1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.166 OF 2009 Subhash s/o Mahadu Chimte, Age: 45 years, Occ: Agril., R/o. Pimpri-Deshmukh, Tq. & Dist. Parbhani, Through G.P.A. holder Bhagiratibai Subhash Chimte, Age: 40 years, Occ: Household, R/o. As above. .. Appellant Versus Annasaheb s/o Yaduji Davane, Age: 50 years, Occ: Agri. R/o. Pimpri Deshmukh, Tq. & District Parbhani and others. .. Respondents ... Mr. P.N. Sonpethkar, Advocate for the appellant. Mr. V.D. Salunke, Advocate holding for Mr. S.B. Ghatol Patil for respondent No. 1. ... CORAM : K.K. TATED, J. DATE : 15th JULY, 2009. PER COURT : 1. Heard learned Counsel for the appellant and learned Counsel for respondent No. 1. 2 2. Present Second Appeal is preferred by the original plaintiff against the judgment and decree dated 29-08-2008 passed by the District Judge-1, Parbhani in R.C.A. No. 76/2005. 3. The plaintiff filed R.C.S. No.345/2001 for perpetual injunction restraining the defendants, their agents or any one claiming on their behalf from interfering or causing any sort of damage to the pipe line of plaintiff which is running from the field of defendants Gat No. 59 at Deshmukh Pimpri, Taluka Parbhani, as shown in the map annexed to the plaint, in any manner whatsoever. 4. It is the case of the plaintiff that with the consent of the defendants, he installed pipe line running through the defendants' land for fetching river water. Same was installed in the year 1997. At that time, the defendants gave consent for installation of the same. Thereafter, the defendants on 13-08-2001 called 3 upon the plaintiff to remove the pipe line within two days and threatened that else they will close the water course and remove the said pipe line. Because of the said threat, the plaintiff filed suit with following relief. "Issue of perpetual injunction restraining defendants, their agents or any one claiming on behalf of them that they should not obstruct and interfere or not to cause any sort of damage to the pipe line of plaintiff which is running from the field of the defendants, in any manner, as shown in the map annexed with the plaint, which is lying in the land Gut No. 59 at Deshmukh Pimpri Tq. Parbhani." 5. On the other hand, it is the case of the defendants that the plaintiff informed the defendants that he wanted to take loan from the bank and for that purpose, he required defendants' consent. Considering the request of the plaintiff, the defendants accorded their consent for laying the pipe line on the following terms and conditions. "(i) The pipe-line shall be constructed underground nearby 4 the boundary marks of defendants No. 1 & Sd. Sultan. (ii) The pipeline shall be constructed underground having its depth of 4 ft. (iii) The pipeline of plaintiff shall not cause obstruction to the plantation and crops, its cultivation, growth & yield of the crop of defendant No. 1. (iv) The plaintiff shall take due care that, the pipeline may not have any leakage; (v) If any damage is caused to the crop and soil of the defendants, the plaintiff will compensate the same; (vi) The plaintiff shall pay Rs. 5000/- per year to each defendant as rent towards the use of their land." 6. The defendants' case is that since the pipeline is constructed by the plaintiff in the land of defendants, he has not taken any care of the pipeline and the pipeline is leaking in the land of the defendants at various places due to which the defendants are sustaining heavy losses and due to which, the land as well as crops of 5 the defendants are being damaged. On these grounds and other several grounds, the defendants resisted the suit filed by the plaintiff. 7. On the basis of pleadings of both the parties, the trial Court framed the following issues in the suit. ISSUES FINDINGS (1) Whether plaintiff constructed the pipeline through the boundary marks of defendants as pleaded in paragraph No. (3) of the plaint?. No. (2) Whether plaintiff proves obstruction? .. Yes. (3) Whether plaintiff is entitled for injunction? .. Yes. (4) Whether defendants are entitled for compensatory costs of Rs.5000/-? .. No (5) What order and decree.? As per final order. 6 8. Considering the submissions made by the learned Counsel for both the parties, the trial Court decreed the suit and granted perpetual injunction restraining defendant Nos. 1 to 3 from causing interference and obstruction to the pipe line of the plaintiff. 9. Being aggrieved by the said judgment and decree dated 17-08-2005 passed by the 3rd Joint Civil Judge, J.D. Parbhani in R.C.S. No. 345/2001, the defendants preferred R.C.A. No. 76/2005. Said appeal came to be allowed by the judgment and decree dated 29-08-2008. The appellate Court categorically held that the plaintiff failed to prove that the defendants obstructed the use of his pipeline at any time. Not only that, the plaintiff failed to produce any cogent evidence on record to show that the defendants caused any damage to the pipeline. The appellate Court in Para 5 of the judgment observed that " Defendants have no objection to install the motor in the river bed but for that 7 they have to obtain the permission and accordingly they have obtained the permission for the same. Defendants have no objection for the pipeline. He has not raised any obstruction or caused any damage to the pipeline of the plaintiff." "Hence, it appears that the real dispute is suppressed in the pleadings. In the prayer clause injunction is claimed that the defendants should not cause any damage to the pipeline which is running through the field of the defendants. In fact, defendants have not caused any damage to the pipeline nor have caused any obstruction to the plaintiff to take water from the pipeline." It is clear that the plaintiff failed to produce any evidence on record to show that at any time the defendants tried to obstruct his water pipeline. 10. Along with learned Counsel appearing on behalf of the parties, I have gone through the pleadings of the parties and the evidence on record. The pleadings and evidence on record 8 reveal that the relations of the parties over the pipeline of the plaintiff, passing through the land of the defendants, are strained and there had been proceedings under Section 107 of the Cr.P.C. against both the parties. The defendants had admittedly consented for laying underground pipeline by the plaintiff through their intervening land for the irrigation of the plaintiff's land from the water of Purna river adjacent to the land of the defendants and the plaintiff laid the pipeline by spending huge amount and he has been irrigating his land by taking river water thorough that pipeline. Though the defendants had complained about leakage to the pipeline and thereby damage to the crops in their field, those allegations were not found true by the Commissioner appointed for the spot inspection. The only grievance of the plaintiff as stated in the plaint was that the defendants on 13-08-2001 had threatened the plaintiff that unless the plaintiff removed the pipeline within two days they would close the 9 water course and remove the pipeline. Besides this, no obstruction to the use of the pipeline by the defendants was pleaded. The defendants during the evidence admitted that they had no objection for the use of the pipeline by the plaintiff but they insisted that the plaintiff should observe the conditions agreed to by the plaintiff, when they consented for laying pipeline through their field. Taking into consideration that the plaintiff failed to prove the obstruction by the defendants for the use of the pipeline for taking water from the river to his field for irrigation purpose, the learned Appellate Judge has not given much importance to the alleged threat given by the defendants to the plaintiff and he allowed the appeal and dismissed the suit. 11. I see no reason to differ with the appellate Court for the simple reason that in case the defendants at any time try to obstruct the plaintiff from using the pipeline for 10 irrigating his land, there will be fresh cause of action and the plaintiff can seek the necessary relief by filing a fresh suit or by approached the Revenue Officers. In this view of the matter, I find that there is no substance in this Second Appeal. Hence the appeal is dismissed. No order as to costs. [ K.K. TATED, J.] sut/JUL09/sa166.09