SUNKA RAM v. ONKAR CHAND — 1998 DIGILAW 118 (HP)

JUDGMENT A.L. VAIDYA, J.—The present appellants filed a suit for declaration that residents of Tikas, Machhan, Tang, Rasehar, Uthra Gran have right to irrigate their lands through the water channel known as Nichruhal from the time immemorial and the defendants and the residents of Tikas Dhaloon Khas, Rin, Patialkar, Karahpura and Phaloundi have no right in the water of said Kuhl. Plaintiffs case as pleaded before the trial Court had been that the plaintiffs have right to take water of Kuhl Nichruhal over the Kuhl Kanuhal by way of putting a Trangri (Culvert). According to the plaintiffs, the plan filed with the plaint denoted two Kuhls by the words A, B, C, D, E, F and G, H, D, K, L respectively. It has been further pleaded that in the year 1947 the defendants started demolition of Trangri at Point D which had been placed above the Kuhl and started interfering in the rights of irrigation held by the plaintiffs. A Criminal Case under Section 107/151, Cr.P.C, according to the plaintiffs, was lodged against the defendants, which was compromised and Trangri was again fixed by the plaintiffs. 2. It has also been pleaded by the plaintiffs that the defendants filed a suit before the Collector under the Punjab Minor Canals Act, 1905 (hereinafter referred to as the Act’), in the year 1951 and in that suit, the present plaintiffs raised an objection that the Collector had no jurisdiction under Section 43 of the aforesaid Act to entertain such a suit. According to the plaintiffs, the said suit on 13.2.1961 was dismissed but then the present defendants, who were plaintiffs in that suit preferred, an appeal before the Deputy Commissioner, where the appeal was accepted and the suit was remanded. It has been further averred that after remand the suit was decreed by the Revenue Assistant (Collector) on 27.10.1966. The present plaintiffs assailed that decree dated 27.10.1966 passed by the Revenue Assistant (Collector) before the Collector, exercising the powers of Commissioner under the Act, but the appeal of the plaintiffs was dis-allowed vide judgment dated 30.7.1967 and the order passed by the Revenue Assistant was maintained. 3. In the present suit a declaration has been sought that the decisions given by the Revenue Assistant and Collector, as referred to above, were without jurisdiction and as such nullity and not binding upon the rights of the plaintiffs. 3. In the present suit a declaration has been sought that the decisions given by the Revenue Assistant and Collector, as referred to above, were without jurisdiction and as such nullity and not binding upon the rights of the plaintiffs. It has also been pleaded that decree for injunction passed under the Act could not be so done by the authorities. 4. The defendants contested the suit and the plaintiffs right to irrigate their lands from the water of disputed Kuhl has not been admitted. The defendants took certain preliminary objections in their written statements that the suit was not triable by the Civil Court in view of the provisions of the Act and was barred by principles of res judicata. It was also objected that the suit in the present form was not maintainable and it was without limitation. 5. The defendants on merit pleaded that the lands of the plaintiffs were not irrigated by the water of Kuhl Nichruhal and taking of water by means of Trangri over Kuhl Kanuhal was the fiction and not reality. According to the defendants, the excess water of the disputed Kuhl falls in Kuhl Kanuhal. It has also been averred by the defendants that the decrees passed by the Revenue Court under the Act have already been executed. 6. The parties were put to trial on the following issues: 1. Whether the Civil Court has jurisdiction to decide the present suit? OPP 2. Whether suit is barred by principles of res judicata? OPD. 3. Whether the suit is within time? OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiffs lands are irrigated by water of Kuhl Narchruhal? OPP 6. Whether the plaintiffs, have a right to pass the water of Kuhl Nachruhal by Trangari, as alleged over Kuhl Kanuhal? OPP 7. Whether order dated 27.10.1966 of Collector and dated 3.6.1967 of Commissioner are without jurisdiction and not binding on plaintiffs? OPP 8. Relief. 7. Issue No. 1 was decided in the affirmative. Under Issue No. 2 it was held that suit was not barred by principles of res judicata. Issue No. 3 was decided in the affirmative. Issues No. 5, 6 and 7 were also disposed of in the affirmative while issue No. 4 in the negative. Suit of the plaintiffs, as such, was decreed. 