MOHINDER SINGH Vs. RAGHU NATH

JUDGEMENT

(1.) Challenge herein is to a judgment and decree dated 7.4.1995 rendered by the Subordinate Judge, II Class, Sonepat decreeing the suit of the plaintiff Raghu Nath who filed a suit for declaration and permanent injunction primarily challenging the order dated 16.1.1987 (Ex. P1). The case of the plaintiff was that he is owner in possession of land bearing khewat No. 45, Khata No. 71, Rectangle No. 32, Killa No. 16/20 and rectangle No. 33, Kilt No. 20/1 situated in the area of village Fatehpur, Tehsil and Distt. Sonepat. The plaintiff had got this land acquired by the Canal Authorities and had got sanctioned a watercourse on this land for irrigating his fields. Earlier Killa Nos.32/16/2 and 33/20/1 were owned by Bhagwana (defendants No. 3), who later died and was represented by his legal representatives Mohinder Singh Jai Bhagwan, Ishwar Singh and Azad Singh and some other so-shares. Defendants No. 3 in collusion with Canal Authorities field an application that he had be allowed to irrigate his fields comprised in Kill Nos. 33/11 and 20 from the water-course which exists on the land of the plaintiff, fl has further been his case that files of defendant No. 3 were always irrigated from another water-course and not from the water-course from which he irrigated his files. On the application of defendants No. 3, order Annexure P/1 dated 16.1.1987 was passed vide which the application of defendant No. 3 was accepted and he was allowed to share the water-course in dispute. In so far as defendants No. 1 and 2 are concerned, their names were deleted from the array of the plaint on the request of the plaintiff. The contesting defendant opposed the cause of plaintiff on various grounds inclusive of bar of civil court's jurisdiction. The pleas raised by them would reflected from the issues that came to be framed by the trial which are herein reproduced;

(2.) The trial resulted in the suit being decreed in favour of the plaintiff and against the defendants and aggrieved by the same the contested defendants filed an appeal which has since been dismissed. Thus present appeal.

(3.) Besides arguing on merits, learned counsel for the appellants vehemently contends that by virtue of provisions contained in Section 25 of the Haryana Canal and Drainage Act, 1974 (hereinafter referred to as the "Act of 1974), the jurisdiction of civil court has been specifically barred and yet order which came to be passed by the canal Authorities has been set aside. The issue pertaining to the jurisdiction of the civil Court has been wrongly decided, thus contends the counsel. With a view to appreciated the controversy based upon the contentions of learned counsel as noted above, it will be useful to give the necessary details culminating into order Ex. P1 which has since been set aside by the courts below. The reading of the order aforesaid would show that Bhagwana since deceased, made an application pleading therein that a scheme was framed under Section 17 of the Act of 1974 and the same was published under the Rules inviting objections and suggestions for which purpose the date was fixed as 16.1.1987. On the date aforesaid, the statements of the parties were recorded. Shri Bhagwana stated that he was owner of Killa No. 33/11-20 (the word "not" has been wrongly mentioned in the order Ex. P1) and a sanctioned water-course passes through killa Nos. 33/20 and 32/16. He requested that his area consisting of field No. 33/11/20 may be allocated on this sanctioned water-course D.E.F. He agreed to bear the cost of the water-course according to the share determined by the Canal Authorities. This prayer of Bhagwana was resisted on the plea that the applicant is irrigating his field from another water-course. The Canal Authorities after hearing the parties recorded the following decision.