IN THE COURT OF CIVIL JUDGE AT JEWARGI

Present:

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

Civil Judge & JMFC, Jewargi

Original Suit No. 108/2011

Dated this the 17th day of January 2014.

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

(By Sri. M.G.S Advocate)

//Versus//

DEFENDANTS:

1. The Deputy Commissioner,

Gulbarga, Dist. Gulbarga.

2. The Managing Director,

K.B.J.N.L (U.K.P), Bangalore.
P.W.D Annexe IIIrd Floor, K.R.
Circle, Bangalore-01.

3. The Asst. Executive Engineer,

K.B.J.N.L, UKP, IBC, Sub-
Division No-26, Yergal Camp,
Tq. Sindagi. Dist. Bijapur.
 2 O.S. No. 108 / 2011

.
( Deft. No.1 by AGP. Deft.
No 2 and 3 by Sri G.V.V
Advocate.)
-o0o-

Date of institution : 01-08-2011

Nature of the suit. : Mandatory Injunction

And Compensation.

Date of commencement of recording

of the evidence : 22-09-2012.

Date on which the Judgment is

pronounced. : 17-01-2014.

Total Duration. : Years/Months/Days/

02 05 16

JUDGMENT

1. This is a suit 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 IBC Distributary No 11 and Lateral No

17 R, and Lateral No 21, Sub Lateral No 4 and 5 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.

 3 O.S. No. 108 / 2011

2. The description of suit property is as fallow:

Sy. No.162 totally measuring 17 acres 02

guntas, revenue assessed at Rs 21.17 ps situated
at Yatnoor village, Tq-Jewargi which is bounded
as under:
East : Balundagi Village Sy Nos
limit area.

West : Sy No 161 of Yatnoor

village.

North : Sy Nos 125, 122 and 121.

South : Sy No 161 of Yatnoor

village.

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 10 acres

out of 17 acres 2 guntas through leakage of water from

irrigation canal of IBC Distributary No. 11 and lateral

No 17R and lateral No 21, sub lateral No 4 and 5. The

suit property of the plaintiff sustained loss and damage

due to lack of proper care and caution in maintenance

by the defendants through their subordinates in office

 4 O.S. No. 108 / 2011

IBC Distributary No 11 and Lateral No 21, sub lateral

No 4 and 5, that cause heavy water logging in the suit

property. Canals water flow from substratum (bottom)

and percolates the suit property sloughly. This is the

reason for 10 acres 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/-.

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

however they caused the loss and damage to the suit

property to the extent of 10 acres by construction of IBC

Distributary No 11 and lateral No 17R, and lateral No

21, sub lateral No 4 and 5 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 Distributary No 11 and

lateral No 17R, and lateral No 21, sub lateral No 4 and 5

but his request is not entertained by any of the

defendants.
 5 O.S. No. 108 / 2011

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

through AGP but he has not contested the suit by filing

written statement, whereas defendant No.2 and 3 have

appeared before the court and 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 plaintiff has to prove due to lack of proper care and

caution in maintenance by the defendants through their

subordinates in office IBC Distributary No 11 and

Lateral No 21, sub lateral No 4 and 5, that cause heavy

 6 O.S. No. 108 / 2011

water logging in the suit property as such suit property

became unfit to cultivate due to impact of percolation as

alleged. It is submitted that the defendants are

restricted their claim over the suit property to the extent

of areas acquired for laying canal and its lateral and not

beyond it. 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. it

is submitted that the defendants control vast project

with qualified engineers and effectively manage the

entire project and attending every minute snag

whenever that arise as it is part and parcel of the

defendant’s work. 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

 7 O.S. No. 108 / 2011

defendants denied all other contents of the plaint and

submitted that suit is 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 10 acres in Sy No 162 through

Krishna Bhagya Jala Nigam Limited, IBC

Distributary No.11?

2. Whether the plaintiff is entitled for the

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 13. It is pertinent to note here

 8 O.S. No. 108 / 2011

that PW-1 has not tendered himself for cross

examination despite providing sufficient opportunities.

On the other hand, defendants have neither adduced

any oral evidence nor produced any documentary

evidence on their behalf.

9. It is to be noted here that despite providing

opportunities neither the counsel for the plaintiff nor

counsel for the defendant addressed the arguments. 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. ISSUE 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

 9 O.S. No. 108 / 2011

and defendants have caused loss and damage to suit

property to the extent of 10 acres out of 17 acres 2

guntas due to lack of proper care and caution in

maintaining the IBC Distributary No 11 and lateral No

17R and lateral No 21, sub lateral No 4 and 5. The

defendants have constructed IBC Distributary No 11

and lateral No 17R and lateral No 21, sub lateral No 4

and 5, and which are 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 plaintiffs suit property 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 No.1 and 2

 10 O.S. No. 108 / 2011

calling upon them to take proper care and caution in

respect of IBC Distributary No 11 and lateral No 17R

and lateral No 21, sub lateral No 4 and 5 canals and to

pay the just compensation towards damage caused to

thew suit property and requested to restore the suit

property in its original fertile condition within 60 days

from the date of receipt of notice. Ex.P.4 and 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.

