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2018 DIGILAW 579 (HP)

Kishore Kumar v. Jagat Singh

2018-04-09

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned Additional District Judge, Sirmaur District at Nahan, (H.P), in Civil Appeal No.19- N/13 of 2003, dated 28.2.2005, vide which, the learned lower Appellate Court, has set aside the judgment and decree passed by the then learned Senior Sub Judge, Sirmaur District at Nahan, in Civil Suit No.45/1 of 2001, dated 14.1.2003. 2. Material facts necessary for adjudication of this Regular Second Appeal are that appellants/plaintiffs (hereinafter referred to as ‘plaintiffs’) maintained a suit for declaration and Permanent Prohibitory Injunction against the respondent/defendant (hereinafter referred to as ‘defendants’) alleging that the plaintiffs are residents of Village Dhar Kiyari, Tehsil Nahan, comprised in Khasra No.434/51 min, measuring 0- 9 bigha, Khasra No.52, measuring 4-3 bigha, Khasra No.53, measuring 0-3 bigha, Khasra No.63, measuring 5-9 bigha, Khasra No.71, measuring 0-8 bigha, Khasra No.72, measuring 0-10 bigha and Khasra No.73, measuring 2-14 bigha, situated in mauza Dhar Kiyari, Tehsil Nahan, District Sirmaur, which is being irrigated by the ‘Kuhl’ known as ‘Ogal-Ki-Kuhl/Chasma Khala-Ki-Kuhl’, which starts from the edges of Khasra No.351 and 352 and old Khasra No.85 and the plaintiff as well as their predecessor-in-interest had been irrigating their land. The plaintiffs are paying land revenue at the rate applicable since last settlement i.e. Samvat 1984-85 and having been using the same continuously openly and exclusively without any hindrance from anybody including the defendant. In the year 1998, defendant for the first time attempted to take water source through a rubber pipe of ¾ dia and to cause loss to the free flow of ‘Kuhl’ of the plaintiffs, therefore, they were constrained to lodge a complaint with Tehsildar, Nahan, but Tehsildar, Nahan, did not take any action in the matter. In the year 2001, the defendant again laid the rubber pipe with a view to take water from the source of disputed ‘Ogal-Ki-Kuhl’, despite the fact that he has no right, title or interest over the same, as the disputed ‘Kuhl’ is the exclusive source of water of the plaintiffs and despite their repeated request, the defendants did not desist from his illegal acts. 3. Defendant contested the suit and filed written statement whereby preliminary objections regarding maintainability, locus standi, cause of action and estoppel were taken. 3. Defendant contested the suit and filed written statement whereby preliminary objections regarding maintainability, locus standi, cause of action and estoppel were taken. On merits, the plaintiffs were denied that any ‘Ogal-Ki-Kuhl/Chasma Khala-Ki-Kuhl’ started from the edges of Khasra No.351 and 352 and also denied that the plaintiffs have been irrigating their land through this ‘Kuhl’. It is stated by the defendant that there exists a natural water source in the Government land, since time immemorial and the defendant is using its water for drinking purposes continuously without any obstruction from anyone. It is further stated by the defendant that the plaintiffs have no right, title or interest for taking of water by the defendant to his house for drinking purposes and it was stated that the Tehsildar, Nahan, rightly not entertained an application moved by the plaintiffs before him. The plaintiffs have failed to mention the existence of any ‘Ogal-Ki- Kuhl/Chasma Khala-Ki-Kuhl’ and the defendant is using the water of the source continuously without any obstruction from anyone. The defendant has no source for drinking water except the source existing in the Government land and has not done any act, which is detrimental to the plaintiffs and the defendant has a right to get drinking water from the water source, which is existing in the Government land. 4. From the pleadings of parties, the learned trial Court framed following issues : “1. Whether the plaintiffs have exclusive right in the use of Kuhl water known as Ogal-Ki-Kuhl/Chasma Khala- Ki-Kuhl, as alleged ? OPP. 2. Whether the defendants have no right, title or interest in the said Kuhl and its water? OPP. 3. Whether there exists a water source in Government land since time immemorial and the defendant from the time of his forefathers is taking water from this source through a pipe for drinking purpose, as alleged ? OPD. 4. Whether the suit is not maintainable, as alleged ? OPD. 5. Whether the plaintiffs have no locus standi to file the present suit ? OPD. 6. Whether the plaintiffs have no cause of action to file the present suit ? OPD. 7. Whether the plaintiffs are estopped by their act and conduct to file the present suit ? OPD. 8. Relief.” 