JOGINDER SINGH JOGI Vs. SURJIT KAUR

JUDGEMENT

(1.) This revision petition filed under Sec. 115 of the Code of Civil Procedure is directed against the order dated 1.9.1980 passed by Sub Judge, Ist Class, Phillaur on an application moved by the petitioner for amendment of the decree passed in Civil Suit No.82 of 1972, decided on 2,3.1973.

(2.) The plaintiff -petitioner (for brevity, 'the plaintiff) had filed a suit for permanent mandatory injunction to the effect that defendant -respondent (for brevity, 'the defendant') be restrained from digging pits and excavating earth from field Nos. 23/2 and 3/1. Further directions were sought against the defendant to order her to fill up the pits which she had dug with the object of stopping the passage of the water channel from the well Rahawala to the plaintiff's land as described in the plaint situated in village Nawan Pind Naicha, Tehsil Phillaur.

(3.) In order to settle the controversy, the trial Court framed three issues. On the first two issues, the findings recorded by the trial Court went in favour of the plaintiff. On issue No.1, whether a water channel existed on the boundary (butt) between Khasra Nos.22/2, 23/3, 2/1 and 3/1 the trial Court returned the finding that the water channel existed on the boundary of aforementioned khasra numbers. For reaching the aforesaid finding, the trial court referred to an order passed by the Sub Divisional Officer (Civil), Phillaur wherein the Sub Divisional Officer (Civil), had held vide his order dated 11.1.1967 that Malkiat Singh, husband -attorney of the defendant had forcibly demolished the Khaal in existence and had diverted the flow of water to another direction and had directed the reconstruction of the Khaal as it existed before in conformity with the consolidation scheme. This order was challenged by Shri Malkiat Singh, husband -attorney of the defendant and also by the defendant herself in two separate suits. These judgments have been exhibited as Ex. P4, P3 and P7. The effect of these judgments was that both the suits were dismissed and restoration of the old khaal was ordered. The learned Sub Judge dealt with the aforementioned issues in the following words: