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2015 DIGILAW 102 (RAJ)

Thakar Singh v. State of Rajasthan

2015-01-12

VINEET KOTHARI

body2015
JUDGMENT : Vineet Kothari, J. The appellant/defendant No.4, Thakar Singh S/o Sh. Nidhan Singh, has preferred this second appeal being aggrieved by the judgment and decree dated 11.11.2008 passed by Additional District Judge, Sangaria, allowing the plaintiff's appeal being Civil Appeal No.1/2005- Madanlal v. State of Rajasthan & Ors. reversing the judgment and decree of learned trial court of Civil Judge (Sr. Division), Sangaria, whereby the suit filed by the appellant/plaintiff assailing the order No.1418 dated 14.03.2000 issued by the defendant No.2. 2. The lower appellate court while allowing the appellant/plaintiff's appeal gave a direction that the order passed by the Superintending Engineer, Irrigation Department vide Order No.1418 dated 14.03.2000 is illegal and the same shall not be given effect to; and as per earlier order No.4543 dated 18.12.1999, the water supply may be given from Stone No.122/152 to the appellant/plaintiff and the said order will not have any effect against Mr. Mahendra Singh, Sarpanch whose land is also situated on the same Chak and said Sarpanch, Mr. Mahendra Singh, will be entitled to proportionate water supply. 3. Being aggrieved by this direction, the appellant/defendant No.4, Thakar Singh, has filed the present second appeal, in which notices were issued to the respondents. 4. Mr. S.M. Toshniwal, learned Addl. Govt. Counsel appearing on behalf of respondent Irrigation Department submitted that the water supply turns ¼ckjkcanh½ keeps on changing every year or so and, therefore new water supply turns have been fixed by the authorities of the Department. Thus, no such mandmus directions as have been issued by the learned appellate court of Additional District Judge, Sangaria, could be so issued to have a permanent effect. The defendant, Thakar Singh, is also aggrieved by the said order. 5. Having regard to the submissions made by the learned counsel for the appellant/defendant, the following substantial question of law is framed for consideration by this Court: "Whether the lower appellate court below was justified in granting permanent injunction in favour of plaintiff/respondent on the basis of available evidence?" 6. 5. Having regard to the submissions made by the learned counsel for the appellant/defendant, the following substantial question of law is framed for consideration by this Court: "Whether the lower appellate court below was justified in granting permanent injunction in favour of plaintiff/respondent on the basis of available evidence?" 6. Having heard the learned counsel for the parties, this Court is of the opinion that the remedy of civil suits in such matters is misconceived remedy since the Irrigation Act and rules framed thereunder, provide complete mechanism of provisions and rules have been framed in this regard, the civil suits are ill-suited for deciding the rights of the parties to get water supply from the irrigation instalments of the respondent Department. Such rights can be properly decided by the authorities of the Irrigation Department only and the remedy by way of appeal and revisions have also been prescribed in law. In the present case, the learned trial court had rightly dismissed the suit but the first appellate court appears to have gone beyond and on the basis of same evidence issued a direction for distribution of water supply at particular levels. Such findings obviously cannot have a permanent in perineal effect since as rightly submitted by the learned counsel for the respondent Department, the turns for supply of water keeps on changing every 1 and 2-3 years. This Court also does not see any justifiable reason for the learned first appellate to give such type of permanent injunction in favour of plaintiff, Madanlal. The impugned judgment and decree of the first appellate, therefore, deserves to be set aside and the question of law framed above, deserves to be answered in favour of appellant/defendant. 7. In view of above, the present second appeal of the appellant/defendant deserves to be allowed and while answering the question of law in favour of appellant, the present appeal is allowed. The impugned judgment and decree of the first appellate dated 11.11.2008 is set aside and that of the decree dated 14.03.2000 of the trial court, is upheld. No costs. A copy of this judgment be sent to the concerned parties and the courts below forthwith. Appeal allowed.