V.R. Kingaonkar, J.@mdashChallenge in this appeal is to judgment rendered by learned Additional District Judge, Jalgaon, in an appeal (RCA No. 382/1983) whereby and whereunder dismissal decree passed in suit (RCS No. 25/1976) came to be reversed. Original defendants are appellants and Respondent is original plaintiff. Original defendant Nos. 2 to 5 are wife and sons of defendant No. 1 - Shantaram. Original plaintiff - Eknath and defendant No. 1 Shantaram are real brothers inter se.
2. Subject matter of the suit is an open space of 3 Ares area around a well situated in land bearing Gat No. 25, alongwith right to draw water from the well and use of an approach way (Dhav) to reach the well.
3. There is no dispute about the fact that the well is situated in land Gat No. 25 owned by defendants Shantaram and others. There is also no dispute about the fact that land Gat No. 26 is owned by the plaintiff - Eknath and is situated on eastern side of the defendants'' land Gat No. 25. There is no dispute about the fact that the plaintiff - Eknath has right to draw water of the well in land Gat No. 25 and for that purpose is entitled to use the northern edge of the said land.
4. Briefly stated, the plaintiff''s case before the trial Court was that he has right to use an approach way earmarked by letters "YZ" in the plaint map so as to reach the common well. The well is ancestral well and there is open space of three (3) Ares area which was agreed to be kept uncultivated. He has installed an electric pump on the well. He has right to take the bullock-cart upto the well by using the approach way earmarked as "YZ" in the plaint map. The water storage in the well is inadequate. The defendants illegally brought the surrounding three (3) Ares land earmarked by letter ABCD in the plaint map, under cultivation. The defendants further got a portion of the approach way brought under cultivation and thereby obstructed his user of the approach way. Consequently, he filed suit for injunction restraining the defendants from disturbing his use of the approach way for plying of carts, restraining the defendants further from disturbing his use of the open land of three (3) Ares area earmarked by letter "ABCD" in the plaint map and to fix rotation for use of the well water.
5. By filing written statement (Exh.11) defendant No. 1 Shaligram resisted the suit. He denied that the three (3) Ares area marked by letters "ABCD" was kept for common use and was agreed to be kept fallow. He admitted that the plaintiff has right to approach the well but denied that the same could be used as cart-track. He asserted that the plaintiff and another brother by name Vasant were given permission to use water of the well to the extent of 1/3rd share each in or about 1966. However, during implementation of the Consolidation Scheme, by mutual consent, the plaintiff was given right to draw water to the extent of 1/2 share in the well situated in land Gat No. 25. It was also agreed between them that the three (3) Ares land shall be treated as fallow land. He denied that obstruction was caused by him in the plaintiff''s user of the suit well. According to him, the plaintiff can draw water of the well by laying underground pipeline and, therefore, there is no reason for him to grumble about cultivation of the land which is part and parcel of Gat No. 25. He further contended that the plaintiff had previously filed suits bearing (RCS No. 342/70 and RCS No. 465/73) for the similar kind of relief but withdrew both the suits on 2.9.1075 without leave to file afresh suit and, therefore, the present suit was barred Under Order XXIII Rule 1(4) of the C.P.C. On these premises, the defendants sought dismissal of the suit.
6. The trial Court dismissed the suit holding that the plaintiff has no right of ownership in respect of three (3) Ares land as well as right to draw water to the extent of half share from the suit well. The trial Court held that due to withdrawal of the previous suits, (RCS No. 342/70 and RCS No. 465/1973), without prior permission to file afresh suit, the subsequent suit was not maintainable. For these reasons, the suit came to be dismissed. The first appellate Court, however, reversed the findings of the trial Court. The first appellate Court held that the withdrawal of the previous suits could not create bar to file the fresh suit on different cause of action. Consequently, the first appellate Court decreed the suit.
7. The Second Appeal was admitted by order dated 13.2.1991 treating grounds Nos. 4,6,11,13 and 14 shown in the appeal memo as substantial questions of law. I deem it proper to crystalise these substantial questions of law as shown below :
(i) Whether in the facts and circumstances of the present case, withdrawal of the previous two suits (RCS No. 342/70 and RCS No. 465/73) without permission to file afresh suit would create legal bar as provided Under Order XXIII (6) Rule 1(4) of the C.P.C. and hence, the plaintiff was precluded from filing of the suit for injunction and other reliefs as claimed.?