5. The learned trial Court after deciding Issues No.1, 2 in affirmative, Issue No.3 in negative, Issues No.4, 5, 6 redundant, Issue No.7 in negative, decreed the suit. OPD. 7. Whether the plaintiffs are estopped by their act and conduct to file the present suit ? OPD. 8. Relief.” 5. The learned trial Court after deciding Issues No.1, 2 in affirmative, Issue No.3 in negative, Issues No.4, 5, 6 redundant, Issue No.7 in negative, decreed the suit. 6. Feeling aggrieved thereby the defendant maintained first appeal before the learned Additional District Judge, Sirmaur District at Nahan, H.P, assailing the findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court set aside the findings of the learned Court below. Now, the appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 5.7.2005 on the following substantial questions of law: “1. Whether the learned Additional District Judge has misconstrued, misinterpreted and misapplied jamabandi Ex.P1, Khasra Girdawaries Ex.P2 and Ex.P3, Wazib-ul-Arz Ex.PX, its Hindi version Ex.PX1 and minutes of the Board meeting Ex.PW4/A1 to Ex.PW4/A3 and, therefore, erred in allowing the appeal and dismissing the suit of the plaintiffs ? 2. Whether the view taken by the learned Additional District Judge that the plaintiffs have failed to establish their exclusive right in the source of water of Kuhl for irrigating their landed properties is not possible on the basis of material on record and has erred in accepting the appeal and dismissing the suit?” 7. Learned counsel appearing on behalf of the plaintiffs has argued that the learned lower Appellate Court has not appreciated the evidence to its true prospective and law is not correctly applied. He has further argued that the learned lower Appellate Court has reversed the findings of the learned trial Court without their being evidence on record. 8. On the other hand, learned counsel appearing on behalf of the defendant has vehemently argued that the findings recorded by the learned Court below are just reasoned, after appreciating the evidence, which has come on record to its true prospective. He has also argued that the present appeal deserves dismissal. 9. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 10. He has also argued that the present appeal deserves dismissal. 9. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 10. It is seen from the record that ‘wazib-ul-arz’ finds mention record of rights to use the water of disputed ‘kuhl’ known as ‘Ogal-Ki-Kuhl/Chasma Khala-Ki-Kuhl’ to irrigate their landed property, defendant in the year 1998, attempted to take water source of this ‘kuhl’ through rubber pipe, resultantly blocking the smooth flow of water of this ‘kuhl’. Thereafter, the complaint was made with Teshildar, Nahan, but no action was taken by the Teshildar, suit was maintained. Copy of jamabandi Ex.P1 and copies of Khasra girdwari, Ex.P2 and Ex.P3, pertaining to the suit land, which shows that suit land is shown irrigated land i.e. ‘Kuhl Abbal’. Plaintiffs have also placed on record ‘wazib-ul-arz’, which shows that there exists three water ‘kuhls’ in Village Dhar-Kiyari one is shown as ‘Ogal-ki-Kuhl Chasma’; other is shown ‘Khale-Ki-Kuhl’ originates from river and third one is shown as ‘Ogal-ki-kuhl’ from ‘Chasma’. Therefore, the disputed ‘kuhl’ known as ‘Ogal-ki-Kuhl Chasma-ki-kuhl’ is duly recorded and shown in ‘wazib-ul-arz’ pertaining to the record of rights of villagers of village ‘Dhar-Kiyari’. The disputed ‘kuhl’ known as ‘Ogal-ki-kuhl/Chasma-khala-ki-kuhl’ is shown existing in this village Dhar-Kiyari from old settlement period and the water of this ‘kuhl’ is being used by the villagers for drinking and irrigation purpose. The plaintiffs have also proved on record site plan Ex.PW3/A, showing existence of disputed ‘kuhl’ and other water sources existing nearby the house and landed property of the defendant. PW-3, Amit Gautam, deposed that site plan Ex.PW3/A, has been prepared by him, after visiting the spot and line shown with green ink is disputed ‘kuhl’ and the line shown with red ink is rubber pipe, which has been fixed by the defendant in the disputed water source known as ‘Chasma’ to take water of this source to his house. He has further deposed that the defendant has six sources of water for drinking and other purpose. Plaintiff, PW-1, Kishore Kumar, deposed that the disputed water source known as ‘Ogal-ki-kuhl/Chasma Khala-ki-kuhl’, is existing on the spot since time immemorial, the water of which is exclusively being used by them for irrigating their landed property. He has further deposed that the