, Tq. Jewargi, which is
bounded as under:
East : Sy No.125.

West : Sy No. 128.

North : Sy No. 124.

South : Sy No. 127.

The above mentioned property is shown as “suit

property”.

The brief facts of the plaintiff’s case are as follows:

3. That plaintiff is the absolute owner and in possession of

suit property. The defendants have caused damage to

the suit property of the plaintiff to the extent of 7 acres

29 guntas in Sy No 126 through leakage of water from

irrigation canal of IBC Distributory No 11, lateral No 17-

R, & Lateral No 21, Sub lateral No 4 and 5 canals. The

suit property of the plaintiff sustained loss and damage

due to lack of proper care and caution in maintenance

 4 O.S. No. 106 / 2011

by the defendants through their subordinates in office

IBC Distributory No 11, lateral No 17-R, & Lateral No

21, Sub lateral No 4 and 5 canals, that cause heavy

water logging in the suit property. Canals water flows

from substratum (bottom) and percolates the suit

property sloughly. This is the reason for 7 acres 29

guntas of fertile land of plaintiff in suit property became

completely wet. Therefore, plaintiff sustained great loss

of various crops, such as toor crop, groundnut,

sunflower, bengal gram, jawar, and cotton etc. The

plaintiff developed the suit property by investing huge

amount of Rs.6,00,000/- for putting big bunds to save

the fertility of soil from being the swept.

4. The defendants are nothing to do with the suit property,

however they caused loss and damage to the extent of 7

acres 29 guntas in suit property by construction of IBC

Distributory No 11, lateral No 17-R, & Lateral No 21,

Sub lateral No 4 and 5 canals in sub substandard

manner a way to cause seepage of water, which

percolates from the said constructed canals. Therefore,

the plaintiff approached the defendants and requested

them to take proper care and caution of IBC

 5 O.S. No. 106 / 2011

Distributory No 11, lateral No 17-R, & Lateral No 21,

Sub lateral No 4 and 5 canals, but his request is not

entertained by any of the defendants.

5. Therefore, plaintiff issued statutory notice as required

U/Sec. 80 of CPC to all the defendants demanding them

to pay just compensation towards the loss and damage

to his suit property within 60 days from the date of

receipt of notice. However, the defendants have received

the said legal notice but they have not complied with the

same. Hence, this is a suit for mandatory injunction

and for compensation.

6. On service of suit summons defendant No.1 appeared

before the court through AGP, but not filed written

statement within stipulated time. Whereas defendant

No.2 and 3 have appeared before the court trough their

counsel and have filed their written statement to the

suit of the plaintiff. The defendant No.2 and 3 in their

written statement contended that it is for the plaintiff to

prove his ownership and possession over the suit

property and location of the lateral and canal situated

towards from the suit property. It is submitted that

 6 O.S. No. 106 / 2011

plaintiff has to prove due to lack of proper care and

caution in maintenance by the defendants through their

subordinates in office IBC Distributory No 11, lateral No

17-R, & Lateral No 21, Sub lateral No 4 and 5 canals

that cause heavy water logging in the suit property as

such suit property became unfit to cultivate due to

impact of percolation as alleged. The defendants denied

shoddy construction, seepage, and percolation of canal

and its lateral. The defendants submit that the

pleadings of the plaintiff are strange, when damage

persists, since their construction and did not allow

plaintiff to grow any crop. Onus is on the plaintiff to

explain, and what silenced him for such long period and

wake up, only to claim through suit. Under such

circumstances, the question of providing any succor or

relief does not arise. There is no cause of action to file

the suit, the valuation of the suit is not correct and

court fee paid is not correct and this court has no

territorial jurisdiction to entertain the suit. It is

submitted that suit is filed only with an oblique motive

to harass the defendants. The defendants denied all

other contents of the plaint and submitted that suit is

 7 O.S. No. 106 / 2011

not maintainable. The defendants on these grounds

have requested to dismiss the suit with costs.

7. On the basis of the rival pleadings of the parties this

court has framed the following issues:

ISSUES
1. Whether plaintiff proves that defendant No.

2 and 3 caused damage to his land to the

extent of 7 acres 29 guntas in Sy No. 126

through Krishna Bhagya Jala Nigam

Limited, J.B.C Distributory No 11?

2. Whether the plaintiff is entitled for

compensation? If so, how much?

3. Whether the plaintiff is entitled for the

reliefs as sought?

4. What order or decree?

8. In support of his claim, the plaintiff tendered his

evidence affidavit in lieu of chief examination, which is

recorded as P.W.1 and he got marked the documents,

which are at Ex.P.1 to 18. Despite sufficient

opportunities the plaintiff has not lead his side further

evidence. On the other hand the defendants also not

lead their oral evidence nor produced any documents.