(ii) Whether in the facts and circumstances of the present case, mere admissions of the defendant during implementation of Consolidation Scheme would create legal right in favour of the plaintiff to seek injunction and other reliefs on the basis of the entries in the Consolidation Scheme.?
8. Mr. Navandar, would submit that the withdrawal of the previous two suits by the plaintiff - Eknath precluded him from filing of the suit in view of Order XXIII Rule 1(4) of the C.P.C. and the trial Court was right in dismissing the suit on account of such a legal bar. He would submit that the first appellate Court committed patent error while giving undue importance to the Consolidation record. He would further submit that the permissive right given to the plaintiff could not be held as transformed into right of easement. He would point out further that there is no cart-way available to the plaintiff. He would submit that the impugned judgment is unsustainable. He urged to allow the appeal and restore judgment of the trial Court.
9. None appeared for the Respondent.
10. At the outset, let it be noted that originally the lands Gat No. 25 and Gat No. 26 were parts and parcel of land S. No. 29. Admittedly, the two brothers i.e. plaintiff - Eknath and defendant No. 1 Shantaram held lands S. No. 29/1 to S. No. 29/5 as their ancestral properties. Somewhere in 1945 there took place internal partition between them. Admittedly, land S. Nos. 29/1 and S. No. 29/5 were given to the share of defendant No. 1 - Shantaram, whereas lands S. Nos. 29/2, S. No. 29/4 were given to the share of plaintiff Eknath. S. No. 29/3 was given to the share of defendant Nos. 2 and 3 i.e. wife and son of defendant No. 1. It is also undisputed that the well in question is situated in original land S. No. 29/1. It is the case of the defendants that 1/3rd share was given to the plaintiff in the suit well by permission and he was using the water of the well since 1966 onwards. It is also undisputed that the well in question is ancestral. The revenue record (Exh.29 to Exh.33) would show that the plaintiff was having 1/3rd share in the suit well.
11. The previous suits (RCS No. 342/70 and RCS No. 465/73) were filed for relief of injunction and declaration in respect of the plaintiff''s 1/3rd share in the suit well. Use of plaintiffs 1/3rd share was allegedly obstructed by defendant No. 1 - Shantaram and others. It is true that both these suits were between the same parties. It is also true that the plaintiff withdrew the suits unconditionally. The relevant record reveals that though the suits were withdrawn, yet, the withdrawal was on account of substantial change in the nature of rights available to him. The plaintiff had filed Purshis (Exh.48 and Exh.50) for withdrawal of the said suits. Both the suits were withdrawn on the same day vide orders dated 2.9.1975. The reason for withdrawal of the suits was that the rights were materially changed due to implementation of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The plaintiff asserted that during implementation of the Consolidation Scheme, the location of the lands was changed and his share in the water of the common well was also substantially increased. He asserted that he was allotted eastern share, whereas defendant No. 1 - Shantaram was allotted western share of the lands and, therefore, the previous cause of action did not remain as it is. This fact is duly corroborated by entries in the Consolidation Patrak. It is important to note that the Competent Authority got changed and transferred certain areas of the original lands (S. No. 29/1 to S. No. 29/5) inter se the brothers. The landed properties were originally divided in three (3) parts amongst them which were consolidated and got divided in two parts bearing Gat No. 25 and Gat No. 26, as a result of the implementation of the Consolidation Scheme. The agricultural lands which originally were not in their possession were changed for the purpose of convenience and consolidation. Obviously, there was substantial change in the rights available to the plaintiff.
12. The provision of Order XXIII Rule 1(4) of the C.P.C. reads as follows :
1(4) Where the plaintiff -
(a) abandons any suit or part of claim under Sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
13. A plain reading of above provision would make it manifest that the plaintiff would be precluded from instituting any fresh suit only if it is in respect of same subject matter based on same cause of action. In the present case, the subject matter as well as the cause of action underwent material changes, consequent upon implementation of the Consolidation Scheme. It is difficult, therefore, to say that the plaintiff is precluded from filing afresh suit when the subsequent cause of action does not correspond to the previous cause of action available to him at the time of filing of the earlier suits (RCS No. 342/70 and RCS No. 465/73). The first appellate Court rightly held, therefore, that the suit was not barred.
