SHEODAHIN Vs. RAM SWARUP AND

JUDGEMENT

(1.) THIS is a defendants Second Appeal in a suit for injunction restraining the defendants from flowing water through plot no. 323; and at the same time to allow the flow of water through plot no. 322: as also for recovery of Rs. 200/ as damages. It is alleged in the plaint that the plaintiffs were the bhumidhars in possession for more than 30 years of certain plots of land and that an embankment (Bandhan) existed to the east, south and also north thereof; that to the east of these plots was plot no. 322 which was in the form of a Nali; that the excess water from the Bhandan and other surrounding plots had always flowed through that Nali, which ran from south to north and then joined the Nala. It was stated by the plaintiffs that in the beginning of the last rainy season the defendants had illegally occupied plot no. 323 which was Gaon Sabha Land, and filled up the Nali of plot no. 322 and diverted the flow of water through the western portion of plot no. 323 adjoining the Bandhan. THIS resulted in the earth of the Bandhan being washed away causing damages to the plaintiffs or amounting to about Rs. 200/. The trial court framed four issues in the suit and found as follows: On issue No. 1: That it was not proved that plot no. 322 was a Nali and that on the other hand it was established that plot no. 322 was under cultivation since long and that the flow of water had been diverted through plot no. 323. On Issue No. 2: That the defendants had caused damage to the plaintiffs' Bandhan and that the plaintiff's were entitled to recover Rs. 200/. On Issue No. 3: That plot no. 322 was not a nali since long and that the suit was barred by time in respect of that plot. And On Issue No. 4: That the defendants had only recently changed the course of the flow of water through plot no. 323 and the plaintiffs were also entitled to injunction directing the defendants to carve out a channel for flowing the water through plot no. 323 adjacent to the land of plot no. 322 for which purpose it was necessary to demolish the embankment made by the defendants. The appellate Court affirmed the findings and the decree of the trial court. Shri Ram Surat Singh learned counsel for the defendants-appellants has urged before me that the trial court having found the plaintiffs' case with regard to plot no. 322 to be incorrect, and having further found that their claim in respect of the construction was not proved it had no jurisdiction to introduce a new case for the plaintiffs and grant them relief not prayed for in the plaint. The argument of Mr. R. S. Singh has no substance. The defendants had, by their action which was recent obstructed the flow of water from the plaintiff's land and caused damage to the plaintiff's embankment (Bandhan). The courts below have only tried to restore the position to the pre-existing state of affairs. A mere mistake in specifying the number of the plot through which the water from the plaintiffs land was flowing since long was not sufficient to disentitle them to the relief to which they were otherwise found emphased to. The decree of the courts below has only tried to right the wrong committed by the defendants. There is no merit in this second appeal. THIS second appeal accordingly failed and is dismissed with costs.