DAYARAM Vs. DAULAJI

JUDGEMENT

(1.) THE facts necessary for disposal of the appeal are that Daulaji and Kesuram filed the present suit against Dayaram and subsequently joined one Fhatehalal as defendant no. 2. The case of the plaintiffs was that they are the owners of land Survey No. 135 admeasuring. 052 hectares of village Jessakhedi, and on the said land a well belonging to the plaintiffs situate. They further submitted that the defendant No. 1 Daulaji being a relation of the plaintiffs was permitted to draw water for the purposes of irrigation; but unfortunately, said Daulaji started asserting his rights and started permitting others to draw water. The plaintiffs therefore, submitted that the Court be pleased to declare that plaintiffs are the sole owners of the said well and the defendant No. 1 be restrained from interfering with the possession and drawing the water from the well. The defendant contested the suit on all possible grounds and submitted that the well was infact situate on the land belonging to the plaintiffs but each of the party has equal right in the property and in any case he is entitled to draw water because he has acquired right by prescription or in the alternative by easement. He further submits that he was not permitting others to draw water but in fact those third parties were drawing water in their independent rights.

(2.) AFTER hearing the parties, the suit against the defendant No. 1 was decreed, , being aggrieved by the said judgment and decree, the defendant No. 1 Dayaram took up the matter in appeal as the said appeal was also dismissed. The said defendant has filed this Second Appeal.

(3.) SHRI Mehta, learned counsel for the appellant submits that the Court below has recorded certain findings against the defendant/appellant without even considering the evidence and ignoring the other evidence available on the record and observing that particular question was not put to the plaintiff or his witnesses while infact the plaintiff and his witnesses were cross-examined on the material points.