CHHEDDU SINGH Vs. KEWAL

JUDGEMENT

(1.) This is a plaintiff's second appeal against the concurrent decisions of the courts below dismissing his suit for a mandatory injunction requiring the defendants clean and open up a well on their own land so that the plaintiff can take water for the irrigation of his fields. The plaintiff claimed a right of easement. He alleged that he had been using this well for watering his fields for a long time, but the defendants recently had filled it up with earth and thus deprived him of its use. The defendants contested the suit and denied that the plain tiff had any right of easement. They admitted that the plaintiff had been permitted to draw water from this well upto 15 years prior to the suit, but the well had been abandoned, fallen into decay, and had dried up. They also alleged that the suit was mala fide and that the plain tiff had filed it not because he needed the water but to feed his grudge against the defendants with whom he was on bad terms.

(2.) The trial court did not give any finding that the plaintiff had established a continuous right to draw water from the well over 20 years but preferred to dismiss this claim under Expl. II to Section 15 of the Easements Act. It found that the well had fallen into decay and the plaintiff not having objected to this must be deemed to have acquiesced in the obstruction placed against the enjoyment of his right. Accordingly it dismissed the suit. In appeal the learned Civil Judge of Aligarh assumed, for reasons which are inadequate, that there was little controversy over the plaintiffs easementary right but that he must be deemed to have abandoned it when he took no action after the well had fallen into decay. He dismissed the appeal of the plaintiff who has now come to this Court in second appeal.

(3.) I have heard Mr. P. N. Bakshi, learned counsel for the appellant at considerable length, but I am of the opinion that the plaintiff is not entitled to any relief. Both the courts have found that after the well had fallen into decay, the plaintiff did nothing for at least 3 years. This alone shows that the plaintiff's allegation that he needs the water from this well for irrigating his fields is incorrect. It is inconceivable that a cultivator deprived of the source of his water supply would sit still for three seasons. It is notorious that water is one of the most fruitful causes of quarrels between villagers, but in this case the plaintiff wants the court to believe that the opening up of this well is vital for his needs though he had no use for it for the last three years. The courts were right in believing that the plaintiff slept over his rights, if any, because he had other sources of water supply including the village tube well constructed by the Government. The relief of mandatory injunction is discretionary and cannot be granted if the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court -- Section 56(j) of the Specific Relief Act. I think the plaintiff's conduct disentitles him to any relief. Mr. P. N. Bakshi was unable to give any explanation why the plaintiff had taken no steps to have the well reopened or had not filed, this suit three years ago.