BAHADAR AND ORS Vs. PARTAP AND ANR

JUDGEMENT

(1.) The conspectus of the facts, relevant for a limited purpose of deciding the core controversy involved in the present appeal and emanating from the record, is that Partap and Suresh sons of Birma Ram respondent-plaintiffs (hereinafter to be referred as "the plaintiffs") filed the suit for a decree of permanent, mandatory and prohibitory injunction restraining Bahadar and others appellant-defendants (hereinafter to be referred as "the defendants") from creating any hurdle by filling earth etc. and from forcefully demolishing the watercourse existing on the northern boundary (dole) of the land depicted in the plaint.

(2.) The case set up by the plaintiffs, in brief, in so far as relevant, was that they and other co-sharers are irrigating their land as per arrangement (warabandi No. 52) on outlet No. RD 11890-L Banmandori Minor through the sanctioned watercourse existing on the northern side of the boundary of the indicated land. Thereafter, they are irrigating their land through this watercourse, vide warabandi at Serial No. 36 re-scheduled on 23.3.2004, but the defendants threatened to demolish it, without any legal right. The sanctioned watercourse in question is stated to be an old watercourse and is running since 22.10.1966. Concisely, according to the plaintiffs that they are irrigating their land through the sanctioned watercourse, as per arrangement (warabandi No. 36), but the defendants intend to disturb their irrigation/arrangement in this regard. On the basis of the aforesaid allegations, the plaintiffs filed the suit seeking a decree for permanent, mandatory and prohibitory injunction against the defendants, in the manner described here-in-above.

(3.) The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, locus standi of the plaintiffs and jurisdiction of Civil Court. The defendants claimed that the land mentioned in the plaint has never been irrigated from the watercourse in question, but was being irrigated from the pacca watercourse, existing towards its southern side, which was constructed by the H.S.M.I.T.C. after framing scheme, vide order dated 10.2.1977 passed by the Divisional Canal Officer. The case of the defendants further proceeds that as the dispute in question, pertaining to the sanctioned watercourse, falls under Sections 24 and 25 of the Haryana Canal and Drainage Act, 1974 (for short "the Act"), therefore, the jurisdiction of Civil Court is barred. According to the defendants, the watercourse, existing on the western side of the land bearing Khasra No. 80/8, 13 and 18, is their personal watercourse for irrigating their own land and this watercourse is connected with the sanctioned watercourse during consolidation. The watercourse in dispute, mentioned in the plaint by the plaintiffs, is not in existence at the spot and they (plaintiffs) have no legal right over the same. Succinctly, the defendants claimed that the disputed watercourse is their personal watercourse. They dug out the same as per their necessity and after its use demolished it. The plaintiffs have no concern with it. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.