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2018 DIGILAW 390 (HP)

Surinder Singh v. Goverdhan Dass

2018-03-19

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The plaintiffs' suit for rendition of a decree, for permanent prohibitory injunction besides for rendition of a decree, for mandatory injunction, stood decreed by the learned trial Court. In an appeal carried therefrom, before the learned First Appellate Court, by the defendant, the latter Court allowed his appeal besides obviously reversed the trial Court's judgment and decree. 2. Briefly stated the facts of the case are that the plaintiff is owner in possession of land comprised in Khasra Nos. 39,40, 106 and 107 in Khatauni No. 2 min/3 min as per misal Hakiyat of Mauza Malandi, Pargana Chhabishi, Tehsil Kumarsain, District Shimla . H.P. It is averred that the aforesaid suit land is irrigated land and is shown as Kiar Doem in the Missal Hakiyat and it is irrigated from Danal Nullah Kuhal from time immemorial i.e. form the time of the forefathers of the plaintiff. Besides this, the plaintiff has developed khasra No.107 as an apple orchard and there is plantation of more than 25 years in age and the plants are at a fruit bearing stage since long. There is Mauza Danal Hadbast No.113 on the upper side of mauza Malandi. Both these Chaks are contiguous and both are sloppy. On the southern side of the land of the plaintiff in mauza Danal, there situates a spring comprised in Khasra No.750 and just near to the said Bowari a tiny stream (rivulet) which falls in Khasra No.760 also joins and thereafter it becomes Danal Nullah and the said nullah has been shown in revenue papers by Khasra No.741 in mauza Danal, the water of the Bowri comprised in Khasra No.750, flows down in natural way and in defined direction without any obstruction from anyone towards mauza Malandi in which the land of the plaintiff is situated and there is another tiny rivulet flowing from eastern side also joins the above said Danal nullah which has been shown by khasra No.733 in Aks Latha of mauza Danal. The water of both the rivulets flows by the side of the land of the plaintiff and there is a permanent kuhal constructed from time immemorial from point A to B (as shown in attached site plan) to irrigate Khasra No.39 and another Kuhal from point C to D has been constructed to irrigate the land and plantation thereon comprised in Khasra No.107 in mauza Malandi. The said Kuhal (as shown in attached site plan) from point C to D was constructed by the plaintiff in the year 1975 and since then the plaintiff has been using the water of Danal Nullah and its rivulets for such irrigation continuously and without any interruption from one either in Chak Danal or in Chak Malandi, as it is the plaintiff only, who is in the use of said water exclusively. The water in said nullah which originates from Khasra No.760 is not plenty but in dry weather it reaches upto the land of the plaintiff just about an inch which is hardly sufficient for irrigating the land of the plaintiff. It is further alleged that defendant has been shown to be owner in possession of Khasra No.740 along with his brother in mauza Danal but in fact this land is in exclusive possession of the defendant as the same was allotted to him in family settlement. The land in the possession of the defendant is not ancestral property but the same was allotted to the father of the defendant by the government of H.P. under Nautor scheme. The defendant or his predecessor never cultivated this land but the defendant straightway planted apple trees thereon. Not only this, the defendant has also encroached upon some government land adjoining to his nautor land which is shown as Khasra No.739 measuring 0-31-75 hectare. In the month of June, 2002, the defendant without any legal and customary rights laid Alkathine pipe of 1 inch dia from point E to point F and diverted the water of nullah aforesaid just from the point adjacent to khasra No. 750 in Chak Danal and due to this, the defendant has diverted the natural source of water and diminished the flow of the water in the nullah which has ultimately affected the right of the plaintiff to use the water of Danal nullah for irrigation purpose. This has been done by the defendant without any permission or consent of the plaintiff and the defendant has no right to do so. The plaintiff asked the defendant to remove the pipe but the defendant is not ready and willing to do so. This has caused substantial damage to the plaintiff because not sufficient quantity of water is left in the Danal Nullah. The plaintiff asked the defendant to remove the pipe but the defendant is not ready and willing to do so. This has caused substantial damage to the plaintiff because not sufficient quantity of water is left in the Danal Nullah. The right of the plaintiff to use the water of Danal Nullah from point A to B and C to D in Khasra Nos. 39, 40,106 and 107 matured by way of customary easement exclusively. The right of the plaintiff has been recognized by the people of the are as the plaintiff and his forefathers have been exercising the same from time immemorial. Accordingly, the plaintiff has filed the suit with prayer to restrain, the defendant from taking or diverting the water in any quantity by laying pipe of any quality or kind, artificial or otherwise or by digging open Kuhal for any purpose from any point situated in Khasra Nos. 760, 750 and 741 which is entirely known as Danal nullah in mauza Danal and for mandatory injunction directly the defendant to remove the alkathene pipe or any other pipe from point E to F or any other type in Danal nullah upto the land of the plaintiff. 