 8 O.S. No. 106 / 2011

9. It is to be noted here that despite providing sufficient

opportunities the counsels appearing for the parties

have not addressed the arguments on merits. I have

perused the pleadings of the parties and evidence on

records and court records.

10. My answers to the above issues are as under:

Issue No.1: In the Negative.

Issue No.2: In the Negative.

Issue No.3: In the Negative.

Issue No.4: As per final order for the following:

REASONS

11. ISSUES NO.1 TO 3:- In order to avoid repetition of facts

and discussion on evidence, I have taken these three

issues together for common consideration for the sake

of brevity. The plaintiff has claimed that he is the

absolute owner and in possession of the suit property

and defendants have caused loss and damage to suit

property to the extent of 7 acres 29 guntas in Sy.No 126

due to lack of proper care and caution in maintaining

the IBC Distributory No 11, lateral No 17-R, & Lateral

No 21, Sub lateral No 4 and 5 canals. The defendants

 9 O.S. No. 106 / 2011

have constructed IBC Distributory No 11, lateral No 17-

R, & Lateral No 21, Sub lateral No 4 and 5 canals, and

which is logging the water to the suit property by

making percolation, as a result of percolation the suit

property of the plaintiff became totally wet and as such

it became unfit for cultivation and he is not growing any

crops. Therefore, plaintiff sustained loss due to damage

to the suit property.

12. On the contrary, the defendants have denied the claim

of the plaintiff and have called upon the plaintiff to

prove the same.

13. In proof of compliance with the provision of Sec. 80 of

CPC, the plaintiff has produced Ex.P.1 which is office

copy of the legal notice dated 10-12-2009 issued by the

counsel for the plaintiff to the defendants calling upon

them to take proper care and caution in respect of IBC

Distributory No 11, lateral No 17-R, & Lateral No 21,

Sub lateral No 4 and 5 canals and to pay the just

compensation towards damage caused to the suit

property and requested to restore the suit property in its

original fertile condition within 60 days from the date of

 10 O.S. No. 106 / 2011

receipt of notice. Ex. P. 4 to 5 are the postal receipts for

having sent the legal notice to the defendants. Ex P- 2

and 3 are the postal acknowledgment cards for having

served the legal notice on the defendants on the

different dates.

14. Even P.W.1 has sworn on oath and deposed that he has

issued legal notice to the defendants calling upon them

to make the needful within 60 days from the date of

receipt of notice and defendants have received the notice

and receipts are produced. The receipt of Ex.P.1 legal

notice is not disputed by the defendants in the suit.

Moreover, they have not raised any objection as to want

of defect of statutory notice. In view of the above said

oral and documentary evidence on records, I am of the

considered view that plaintiff has substantially complied

with the mandatory provision of Sec. 80 of CPC by

issuing statutory notice of 60 days to the defendants,

who are state and the public officers and thereafter filed

this suit on 25-7-2011 on expiry of the statutory period

of 60 days.
 11 O.S. No. 106 / 2011

15. Plaintiff has sworn on oath and he has reiterated the

contents of the plaint averments in his evidence

affidavit, which is tendered in lieu of chief examination.

The plaintiff has got marked the documents, which are

at Ex P-1 to Ex. P-18. Ex P-1 is the office copy of the

legal notice issued by the counsel for the plaintiff to the

defendants U/Sec 80 of Civil Procedure Code dated 10-

12-2009. Ex P-2 and 3 are the postal acknowledgement

card for having served the legal notice on the defendants

on different dates. Ex P- 4 and 5 are the postal receipts

for having sent the legal notice to the defendants. Ex P-

6 to 8 are the copies of letters addressed to the

defendants by the plaintiff on 13-10-2009, 29-10-2009,

and 9-12-2009 respectively. Ex. P 9 is the record of

rights of Sy No 126/AA totally measuring 13 acres 29

guntas, wherein the name of the plaintiff is appearing to

the extent 7 acres 29 guntas as owner and possessor. It

is for the year 2008-2009. Ex.P-10 is the letter dated

13-10-2009 issued by counsel for the plaintiff. Ex P- 11

is the copy of the letter issued by plaintiff to Tahasildar

dated 13-10-2009. Ex P-12 is the copy of the letter

issued by plaintiff to Joint Director of agriculture dated

7-7-2010. Ex P-13 is the panchanama dated 18-3-2013.

 12 O.S. No. 106 / 2011

Ex P- 14 is the letter issued by the agriculture officer to

Administrative officer Kaada and UKP project

Bhimarayangudi dated 10-2-2011 stating that the lands

of the formers were being damaged due to percolation

by the canals and he made survey and submitted the

report. The report contains the list of the formers

wherein at Sl No 63 the name of the plaintiff is

appearing. Ex P-15 is the certified copy of the research

report. Ex.P.16 and 17 are the photographs. Ex P-18

the CD pertaining to photographs.