14. The plaintiff''s version purports to show that the three (3) Ares open land was agreed to be kept fallow as is earmarked letters "ABCD" in the plaint map. His version reveals that the defendants unlawfully brought the said area under cultivation. His version further shows that the approach way shown by letters "YZ" is also obliterated and brought under cultivation by the defendants. He states that the defendants obstructed his right to draw half share in the water of the common well which is owned by the parties. He states that the well was originally owned by the common ancestor. His version reveals that during implementation of Consolidation Scheme, the three shares in the well were changed and only two brothers were allotted right to draw water of the suit well. Nothing of much importance could be gathered from his cross-examination. He admits, however, that he has laid pipeline upto the suit well since about couple of years before he entered the witness box. He admits that he had no access to approach the well up till 1970 by using the same as cart-track.
15. There is oath against oath. D.W. Shantaram (appellant No. 1) deposed that he never had agreed to allow the plaintiff to draw water of the suit well by entering his land Gat No. 25. He further deposed that the plaintiff has no right to use the (Dhav) earmarked by letters "YZ" for plying of bullockcarts thereon. He admits, unequivocally, that the land around the well is fallow. He further admits that he had sown the three (3) Ares land situated around the well.
16. The factual position is explicit from report of the Court Commissioner (Exh.23). The Commissioner''s map would indicate that the plaintiff, in fact, has right to approach the suit well by using the approach way (Dhav) as alleged. The entries in the Consolidation Patrak have presumptive value. Moreover, the defendants also admitted that during course of consolidation of lands, the plaintiff was given half share in the suit well. It appears that by mutual consent, three (3) Ares area was agreed to be kept fallow for the common use of the well in question.
17. The certificate of transfer is issued u/s 24 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 in favour of the plaintiff. The scheme is settled as per Section 21 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The relevant provision of Section 24 reads as follows :
24. Certificate of transfer :
(1) The Consolidation Officer shall grant to every owner to whom a holding has been allotted in pursuance of a scheme of consolidation and to every person to whom a right is allotted under (subsection (6) of Section 21 a certificate in the prescribed form duly registered under the Indian Registration Act, 1908, to the effect that the holding has been transferred to him in pursuance of the scheme.
The Consolidation Officer may, therefore, cause to be prepared a new record of rights in respect of the holdings so transferred and the record of rights so prepared shall be deemed to have been prepared in the Hyderabad area of the State under Hyderabad Record of Rights in Land Regulation, 1358, Fasli, and elsewhere under the relevant Code). (2) Notwithstanding anything contained in any law for the time being in force no stamp or registration fee shall be payable in respect of such certificate.
A plain reading of subclause (1) of Section 24 would make it amply clear that the ownership certificate tantamount to statutory transfer in respect of rights of incidental nature which are either transferred on account of payment of compensation or by mutual consent as the case may be. Considering these aspects, the right to draw water to the extent of half share was bestowed on the plaintiff under the statutory provisions in view of mutual consent of the parties when the five (5) parcels of the lands were consolidated so as to create two separate blocks. It goes without saying that the defendants could not lawfully change user of the fallow land to their advantage. They ought not to have cultivated the small patch of the land which was available for common use of the parties as approach way (Dhav) and earmarked by letters "YZ". At the same time there is nothing on record to show that the plaintiff has right to take bullockcarts through the said approach way. The use of approach way as a cart-track was never contemplated. Considering these aspects, I am inclined to hold that the impugned judgment is quite sustainable except declaratory decree to the effect that the plaintiff - Eknath has right to use the approach way (Dhav) as cart-track.
18. For the reasons aforestated, the appeal is partly allowed. The part of the decree to the extent of declaration of the plaintiff''s rights to take his bullock-carts upto the suit well and injunction to the extent of disturbance caused in the exercise of such right is set aside. Instead the decree is modified by substituting declaratory decree to the effect that the plaintiff shall have right to use the common approach way (Dhav) earmarked by letters "YZ" and use the same as paceway for taking bullocks or agricultural implements upto the suit well. The remaining part of the decree as per final order of the first appellate Court is maintained. The parties to bear their own costs throughout.
