SITA RAM Vs. FATINGAN

JUDGEMENT

(1.) This is plaintiff's second appeal against the judgment and decree passed by the 1st Additional Civil Judge Azamgarh, on 19-4-1967 reversing the judgment and decree passed by the Additional Munsif Azamgarh on 26-10-1964.

(2.) The suit of the plaintiff-appellant was for permanent injunction restraining the defendants-respondents from interfering with the plaintiff in irrigating his plots from the well situated in No. 1263 in village Sarai Lakhansi in the town of Mau Nath Bhanjan, and for recovery of Rupees 450/- as damages. The disputed well has been in existence for a very long time and there is a Paudur attached to the east of it. The plaintiff has got his plots Nos. 1268 1269 and 1270 to the north of the disputed well and his ease was that he had been irrigating those plots from the said well and he had acquired a right in that be half. He also alleged that Ins father had carried out certain repairs in the well and had constructed pucca pillars and a Teeth a on Pucca foundation about 15 years before the filing of the suit. Further, he claimed that the land occupied by paudar shown by letters Ka. Kha. Ga. Gha, in the site plan, given at the fool of the plaint which was appurtenant to the well would be deemed to have been settled with the plaintiff under Section 9 of U. P Act, 1 of 1951. It was alleged that the defendants had no right to interfere with the plaintiff in the exercise of the said right but demolished the pillars and Teetha on 25-6-61. He lodged a report at the police station and rebuilt the pillars but the defendants again demolished the same and also obstructed the plaintiff in the use of the well for irrigating his plots and thereby caused him a damage of Rs. 50/-. Subsequent to the filing of the suit it was claimed that because, of the obstruction by the defendants the plaintiff could not irrigate his brinjal crop as a result of which he suffered a considerable loss but he confined his claim to Rupees 400/-. On these allegations the plaintiff prayed for permanent injunction and recovery of Rs. 450/-, as damages.

(3.) Some of the defendants admitted the plaintiffs case while the rest contested it. Their defence was that at one time the disputed well was being used for irrigating the fields lying to the south and west of the well; but, since for over 20 years before the filing of the suit those fields had. been converted into Ahadi, the use of the well for irrigation had been totally stopped and the Paudar had become obsolete and it was filled up by the residents of that locality. It was further pleaded that the platform of the well was repaired by the residents of that locality by raising subscription, tt was denied that the plaintiff ever irrigated his plots from the disputed we'll or that he had acquired any right to do so. His claim for damages also was denied. It was averred that the plaintiff had a well in his plot No. 1272 on which he had installed a persian wheel and be had been irrigating his plots from that well.