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

 11 O.S. No. 108 / 2011

issuing statutory notice of 60 days to the defendants,

who are state and the public officers and thereafter filed

this suit on 1-8-2011 on expiry of the statutory period

of 60 days.

15. Plaintiff has sworn on oath and he reiterated the

contents of the plaint 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-13. 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 acknowledgements for having

received the legal notice by the defendants. 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 rough sketch map showing the situation of the

existence of IBC Distributary No 11 and lateral No 17R

and lateral No 21, sub lateral No 4 and 5. Ex P-10 is the

copy of the letter given by plaintiff. Ex P-11 is the

certified copy of the record of rights pertaining to Sy No

 12 O.S. No. 108 / 2011

162 of Yatnoor village, which is for the year 2008-2009.

On perusal of the Ex P-11 it could be seen that the

name of the plaintiff is appearing as owner of the

property to the extent of 17 acres 2 guntas. Ex P-12 is

the certified copy of the letter issued by the agriculture

officer to the administrative officer of Kaada and UKP

Bhimarayangudi Gulbarga dated 10-2-2011 requesting

to take necessary action in pursuance of applications

filed by the formers. Wherein it further seen that the

Assistant Director of Agricultural by making local

inspection, submitted report stating the lands became

slough due to percolation of water from the canals. The

list prepared by the agriculture officer contains the

name of plaintiff at Serial No 64. Ex P-13 is the research

report.

16. It is pertinent to note here that after tendering chief

evidence, PW-1 has not come before the court to tender

himself for cross-examination, despite providing

sufficient opportunities. It appears from the records that

the court has given adjournments to the PW-1 for

tendering himself for cross by imposing cost also.

Moreover the plaintiff has neither taken any pain to get

 13 O.S. No. 108 / 2011

reopened his case, nor led any evidence of the witnesses

in support of his claim. Therefore, the chief evidence of

PW-1 remained un-subjected for cross. Therefore the

chief evidence of the plaintiff has no value in the eye of

law and it is not sustainable, believable and reliable.

Hence, the pleadings of the plaintiff are not proved by

acceptable evidence. Therefore I am of the opinion that

chief evidence of PW-1 has no value and that can not be

considered.

17. Further 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 to

the IBC Distributary No 11 and Lateral No 17 R, and

Lateral No 21, Sub Lateral No 4 and 5 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.

 14 O.S. No. 108 / 2011

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.

further 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 ascertained and court

fee shall be paid on the amount ascertained.

19. 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.

20. The plaintiff has claimed unascertained compensation

as I have already pointed out. No specific compensation

amount has been claimed, he only valued the suit

U/Sec 26 (c) of K.C.F and S.V Acv and paid court fee of

Rs 25/-. The plaintiff ought to have ascertained the loss

 15 O.S. No. 108 / 2011

or damage caused to him and ought to have asked the

compensation on the ascertained amount of loss or

damage by paying the necessary 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 the

considered opinion that unascertained compensation

can not be granted. 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 10 acres in Sy No 162 through

Krishna Bhagya Jala Nigam Limited, IBC distributary

No 11, and he is not entitled for any compensation and

he is not entitled for the reliefs sought in the suit.

therefore I answer Issue No 1 to 3 in the Negative.

 16 O.S. No. 108 / 2011

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

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

following:

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 17th
day of January 2014.)

(SMT. PRATIBHA KULKARNI)

Civil Judge, Jewargi.

ANNEXURE

List of witnesses examined for plaintiffs.

PW-1: Mallappa S/o Shivasharanppa.

List of documents exhibited for plaintiffs

Ex.P.1 : Legal Notice Copy.

Ex.P.2 and 3 : Acknowledgement cards.
Ex.P.4 and 5 : Postal receipts.
Ex.P.6 to 8 : Copies of Letters.
Ex.P.9 : Rough Sketch Map.
Ex.P.10 : Letter issued to Tahasildar.
Ex.P.11 : Record of rights.
Ex.P.12 : Letter of Agriculture Officer.
Ex.P.13 : Research report.
 17 O.S. No. 108 / 2011

List of witnesses examined for defendants:

Nil

List of documents exhibited for defendants:

Nil

Civil Judge Jewargi

18 O.S. No. 108 / 2011