Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1733 (HP)

Paras Ram v. State of Himachal Pradesh

2016-08-20

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the impugned judgement and decree of the learned District Judge, Bilaspur, Himachal Pradesh, whereby he affirmed the rendition of the learned Senior Sub Judge, Bilaspur. The plaintiff standing aggrieved by the concurrently recorded renditions against him by both the learned Courts below concert through the instant appeal constituted before this Court, to reverse the judgements and decrees of both the Courts below. 2. The facts necessary for rendering a decision on the instant appeal are that plaintiffs filed a suit for permanent injunction as against the respondents restraining them from interfering in the flow of water for irrigation purpose from a source named Jaral Bain. It was alleged by the plaintiffs that they were owner in possession of the irrigated land comprised in Khasra No. 130, 142, 258, 169, 287, 144, 141, 170, 145, 278, 82 and 155. It was alleged that this land was being irrigated from the water of the source named as Jaral and Bain Bawari situated in village Sayar. It was alleged that there is a water source situated in Khasra No. 283 from where the water for irrigation flows to the land of the plaintiffs who used to irrigate their land by the said water and that the lands of the plaintiffs situated downward from the said water source. It was alleged that the defendants had started threatening the plaintiffs to tap the water of the said source forcibly and without the consent of the plaintiffs and to take it to other villages for drinking purposes and have started digging a well near the source. It was alleged that in case the water is tapped in this manner, the plaintiffs would be put to a great loss hence the suit for injunction. 3. The suit of the plaintiffs was resisted by defendants whereby they have taken preliminary objections that of maintainability, cause of action and locus standi. On merits, they pleaded that there is water source situated in Khasra No. 276 owned and possessed by State of H.P. which was described in the revenue record as Gair Mumkin Bowli as Rafaiam i.e. for the benefit of the public at large. On merits, they pleaded that there is water source situated in Khasra No. 276 owned and possessed by State of H.P. which was described in the revenue record as Gair Mumkin Bowli as Rafaiam i.e. for the benefit of the public at large. In regard to Khasra No. 283 it was pleaded by the defendants that this Khasra number is owned and possessed by Sant Ram alongwith Devku and the department was going to dig the well in this land on the request of the public at large. It was pleaded that the plaintiffs cannot restrain other owners from digging wells in their respective land and defendants were exercising their legal rights with consent of owners of Khasra No. 283. Thus, it was pleaded that the suit is liable to be dismissed. 4. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- 1. Whether the suit in the present form is not maintainable, as alleged? OPD. 2. Whether the plaint does not disclose any cause of action and if so its effect? OPD. 3. Whether the plaintiffs have been in the user of the water of the of the source known as Jaral and Bain Bowri for irrigation of their land and exclusively as of right? OPP. 4. If issue No.1 is proved in affirmative whether by tapping the water source by the defendants for bringing water supply to the inhabitants in Khasra No. 283 caused interference in this user of the water by the plaintiffs for irrigation by diminishing the flow of the water? OPP. 5. Whether the plaintiffs are entitled for the relief of permanent injunction? OPP. 6. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs besides the learned First Appellate Court dismissed the appeal preferred therefrom before it by the plaintiff. 6. Now the plaintiff has instituted the instant Regular Second Appeal before this Court, assailing the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 30.11.2004 this Court admitted the appeal on the hereinafter extracted substantial question of law:- “Whether the findings of the learned trial Court as affirmed by the learned First Appellate Court are dehors the evidence on record?” Substantial question of law 7. When the appeal came up for admission on 30.11.2004 this Court admitted the appeal on the hereinafter extracted substantial question of law:- “Whether the findings of the learned trial Court as affirmed by the learned First Appellate Court are dehors the evidence on record?” Substantial question of law 7. Water tapped, in, Jaral and Bain Bowri, stands contended by the plaintiffs to be the source for irrigating their fields. The aforesaid source of water occurs in Khasra No. 276, khasra number whereof stands not owned by the plaintiffs. The defendants by theirs tapping the water of Jaral and Bain Bowri stand espoused by the plaintiffs to cause deprivation of water to them though meant for irrigating their fields which occur below khasra No. 276. They claims a relief for injuncting the defendants from tapping the water of Jaral and Bain Bowri on the anvil of theirs since time immemorial using its water for irrigating their fields. Obviously they contend qua even when its location occurs on Khasra No. 276, khasra number whereof stands not owned and possessed by them it yet constituting a servient heritage for facilitating the user of its water by them for irrigating their fields occurring below it given its relevant user holding continuity for 20 years hitherto, whereupon they statutorily stand vested with a prescriptive right qua its user for irrigating their fields, fields whereof constitute the dominant heritage. However, for pronouncing upon the sinew of the aforesaid contention an allusion to the provisions of Section 17 of the Indian Easements Act, 1882, which stand extracted hereinafter, is imperative. “17. Rights which cannot be acquired by prescription – Easements acquired under Section 15 are said to be acquired by prescription and are called prescriptive rights. However, for pronouncing upon the sinew of the aforesaid contention an allusion to the provisions of Section 17 of the Indian Easements Act, 1882, which stand extracted hereinafter, is imperative. “17. Rights which cannot be acquired by prescription – Easements acquired under Section 15 are said to be acquired by prescription and are called prescriptive rights. None of the following rights can be so acquired:- (a) a right which would tend to the total destruction of the subject of the right, or the property on which, if the acquisition were made, liability would be imposed; (b) a right to the free passage of light or air to an open space of ground; (c) a right to surface water not flowing in a stream and not permanently collected in a