MAHI SINGH Vs. CHUNKO

JUDGEMENT

(1.) This regular second appeal filed by Mahu Singh and other plaintiffs is directed against the judgment and decree of learned District Judge, Simla, reversing on appeal the decision of the trial Court whereby the suit of the plaintiff-appellants against Chaunku Ram and others defendant-respondents had been decreed. As a result of the decision in appeal, the plaintiff's suit stands dismissed.

(2.) The plaintiffs are the residents of village Garog, while the defendants are the residents of village Falahi. Garog Is at a lower level than village Falahi. There is a spring of water known as Chashma Falahi in the area of village Falahi and water from it, after flowing through the land in village Falahi, goes down-stream to village Garog. The plaintiffs' case is that they have been using the water of the stream for irrigating their land situate in Khasra Nos. 10 and 11 since the days of their ancestors. It is stated that the defendants constructed a small cement tank (tanki) at the spring and took a pipe from this tank to the village abadi. The defendants are thus alleged to have diminished the quantity of water that flowed into the natural stream and thereby obstructed the irrigation facility of the plaintiffs. As a result of that act of the defendants, the vegetable crops of the plaintiffs are stated to have got damaged. The plaintiffs accordingly prayed for a permanent injunction restraining the defendants from causing obstruction in the flow of the stream by diminishing its water. Prayer was also made for the demolition of the water tank and pipe constructed by the defendants.

(3.) The suit was resisted by the defendants and they averred that the plaintiffs had no right to irrigate their fields from the stream. Plea was also taken that the construction of the tank and the pipe had been undertaken with the assistance of Block Development authorities and that the aforesaid construction had not resulted in any diminution of the water supply which flowed down the Stream.