DIWAN SINGH Vs. RUPLA AND OTHERS

JUDGEMENT

(1.) The plaintiff has come up in regular second appeal against the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and dismissing the suit for permanent injunction restraining the defendant-respondents from obstructing the plaintiff from taking water through channel over Killa No.205. The facts:

(2.) The plaintiff sought permanent injunction on the ground that during consolidation of holdings in village Shermalpur in the year 1961-62, a water channel of the width of two karams for running water from North West corner of Killa No38/10 towards the South-West corner of Killa No.47/i was, approved; that the aforesaid water channel, which was provided in the Scheme, passed along Killa Nos.11/2, 3, 4 and 5 owned by Chandgi defendant No.3 and Killa Nos.20 and 21 owned by defendants No.1 and 2, namely, Rupla and Sundra; that northern part of Killa No.205 had been dug out for use as a 'Khal' but its southern part had not been put into use although defendants No.1 and 2 had dug out a part of it adjoining Killa No.21 for their use; that the plaintiff owns a tube well installed in Killa No38/11/1 from which he intended to take water to his other fields lying towards the South and the fields of the defendants and that the defendants obstructed digging of the water channel without any rhyme or reason and this caused loss to him.

(3.) The defendants took preliminary objection that the suit was bad for misjoinder of parties and causes of action as defendant No.1 had nothing in common with defendant No.3; that land comprised in Khasra No.205 was owned by the Gram Panchayat and, therefore, the Gram Panchayat was a necessary party, that defendants No.1 and 2 were in possession of part of khasra No.205 where they had sown wheat/sugarcane crops and, thus, suit for permanent injunction was not maintainable and that the suit had not been properly valued for purposes of Court fee and jurisdiction. On facts, they pleaded that no water channel was provided in the scheme of wells approved at the time of Consolidation of Holdings, because the scheme had nothing to do with the irrigation between private owners; that the general scheme of irrigation provided for Government tube wells; that no part of khasra No.205 had been dug out much less that the plaintiff had any right to dig 'khal' alongwith the land belonging to them; that the land comprised in rectangle No33 owned by the plaintiff was being irrigated by Chah Darariya Wala and the land forming part of rectangle No.47 situated in the South where the plaintiff wanted to take water by means of 'khal' had irrigation facilities from Bhatianwala well, which was jointly owned by the plaintiff.