pool, tank or otherwise; (d) a right to underground water not passing in a defined channel.” A perusal of the aforesaid provisions portray of clause (d) thereof standing constituted therein to be one of the prescriptive rights being not amenable for acquisition by way of prescription, prescriptive right whereof is qua right to user of underground water not passing in a defined channel. However for determining whether hence the prescriptive right of easement staked by the plaintiffs qua user by them of the water held in Jaral and Bain Bowri for irrigating their fields falls within the ambit besides within the precincts of the domain of clause (d) of Section 17 whereupon hence they would stand baulked to claim any relief against the defendants, standing forestalled by an injunctive decree from tapping its water for providing drinking water to co-villagers an allusion qua the factum probandum of the water source standing nomenclatured as Jaral and Bain Bowri is a vivid besides visible pronouncement of the Bowri aforesaid obviously therewithin holding underground water also is a loud bespeaking of hence it standing held therewithin in a defined channel. Consequently, given the occurrence of underground water in a defined channel forestalls the plaintiffs to stake any prescriptive right qua its user by them for irrigating their fields which occur below it. Consequently, given the occurrence of underground water in a defined channel forestalls the plaintiffs to stake any prescriptive right qua its user by them for irrigating their fields which occur below it. Reiteratedly, hence when water if held not in a defined channel would empower the plaintiffs to stake a prescriptive right qua its user by them for irrigating their fields contrarily when it is held in a defined channel emasculates the concert of the plaintiffs to stake any prescriptive right qua its user by them for irrigating their fields which occur below it. 8. Be that as it may, the water which flows to the fields of the plaintiffs from Jaral and Bain Bowri, Bowri whereof apparently holds therewithin underground water in a defined channel rendering its flow therefrom onto the fields of the plaintiffs to be a subterranean flow whereupon also the plaintiffs would hold a right to injunct the defendants from tapping its water for providing drinking facilities to co-villagers only on upsurgings of cogent evidence personificatory of the defendants in tapping the underground water of Jaral and Bain Bowri theirs making an excessive drawal of water therefrom sequelling the subterranean flow of water therefrom onto the fields of the plaintiffs to stand diminished besides reduced with a concomitant effect of reducing the crop yielding capacity of their fields which occur below it. In coming to the aforesaid conclusion this Court finds succor from a judgment of the Allahabad High Court reported in Het Singh and others vs. Anar Singh and others AIR 1982 Allahabad 468, paragraph 3 whereof stands extracted hereinafter:- “Without going into the merits of the that finding and accepting it as a fact that the plaintiffs had been irrigating their fields by taking water from the well in dispute for more than 20 years, the question that arises in this Second Appeal is whether a right to do so by way of easement could be acquired by prescription in view of the provisions contained in Section 17 of the Easement Act which is to the effect that a right to underground water not passing in a defined channel cannot be acquired as an easementary right by prescription under Section 15 of the Act. A right to draw water from a well is surely a right to underground water and it is not the case that the plaintiffs right to enjoy water from their well was interrupted by something done by the defendants to the source of water in the well which was through a defined channel, by doing something, such as drawing an excessive supply of water from their own well from the same underground source.” 9. Apposite evidence in personification of the aforesaid principle of law stood constituted in the report of the hydrologist wherein he made loud echoings in consonance with the aforesaid principles encapsulated hereinabove. Though PW-2 stepped into the witness box wherein he has made a pronouncement of his measuring the discharge of water from Jaral and Bain Bowri in sequel whereto he prepared Ext.PW-2/A, exhibit whereof holds pronouncements of the tapping of the relevant underground water by the defendants begetting the consequence of dwindling the subterranean flow of underground water onto the fields of the plaintiff rendering them hence to stand deprived of water in plentiful for facilitating theirs irrigating their fields, fields whereof stand depicted in the revenue records to be irrigated land. However, the aforesaid pronouncements do not hold any vigour given his making echoings in his cross-examination qua his at the time of his visiting the ‘Jaral and Bain Bowri’ his not holding any equipments to measure the depth of water occurring therein. Also his voicing in his cross-examination of his making measurements of surplus water at the relevant site and not of ground water besides his acquiescing to the suggestion put to him by the learned defence counsel while holding him to cross-examination of wells as, is, Jaral and Bain Bowri holding underground water, constrains a conclusion of his not measuring either the depth of the under groundwater occurring therein nor his determining by applying scientific methods the trite factum qua the consequence of the defendants in tapping its water for supplying it to co-villagers entailing a diminution of its subterranean supply to the fields of the plaintiffs. In sequel, with the plaintiffs not proving the factum qua the subterranean supply of its water onto their fields standing diminished, in sequel to the defendants tapping it therefrom also with the plaintiffs not cogently proving by adducing best evidence in display of on the defendants tapping its water the crop yielding capacity of the relevant fields facing diminution, fosters a conclusion of act of the defendants in tapping the water of Jaral and Bain Bowri not begetting the consequence of its subterranean flow therefrom onto the fields of the plaintiffs either reducing or diminishing. As a corollary the injunction as claimed by the plaintiffs against the defendants from restraining them for tapping its water warrants its standing refused dehors the factum of theirs holding a right to claim its subterranean flow therefrom onto their fields. The substantial question of law is answered against them. The judgments and decrees rendered by the both the Courts below are maintained and affirmed. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All pending applications also stand disposed of accordingly. Records be sent back forthwith.