defendant has six sources of water for drinking and other purpose. Plaintiff, PW-1, Kishore Kumar, deposed that the disputed water source known as ‘Ogal-ki-kuhl/Chasma Khala-ki-kuhl’, is existing on the spot since time immemorial, the water of which is exclusively being used by them for irrigating their landed property. The water source from this ‘kuhl’ originates decreases during summer season and if the water from this water source is taken through rubber pipe, no water will remain to irrigate their landed property. He deposed that the defendant has no concern with the disputed water source and has no right, title or interest to take water from this water source for drinking purpose through rubber pipe. In the year 1998, defendant first time tried to take water from this water source by fixing rubber pipe. He has stated that he would take water from this water source, therefore, they were compelled to maintain complaint before the Tehsildar, Nahan, but Tehsildar, did not take any action and thereafter, the defendant again attempted to take water from this water source by fixing rubber pipe in January, 2001, therefore, they were constrained to maintain the suit. He further deposed that the defendant is having six other water source for drinking and irrigating purpose, which is duly reflected in site plan Ex.PW3/A and has no concern with the disputed source and has no right to take water from this water source by fixing rubber pipe. In his crossexamination, he has stated tat the disputed water source starts from the edges of Khasra No.351 and 352, Khasra No.85, which is Government land. He has denied that whether there exists no disputed ‘kuhl’ known as ‘Ogal-ki-kuhl’. He has also denied whether the correct position qua the existence of disputed ‘kuhl’ has not been depicted in site plan Ex.PW3/A. PW-2 Sher Singh, deposed that the disputed ‘kuhl’ known as ‘Ogal-ki-kuhl’ has been seen by him, which is existing on the spot and the plaintiffs are irrigating their landed property from the water of this ‘kuhl’ known as ‘Ogal-ki-kuhl/Chasma Khala-ki-kuhl’ and the defendant has no right to take water of this source by fixing rubber pipe, because if, the defendant takes water of this water source by fixing rubber pipe, the disputed ‘kuhl’ will become dry and the landed property of the plaintiffs will also become barren. In his cross-examination, he has denied whether the defendant has been taking water of this water source through rubber pipe from the time of his ancestors for drinking purpose. He has stated that the defendant has no concern with the disputed water source for drinking and other purpose. PW-4, Vijay Kumar, Junior Engineer, deposed that the disputed ‘kuhl’ situated at village Dhar-Kiyari was made ‘pucca’ by Block Office and the estimate in this behalf to the tune of Rs.13,000/- and Rs.19,000/-, respectively were prepared by him. He has further stated that the ‘kuhl’ known as ‘Ogalki- kuhl/Chasma khala-ki-kuhl’ is situated at village Dhar-Kiyari, which was made ‘pucca’ by the Block Office. Therefore, the plaintiffs also led cogent, convincing and reliable evidence in support of their claim. It has come on record that the defendant has other source of drinking water, as Irrigation and Public Health Department, has installed a scheme there. 11. At this point of time, statement of the defendant inspires no confidence, as in wazib-ul-arz, there is no mention that the defendant has a right to take water, when it has come on record that there is an alternate source of water for drinking purpose i.e. by way of Irrigation and Public Health Department Scheme. In these circumstances, this Court finds that the learned lower Appellate Court, misconstrued and misinterpreted ‘wazib-ul-arz’ and jamabandi i.e. Ex.P1 to Ex.P3, so the findings recorded by the learned lower Appellate Court are required to be set aside and the findings of learned Court below are required to be allowed, so substantial question of law No.1, is decided accordingly. Substantial question of law No.2, is answered holding that the findings of learned lower Appellate Court is against the law, as the same are against the record and without appreciating the facts, which have come on record to its true perspective and the findings are perverse. 12. In view of the above discussion, the appeal of the appellants is allowed and the impugned judgment and decree passed by the learned lower Appellate Court is set aside and the judgment and decree passed by the learned Court below is restored. However, in the peculiar facts and circumstances of this case, parties are left to bear their own costs. Pending applications, if any, shall also stands disposed of.