8. Under Issue No. 2 it was held that suit was not barred by principles of res judicata. Issue No. 3 was decided in the affirmative. Issues No. 5, 6 and 7 were also disposed of in the affirmative while issue No. 4 in the negative. Suit of the plaintiffs, as such, was decreed. 8. The aforesaid judgment and decree were assailed in an appeal before the learned District Judge, where after hearing the parties, learned District Judge accepted the appeal and after setting aside the judgment and decree appealed against, suit was dismissed. 9. The aforesaid judgment and decree passed by the first Appellate Court have been assailed in the present appeal on various grounds. Learned Counsel for the parties have been heard and the record has been "scrutinised. 10. The main points which require to be determined in the present appeal on the basis of the arguments submitted by the learned Counsel for the parties are as under: (1) Whether the Civil Court has got jurisdiction to try the suit of the present nature? (2) Whether the order/judgment passed by the authorities under the Act was final between the parties and could not be assailed in the Civil Court or could be assailed in the Civil Court? 11. The plaintiffs in their suit had sought two kinds of declaration. Firstly, the judgment/order/decree passed by the authorities under the provisions of the Act were without jurisdiction and nullity and secondly a declaration has been sought with respect to right of irrigation claimed by the plaintiffs alongwith permanent injunction. 12. At this stage, it may be very specifically pointed out that it is the jurisdiction of the Civil Court to declare the order/judgment/ decree passed by the authorities to be void being without jurisdiction. In the present case, the plaintiffs pleaded that the decrees passed by the authorities under the provisions of the Act were without jurisdiction and have to be held nullity and not binding on the plaintiffs per-se their rights of irrigation claimed by them. So far as these allegations, as made in the plaint, are concerned they definitely give jurisdiction for Civil Court to declare those order/ judgment/decrees passed under the Act to be without jurisdiction being nullity. So far as these allegations, as made in the plaint, are concerned they definitely give jurisdiction for Civil Court to declare those order/ judgment/decrees passed under the Act to be without jurisdiction being nullity. It is a separate matter that Civil Court comes to the conclusion that the orders passed under the Act were passed by the concerned authorities, who had jurisdiction to pass such orders. In this view of the matter, t1 e Civil Courts will have jurisdiction to dispose of the present suit. However, it may be pointed out that the Civil Court can declare the order/judgment/decree passed under the provisions of the Act to be nullity in case the concerned party has approached the Civil Court within the statutory period. 13. Ex. P-29 is the order dated 27.10.1966 passed by the Revenue Assistant, Kangra, exercising the powers of Collector in the District under the Act. This was a regular Suit No. 3 of 1965 disposed of by the Revenue Assistant, which was filed under Section 43 of the Act. In this suit, on the basis of the pleadings of the parties, the following issues were framed by the Revenue Assistant : 1. Is the suit in time? OP 2. Is the suit not triable by the Revenue Court under Section 43 of the Minor Canals Act? OD 3. Are the Zamindars of Tikas Tang, Ramerh, Machhan, Uthragran, Narwana, necessary parties to the suit? OD 4. Are the defendants entitled to take the water for their lands from the Kuhl running up the Kuhl Khanul by means of the Trangri? OP 5. Which Tikas are served by Kuhl Khanul? OD 6. If Issue No. 4 is decided in favour of the defendants whether any damage has been caused to the plaintiffs by the construction of the Trangri? OD 7. Can the applicants be made party to the suit at this stage? OD 8. Relief. 14. After the regular trial, learned Officer came to the conclusion that the defendants have got no right to take the water from Kuhl Nachrul by passing it through a Trangri over the Kuhl Khanul. However, it was also observed that the defendants can only pass the water through Kuhl Nachrul over the Kuhl Khanul with the consent of the plaintiffs. Ex. P-28 is the judgment dated 3.7.1967 passed by the Collector in exercise of the powers of Commissioner under the Act. However, it was also observed that the defendants can only pass the water through Kuhl Nachrul over the Kuhl Khanul with the consent of the plaintiffs. Ex. P-28 is the judgment dated 3.7.1967 passed by the Collector in exercise of the powers of Commissioner under the Act. After hearing the parties and after writing a speaking order, the Collector, Kangra, came to the conclusion that the conclusion arrived at by the Revenue Assistant was correct. The appeal, as such, was dismissed. 