DIWAN DURAG SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS is a plaintiffs' appeal against the dismissal of their suit for a declaration that they have a right to divert sufficient water of a nala through artificial channels by constructing temporary dams across the nala to irrigate some 60 acres of their land, for a permanent injunction restraining the defendants from doing any act calculated to diminish the quantity of water thus required and for Rs. 4,000/- as damages for the loss caused to them by the wrongful interference of the defendants in the year 1963-64.

(2.) IT is common ground that the plaintiffs were proprietors of village Zinda where they held 60 acres of sir and khudkast lands as detailed in paragraph 1 of the plaint. These lands are now held in Bhumiswami rights. Through the village area courses from south to north a nala called Belia Nala. It is not now disputed that at point EFGH, the State Government constructed in the year 1950-51 a regulator across the nala in pursuance of a scheme for providing irrigation under small projects. By means of this regulator, water used to be impounded towards the close of the rainy season by blocking the gates with wooden planks and earth. Admittedly, the plaintiffs have not used the water of this nala for irrigating their lands from 1963-64.

(3.) THE plaintiffs' case, shortly stated, was this. For the last 75 years, the plaintiffs and their ancestors have been putting up every year a kacha dam across the nala at point JKLM and then taking water of the nala through the artificial channel knop to their land described in para. 1 and irrigating it. In this way, they had acquired a right to use the water of the nala in that manner by prescription or lost grant. But, for the first time in December, 1963, the defendants fully closed the gates of the regulator down below with the result that the impounded water rose in level and prevented construction of the kacha dam or use of water for irrigation through the channel KNOP. According to the plaintiffs, they suffered on this account a loss of Rs. 4,000/ in the year 1963-64. On the basis of these averments, the plaintiffs claimed the various reliefs indicated in the opening paragraph.