3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections of maintainability, cause of action and estoppel. On merits, it is alleged by the defendant that the defendant and other general public as well as the persons having theirs lands by the side of the nullah in question are natural and riparian users of the water from time immemorial in the area and no such Kuhal has been constructed by the plaintiff from point C to D as alleged nor the plaintiff is irrigating this land from the last 45 years from nullah in question, as alleged. As per defendant, the land of the plaintiff is barren at the spot and the plaintiff has recently planted apple plants on it. The plaintiff was not in exclusive use of the water in question, as alleged. In fact, earlier there was plenty of water and with the passage of time and continuous dry weather conditions, the flow of water has been diminished. The plaintiff was not in exclusive use of the water in question, as alleged. In fact, earlier there was plenty of water and with the passage of time and continuous dry weather conditions, the flow of water has been diminished. But the plaintiff is trying to cook up a story of the user of water exclusively by him just to get the entire water to the exclusion of other owners of the land in the nearby. It is further alleged that the nautor land was sanctioned to the defendant in the year 1968-69 and thereafter crops were in that land upto the year 12-13 continuously and the apple plants are in the age of 18-25 years or so. It is further alleged that the plaintiff has nothing to do with the encroachment of Govt. Land by the defendant. The defendant has denied that he has laid the pipe of one inch dia but claimed that the pipe is only for half inch dia and moreover at least five other persons have laid down the pipes in the same source for their personal use. The defendant has further alleged that the plaintiff has started residing at the present place for the last about 15 years only and he never irrigated his land through the water source in question for he objected to the laying of the pipe and has chosen to file the suit. Lastly, it is alleged that plaintiff intends to deprive the others from their right to use the water with the help of Court. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff has been irrigating his lands through the water of Danal nullah drawn through Kuhal as depicted in the annexed site plan, from times immemorial, as amtter of customary right, as alleged? OPP. 2. If issue No.1 is proved, in affirmative, whether the defendant in the month of June, 2002 laid Alkathine pipe of one inch diameter from Point A to F and thereby diverting and diminished the aforesaid water supply of plaintiff as alleged ?OPP. 3. If issue No.1 2 proved, in affirmative whether the plaintiff is entitled to relief of mandatory injunction, as prayed for? OPP. 4. Whether the plaintiff is also entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. 5. 3. If issue No.1 2 proved, in affirmative whether the plaintiff is entitled to relief of mandatory injunction, as prayed for? OPP. 4. Whether the plaintiff is also entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. 5. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 6. Whether the defendant has also got right to use the water of Danal nullah? OPD. 7. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom, by the defendant/respondent herein before the learned First Appellate Court, the latter Court allowed the appeal and reversed the findings recorded by the learned trial Court. 6. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal before this Court, wherein he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 15.05.2007, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether there is a misreading of evidence both oral as also documentary by the learned first Appellate Court, who has also not given the reasons for reversing the findings of the trial Court? Substantial question of Law No.1: 7. The land owned and possessed by the plaintiff is provided assured water, from, Dalan Nullah. The permanent irrigation channel since times immemorial, is, depicted in, Mark-A, to, commence, from point A to B, and, from point C to D, and, another irrigation channel has been constructed by the plaintiff to irrigate his lands borne in khasra No.107, situated in mauza Malandi. The irrigation channel, from, point C to D shown in Mark A, stands constructed by the plaintiff, in the year 1979, and, since then he has been drawing water therefrom, for his irrigating his lands. The irrigation channel, from, point C to D shown in Mark A, stands constructed by the plaintiff, in the year 1979, and, since then he has been drawing water therefrom, for his irrigating his lands. The defendant is averred in the plaint, to, in the month of June, 2002, without any entitlement in him, of, any indefeasible right, either legal or customary to lay alkathine pipe of 1 inch dia, from point E to F, (I) hence sequelling diversion of water, from Dalan nullah, (ii) with a consequential effect of hence diminishing(s) occurring vis-a-vis flow of water, onto the irrigation channels, (iii) besides with a natural consequential effect, of deprivations/diminishings occurring qua availability of water, to the plaintiff, for the latter irrigating his land(s). The defendant had contested the validity of the propagation(s) made by the plaintiff, of his holding no indefeasible right either customary or legal, for utilizing the waters of “Dalan Nullah”. 