15. At this stage, for the sake of convenience Section 43 of the Act, can safely be referred, which runs as under: "43.(1) Save as provided in the preceding Section, whenever a dispute arises between two or more persons in regard to their mutual rights and liabilities in respect of the ownership, construction, use or maintenance of a Canal or water-course, and any such person applies in writing to the Collector stating the matter in dispute, the Collector shall give notice to the other person or persons interested that on a day to be named in such notice or any such day to which the proceedings may be adjourned, he will proceed to inquire into the matter, in dispute. (2) Upon the day so named or any such subsequent day as aforesaid, the Collector shall proceed to hear and determine the dispute in the following manner, that is to say— (a) if the dispute relates to the ownership of a canal or the mutual rights of owners in the use of the water of such canal or the construction or maintenance of a canal or the payment of any share of the costs of such construction or maintenance or the distribution of the supply of water from a canal, the Collector shall proceed as a Revenue Court under the provisions of the Punjab Tenancy Act, 1887, and the provisions of that Act regarding appeals, revisions and reviews shall be applicable. (b) if the dispute relates to a water course the Collector shall hear and determine the case as a Revenue Officer and shall make such order thereon as to him seems fit, and such order shall, unless set aside on appeal to the Commissioner, be conclusive as to the use of distribution of water for any crop sown or growing at the date of such order. The order of the Commissioner on appeal shall in every such case be final." 16. The suit before the Collector under the Act was filed under the provisions of Section 43 of the Act, as referred to above. In Ex. P-29 while describing the facts of the case, the Revenue Assistant described the pleadings of the parties as under: "This plaint is on the ground that by the construction of this Tangri over the said Kuhl, the plaintiffs have been deprived of the normal quantity of the water that they used to get earlier and that the Kuhl gets filled up with stones and dirt and that the defendants have no right to take the water by constructing a Tangri over Kuhl Khanul and to deteriorate the condition of the said Kuhl. The defendants had been asked to remove the Tangri and to desist from causing damage to the said Kuhl, but they refused to do so. Hence, this plaint has been filed. The defendants filed their written statements denying the allegations made against them and alleging that the defendants have got the right to take water through Nachrul Kuhl by constructing a Tangri over Khanul Kuhl and the plaintiffs have no right to resist them." 17. Under Issue No. 1 the Revenue Assistant held that this issue was decided in the appellate Court in favour of the plaintiffs by the District Collector, Kangra, exercising the powers of the Commissioner, under the Act. Under Issue No. 2 it was decided that the dispute about the Kuhl can be settled by the Collector under Section 43 of the Act. Under this Issue, legal as well as factual position has been discussed in detail. It has been discussed under this Issue that the Act was applicable to the Kuhl under dispute, after referring to the notification issued in this particular behalf. It was held under Issue No. 3 that the Zamindars of the areas were necessary parties. The Revenue Assistant under Issue No. 4 came to the conclusion that the defendants were not entitled to take water from Kuhl Nachrul by running up the Kuhl Khanul by means of Tangri. This was so done after appreciating the evidence and law in this particular behalf. Under Issue No. 5 it was held that Ex. The Revenue Assistant under Issue No. 4 came to the conclusion that the defendants were not entitled to take water from Kuhl Nachrul by running up the Kuhl Khanul by means of Tangri. This was so done after appreciating the evidence and law in this particular behalf. Under Issue No. 5 it was held that Ex. P-4, which was the copy of Rewaj-am-Abpashi of settlement of 1868, showed that Kuhl Khanul irrigated the lands in tika Andrar and Narwana in village Narwana and from the month of Chet to 16 Jeth, water of this Kuhl passes through village Blehr and Tangroti and reaches village Dhalun where it irrigates the lands of village Dhalun. It has been further held by the Revenue Assistant that after 16th Jeth, this Kuhl irrigates the lands of Mauza Blerh. Under Issue No. 6 it was held that as Issue No. 4 was decided in favour of the plaintiffs, this issue was also decided in favour of the plaintiffs because the defendants were not entitled to take water over the Kuhl Khanul by means of a Tangri as it diminishes the water of the Kuhl and make obstruction in it. Under Issue No. 7 it was held that the applicants were made parties by the order of the Collector on 18.11.1958, hence the issue was made redundant. 