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2013 DIGILAW 895 (PNJ)

Om Parkash v. State of Haryana

2013-07-22

Jaswant Singh

body2013
JUDGMENT Mr. Jaswant Singh, J. (Oral) - Plaintiff/appellant-Om Parkash has filed the instant second appeal against the judgement and decree of reversal dated 26.2.2013 passed by the learned Additional District Judge, Bhiwani, whereby the appeal of the defendant/respondent no.3-Jai Bhagwan was accepted, the judgement and decree dated 19.1.2011 passed by the learned Additional Civil Judge (Senior Division) Bhiwani, decreeing the suit of the plaintiff for declaration and prohibitory injunction was set aside and the trial court was directed to return the plaint for its presentation before proper forum. 2. Facts giving rise to the present second appeal are that defendant/respondent no.3-Jai Bhagwan moved an application to the S.D.C.O. Sorkhi for restoration of water course AB through khasra no.571//7/1/3 and 8/2 belonging to the plaintiff. S.D.C.O.Sorkhi after visiting the spot dismissed the said application. Aggrieved against the same, defendant/respondent no.3 filed an appeal before the Divisional Canal Officer, Water Services Division,Bhiwani, who vide order dated 25.7.2007 accepted the appeal and ordered restoration of the watercourse AB through aforesaid killa no. It is thereafter, that appellant/plaintiff filed a civil suit on 13.8.2007 for declaration to the effect that the said order dated 25.7.2007 passed by Divisional Canal Officer was illegal, null and void and further sought prohibitory injunction to the effect that the defendants be restrained from implementing the order dated 25.7.2007. The case of the plaintiff/appellant was that he was owner in possession of khasra no.571//7/1/3 and 8/2 and there existed no watercourse, restoration of which could be ordered by the Divisional Canal Officer. 3. Upon notice, defendant no.3-Jai Bhagwan contested the suit and filed reply stating therein that his land can only be irrigated from the existing khal which was in existence since the time of digging of canal and the same was a sanctioned and old khal which had been demolished by the plaintiff. 4. On the pleadings of the parties, issues were framed including the issue of maintainability of suit. Both sides led evidence in support of their respective pleas. The learned trial Court on the basis of evidence held that since there existed no khal, even temporarily, and as such civil court had jurisdiction to try the suit. Accordingly, trial court vide judgement and decree dated 19.1.2011 decreed the suit of the plaintiff. Both sides led evidence in support of their respective pleas. The learned trial Court on the basis of evidence held that since there existed no khal, even temporarily, and as such civil court had jurisdiction to try the suit. Accordingly, trial court vide judgement and decree dated 19.1.2011 decreed the suit of the plaintiff. Aggrieved against the same, defendant no.3-Jai Bhagwan filed an appeal which was accepted vide impugned judgement and decree dated 26.2.2013 passed by the learned Additional District Judge, Bhiwani, holding that in view of provisions of Section 25 of the Haryana Canal and Drainage Act,1974 (for short the Act) the civil court had no jurisdiction to entertain or decide any question relating to matters falling under Sections 17 to 24 of the Act. Accordingly, the judgement and decree passed by the trial court was set aside and the trial court was directed to return the plaint for its presentation before proper forum. 5. Counsel for the appellant heard. 6. Before proceeding further, it would be appropriate to refer to Section 25 of the Haryana Canal and Drainage Act,1974,which is reproduced as under:- “25. Bar of jurisdiction of civil court.— Notwithstanding anything contained in this Act or any other law for the time being in force, no civil court shall have jurisdiction to entertain or decide any question relating to matters falling under sections 17 to 24.” 7. Learned counsel for the plaintiff/appellant has not been able to dispute that under Section 25 of the Act, jurisdiction of the Civil Court is expressly barred from entertaining or deciding any question relating to matters falling under Sections 17 to 24. It is further not disputed that restoration of khal in question was ordered by the Divisional Canal Officer under Section 24 of the Act. 8. Accordingly, finding no merit in the present appeal the same is hereby dismissed. However, keeping in view the fact that appellant had been pursuing wrong remedy, he would be at liberty to seek appropriate legal remedy in accordance with law and it is hoped that while doing so the time spent by him in pursing wrong remedy would not come in his way. 9. Dismissed. ---------0.B.S.0------------ —————————