SOBBA Vs. THAKUR THAMAN SINGH AND OTHERS

JUDGEMENT

(1.) JUDGEMENT This is an appeal from an order of remand passed by the learned Civil Judge of Aligarh in an appeal arising out of a suit for injunction and demolition.

(2.) BRIEFLY stated the case of the plaintiff was as follows : A certain plot of land and a well situate therein belonged to the plaintiff who was formerly a Zamindar and had after the enforcement of the U.P. Zamindar Abolition and Land Reforms Act become a Bhumidhar of the said plot. The well had four pulley and the plaintiff had been irrigating his field from the eastern pulleys. Another pulley of the well had been in the use of defendant No. 1 and yet another in the use of defendants Nos. 2 to 4. In or about 1946 the defendants obstructed the irrigation of plaintiffs field from the well. This led to the institution of a suit by the plaintiff against the defendant". That suit was decreed but, in spite of it, about a year prior to the institution of the present suit the defendants built a Chabutra on the well and fixed a Persian wheel there without the permission of the plaintiff. These acts of the defendants had the effect of obstructing the irrigation of the plaintiffs field from the well. The plaintiff accordingly filed, this suit for the removal of the Persian wheel and for the demolition of the Chabutra, as also for an injunction restraining the defendants from interfering with his right of irrigating his field The suit was contested by all the defendants. It is unnecessary to mention the defence in any detail and it is sufficient to say that the defendants denied the allegations of the plaintiff and pleaded that the plaintiff was not entitled to the reliefs claimed by him.

(3.) IT was contended by the learned counsel for the defendant-appellant that according to the case set out in the plaint all the defendants were joint trespassers and since even if a decree is passed against the appellant it will not be capable of being executed the suit has to be dismissed also against the appellant. It was further contended that a decree against the appellant in terms of the relief prayed for by the plaintiff would be inconsistent with the dismissal of the suit against the other defendants and as suit no decree can be passed against the appellant. Neither of those contentions appears to me to be sustainable. The questions, which these contentions raise have been discussed at length in the Division Bench case of Himanshudhar Singh v. Ram Hitkari AIR 1963 All 496 and it is therefore unnecessary for me to enter into a discussion of those questions. In the above quoted case it was held by this Court that a decree passed against a co-trespasser would be an effective decree as between him and the plaintiff even though the other co-trespassers ceased to be parties to the suit as a result of the suit having abated against them. The position, in my view, would not be different where instead of the suit having abated against the remaining co-trespassers it had been dismissed against them for default of prosecution.