16. It is pertinent to note here that despite providing

sufficient opportunities the defendants have not cross

examined PW-1 Hence his evidence remained un-

controverted and un –rebutted.

17. On going through the prayer column of the plaint, it

could be seen that plaintiff has claimed for the relief of

mandatory injunction requesting the court to direct the

defendants to pay adjudicated compensation amount to

the plaintiff towards the loss and damage caused to the

suit property due to leakage and cracks IBC

Distributory No 11, lateral No 17-R, & Lateral No 21,

 13 O.S. No. 106 / 2011

Sub lateral No 4 and 5 canals and direct the defendants

to restore the suit property in its original fertile position

and to restrain the defendants by causing further

damage or loss.

18. The plaintiff has not furnished what was the loss or

damage caused to him. What were the crops grown by

the him at earlier point of time in the suit property,

what was the yearly income from the suit property etc.

He has not furnished any materials before the court to

show that this much is the loss caused to him. Further

admittedly the UKP canals were constructed long back.

So it is clear that plaintiff kept quite all these years and

come up with present suit. The plaintiff has not

explained to the court what made him to be quite all

these years. Therefore delay and latches lies on the part

of the plaintiff.

19. Further on perusal of the prayer column of the plaintiff

it could be seen that the plaintiff has claimed

unascertained compensation. As per Sec 21 of

Karnataka Court Fees and Suit Valuation Act, 1958 the

compensation or the damages claimed shall have to be

 14 O.S. No. 106 / 2011

ascertained and court fee shall be paid on the amount

ascertained.

20. Sec 21 of Karnataka Court Fees and Suit Valuation Act,

reads thus:

Suits for Money:- In a suit for money ( including a

suit for damages or compensation, or arrears of

maintenance of annuities, or of other sums

payable periodically), fee shall be computed on the

amount claimed.

21. I have already pointed out that the plaintiff has claimed

unascertained compensation. No specific compensation

amount has been claimed by the plaintiff, he only

valued the suit U/Sec 26 (c) of K.C.F and S.V Act and

paid court fee of Rs.25/-. The plaintiff ought to have

ascertained the loss or damage caused to him and

ought to have asked the compensation on the

ascertained amount of loss or damage by paying the

court fee on the claimed amount U/Sec 21 of K.C.F and

S.V Act. The plaintiff has to pay the court fee on the

amount ascertained as compensation. Therefore, I am of

 15 O.S. No. 106 / 2011

the considered opinion that unascertained

compensation can not be granted.

22. The plaintiff has entirely failed to establish his case. The

claim of the plaintiff can not be granted merely based on

the weakness of the defendants. It is for the plaintiff to

substantiate his case by producing reliable cogent

evidence. But in the case on hand plaintiff has failed to

prove his case. Hence, I am of the opinion that plaintiff

failed to prove that defendants No 2 and 3 have caused

damage to his property to the extent of 7 acres 29

guntas in the suit property through IBC Distributory No

11, lateral No 17-R, & Lateral No 21, Sub lateral No 4

and 5 canals, and he is not entitled for any

compensation and he is not entitled for the reliefs

sought in the suit. Therefore, I answer Issues No 1 to 3

in the Negative.

23. ISSUE No.4:- In view of my above discussion and

findings on Issues No.1 to 3, I proceed to pass the

following:
 16 O.S. No. 106 / 2011

ORDER

The suit of the plaintiff is

hereby dismissed with costs.
Draw the decree
accordingly.

(Directly typed by me on Computer, corrected and signed by me and then

pronounced in the open court on this the 5th day of August 2014.)

(SMT. PRATIBHA KULKARNI)

Civil Judge, Jewargi.

ANNEXURE

List of witnesses examined for plaintiff.

PW-1: Shivasharanappa S/o Annappa.

List of documents exhibited for plaintiff.

Ex.P.1 : Legal Notice Copy.

Ex.P.4 and 5 : Postal receipts.
Ex.P. 2 and 3 : Postal acknowledgement cards.
Ex.P. 6 to 8 & 10 : Copy of Letters addressed to Def.
Ex.P.9 : Record of rights.
Ex.P.11 : Office copy of notice issued by
plaintiff to Tahasildar.
Ex.P.12 : Letter to Joint director.
Ex.P.13 : Panchanama.
Ex.P.14 : Copy of letter dated 10-2-2011.
Ex.P.15 : Research report.
Ex.P.16 & 17 : Photographs.
Ex.P.18 : CD.

List of witnesses examined for defendants.

 17 O.S. No. 106 / 2011

Nil

List of documents exhibited for defendants.

Nil

Civil Judge, Jewargi

18 O.S. No. 106 / 2011