18. The aforesaid order passed by the Revenue Assistant was maintained by the Collector, exercising the powers of the Commissioner under the provisions of the Act. It has been very forcefully contended on behalf of the plaintiffs that the authorities under the Act had no power whatsoever to pass a decree of injunction which was without jurisdiction. It may be pointed out here that the Revenue Assistant came-to the conclusion that the defendants had got no right to take water in Kuhl Nachrul by passing it through a Tangri over the Kuhl Khanul and the defendants were allowed to pass water through Kuhl Nachrul over the Kuhl Khanul with the consent of the plaintiffs. I think such an order passed by the Revenue Assistant and maintained by the Collector, exercising the powers of Commissioner under the Act, was within the provisions of Section 43 of the Act. I think such an order passed by the Revenue Assistant and maintained by the Collector, exercising the powers of Commissioner under the Act, was within the provisions of Section 43 of the Act. For arguments sake, if the order was passed by the authorities acting as Revenue Court and even if any injunction order had been passed that would have been within the purview of Section 43 of the Act. Thus, on the basis of the aforesaid facts it cannot be said that the Revenue Assistant and the Collector, (exercising the powers of Commissioner under the Act) had no authority to pass an order under Section 43 of the Act. On the other hand, order passed by these authorities come within the purview of the Act, more so within the ambit of Section 43 of the Act. Thus, on merit it is held that the orders passed by the authorities assailed in the present suit under the provisions of the Act were valid and binding on the parties and cannot be said to be without jurisdiction on any account whatsoever. It may be referred here that the order passed by the Commissioner under Section 43 of the Act has been given finality, as under Section 43 of the Act, it has been very specifically mentioned that the order of the Commissioner on appeal shall in every such case be final. 19. Section 60 of the Act excludes the jurisdiction of the Civil Court to certain matters. Section 60 of the Act runs as under: "Save as in Section 55 provided, no Civil Court shall have jurisdiction in any matter, which a Revenue Officer or Revenue Court is empowered by this Act to dispose of, or take cognizance of the manner in which the (State) Government or any Revenue Officer or Revenue Court exercises any powers vested in it or him by or under this Act." Section 55 of the Act deals with the assessment of compensation, which is not the question involved in the present case. Rights of the parties which have been agitated before the authorities under the provisions of the Act, more so under Section 43 of the Act cannot be re-agitated in the Civil Court especially when finality is attached to such orders passed by the Commissioner under Section 43 of the Act. Rights of the parties which have been agitated before the authorities under the provisions of the Act, more so under Section 43 of the Act cannot be re-agitated in the Civil Court especially when finality is attached to such orders passed by the Commissioner under Section 43 of the Act. Rights being claimed by the plaintiffs in the present suit stood determined under the provisions of the Act and the Civil Court is debarred to take cognizance of such matters already finally disposed of under the Act. It is not the case of resjudicata but a case excluding the jurisdiction of Civil Court in trying certain matters for which exclusive jurisdiction laid before the authorities, as specified under the provisions of the Act. No other point has been stressed. Thus, taking into consideration the overall facts and law, the judgment and decree passed by the first Appellate Court do not require any interference. Accordingly, the present appeal fails and is dismissed. The parties are, however, left to bear their own costs. Appeal dismissed.