8. For resting the aforesaid factum, the apt documentary material enjoining allusion thereto, is borne, in Ex.PW1/G, exhibit whereof, is a Wazib-Ul-Arz, wherein, stand embodied, the apposite rights of estate right holders, qua user of water of “Dalan Nullah”. The apt portion of Ex.PW1/G is extracted hereinafter:- “(a) That all the right holders/owners of the land have right to take water for themselves and for the cattle and for their drinking and for irrigation. (b) That for irrigation, the right holders can create canals free of costs subject to the condition that the creation of canal does not damage the existing Kuhal for irrigation or water mill. (c) That no person can change the course of Khad/nullah without the consent of the other owners of the adjoining estate. (d) That no one can erect water mill in the Govt. land without the permission of the Govt.” 9. A perusal of Ex.PW1/G, makes an evident display, (a) of all the estate right holders, holding a right to use water of khad/Nullah, both for drinking and irrigation purpose, (b) and each of the estate right holders, for facilitating, theirs enjoying the waters, of Dalan Nullah, theirs holding a right to create channels therefrom, (c) yet subject to theirs not damaging the existing Kuhal or water mills, (d) and, it being impermissible to the estate right holders, to, without the consent of other estate right holders, to hence change the course of the Khad/Nullah. The afore extracted apt portions, of Ex. PW1/G yet would not firmly rest the controversy, qua the defendant being an estate right holder, and, hence his holding, in the aforesaid manner, an indefeasible right, to use the waters of Dalan Nullah, for all the purposes enunciated therein, (e) unless evidence surged forth, qua his satiating the indispensable condition, of his being a estate right holder, and, his land being situated in close proximity to Dalan Nullah, besides his land being situated in proximity to the water channels, constructed from the source of Dalan Nullah. The apt evidence, in respect of the aforesaid facet, is encapsulated in the testification, borne in the cross-examination of the plaintiff, who, has voiced therein, of the waters of Dalan Nullah being available, for user by land owners, for the purposes encapsulated, in Ex.PW1/G, (f) in case their lands are situated on both sides, of the source, of Dalan Nullah or on either side of courses of rivulets. Nowat, with PW-1 in his cross-examination making a further disclosure, of the defendant's land, being located, on either side of the course, of Dalan Nullah, thereupon, when the defendant obviously being a riparian land holder, (g) hence, all the rights embodied in Ex.PW1/G especially vis-a-vis users by him, of the waters of Dalan Nullah, are, naturally available, to be exercisable by him. Consequently, there is no merit in the contention of the learned counsel for the plaintiff, of, the defendant, not, holding any indefeasible right, either legal or customary, to use the waters of Dalan Nullah. 10. Be that as it may, the plaintiff may succeed, in securing a decree for permanent prohibitory injunction, and, a decree for mandatory injunction, in case, firm evidence, had been adduced by him, in display of the defendant, in laying an alkathine pipe, from, the source, and, upto his field, (i) his damaging the existing water channel, (ii) evidence stood adduced, of his changing the course, of, rivulet, especially without the consent of other estate right holders. Contrarily, with Ex. Contrarily, with Ex. PW1/G, making, an explicit pronouncement of the estate right holders, being evidently entitled, to user of waters of Dalan Nullah, for both irrigation and drinking purpose, and, being also entitled to create canals, (iii) hence, with the defendant laying alkathine pipes, from, Dalan Nullah upto his house for drinking purpose, and, when its laying demonstrably does not damage the existing Kuhal, (iv) thereupon, in the defendant, laying alkathene pipe, from, Dalan Nullah, he cannot, be construed to violate the mandate of Ex.PW1/G. Furthermore, when the plaintiff's witnesses, in their respective cross-examinations, acquiesced of some other persons, also through pipes hence drawing water, from, the source of Dalan Nullah, and, who yet remained unimpleaded, rather with the plaintiff, for reasons known to him, singularly choosing to implead the defendant, does rear an inference of his suit being prima facie not bonafide. Moreover, the plaintiff has averred, of the laying of alkathene pipe, from, Dalan Nullah upto the defendant's house hence diminishing the flow of water upto his fields, yet the aforesaid averment is not validated, by Ex.PW1/G, whereunder, occurs no mandate, (i) of any, of the estate right holders, holding any right to deprive the other estate right holders, from, using the waters of Dalan Nullah, (ii) much less, his holding any right, to ensure qua upon occurrence of any deficiency in supply of water to his fields, his further holding any right to prohibit other estate right holders, from, using the water of Dalan Nullah or his holding any right to seek pronouncement, of, a decree of mandatory injunction vis-a-vis other estate right holders, if they, though laying any alkathene pipe, for feeding their fields from the waters, drawn, from the Dalan nullah, hence, reduce supplies thereof, onto the lands, of the plaintiff. 11. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court being based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Substantial questions of law No.1 answered in favour of the respondent and against the appellant. 12. In view of above discussion, there is no merit in the instant appeal and it is dismissed accordingly. Consequently, the judgment and decree rendered by the learned First Appellate Court in Civil Appeal No.3 of 2005 is affirmed and maintained. Substantial questions of law No.1 answered in favour of the respondent and against the appellant. 12. In view of above discussion, there is no merit in the instant appeal and it is dismissed accordingly. Consequently, the judgment and decree rendered by the learned First Appellate Court in Civil Appeal No.3 of 2005 is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.