MAHESHWARI PRASAD Vs. MUNNI LAL

JUDGEMENT

(1.) This is a plaintiff's appeal and is directed against an order of the lower appellate court whereby it dismissed the plaintiffs' suit for grant of a perpetual injunction restraining the defendants from interfering with the plaintiffs' right to draw water from the well in suit commonly known as 'Raja Kunwa' situate in Mohalla Thatharaee Bazar, Banda City within the Municipal Limits.

(2.) The plaintiffs' allegations were that the plaintiffs were the residents of the said Mohalla in Banda city and the well was the only well situated in the Mohalla and that the plaintiffs as well as their predecessors-in-interest had been drawing water from the said well. It was alleged that one month before the institution of the suit the private defendants declared that they would get the well filled up and raise constructions over it on the ground that they had obtained the well from the Government for making constructions over it. It was also asserted that from the time immemorial the residents of Mohalla were drawing water from the said well. Subsequently by an amendment of the plaint it was pleaded that the well had been constructed by Raja of Ajaigarh and dedicated for the benefit of the public.

(3.) The State of U. P. and the Municipal Board are arrayed as defendants but did not contest the suit. The private defendants in their written statement asserted that the well was situated in plot No. 5436 which was Nazul property and had been leased out to them for running an educational institution. It was also asserted that there was no right in the residents of Mohalla to draw the water from the well and in case there was such a right, it had been extinguished by time and it was pleaded that the water of the well was unfit for human consumption.