BAJRANG AND OTHERS Vs. CHATURBHUJ NARAYAN VAIRAGI

JUDGEMENT

(1.) This second appeal is at the instance of the defendants against whom the Court below have granted permanent injunction restraining them from digging any part of the field belonging to the plaintiff and taking canal water through the same for irrigating their fields.

(2.) The facts giving rise to the suit out of which this second appeal arises were that certain fields belonging to the defendants and the right of being irrigated from the irrigation canal under Distributory No. 12 and Minor No. 6. For taking water the defendants constructed a channel on the embankment of the field of the plaintiff. The channel in question undisputedly passed through the embankment in between Khasra Nos. 266/1 and 270 owned by the plaintiff. It was also not disputed that the aforesaid fields belonged to the plaintiff. It was also pointed out that the plaintiff owned Survey No. 265 also and had constructed a channel on his field for securing the flow of water for the field Khasra No. 268/1 which was on higher level. The case of the plaintiff was that the defendants had no right to dig any portion of the embankment of his fields and to utilise the channel for taking water from the canal towards their fields. It was also pointed out that there was already another course of taking water to the fields of the defendants and the act of the defendants in digging the embankment and flowing water was unauthorised causing irreparable recurring injury resulting in damage to the standing crops in his field. The Courts below concurrently found it as a fact that the defendants have no right to take water by having a channel on the embankment of the fields of the plaintiff. It was also found that the aforesaid act of the defendant did cause damage to the standing crops of the plaintiff and, accordingly, the defendants were restrained from doing so.

(3.) Since the controversy in between the parties has been decided by the concurrent findings recorded by the Courts below on the aforesaid questions of fact, the same were binding for the purpose of this second appeal. This appeal was, however, admitted for final hearing on the question of maintainability of the suit. The objection regarding tenability of the claim before the civil Court was based on the provisions of section 257, read with section 131 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as the Code). The argument was that since in the present suit the dispute about the course by which the cultivator in the defendant may avail himself of water was involved the subject-matter was triable by revenue Court under section 131 of the Code, and since the revenue Courts were competent to adjudicate and decide such a dispute, the jurisdiction of the civil Court was barred according to sub-section (1) of section 257 which provides that the jurisdiction of the civil Court will be barred in respect of such matters which can be tried and determined by the revenue officer according to the provisions of the Code.