MANDAN Vs. DAYA CHAND

JUDGEMENT

(1.) This is a regular second appeal against a concurrent decision of two courts below. Mandan plaintiff-appellants filed a suit before the trial court against Daya Chand respondent with the allegation that the appellant is the owner of Khasra No. 105/13.18 in which no khal is running. It was further alleged that there is a approved Khal maintained by the Canal Authorities but the same does not run through the above-mentioned Khasra number. In the same sequence it was also alleged that the respondent was out to dig up a khal and forcibly cut the existing khal.The appellant, therefore, prayed for a permanent injunction restraining the respondent from digging any khal in the land of the appellant. The suit was contested by the respondent and the trial court after framing the necessary issues and considering the evidence produced by the parties, dismissed the suit of the appellant. The appellant preferred an appeal which was also dismissed by the Senior Subordinate Judge, Hissar, invested with enhanced appellate powers. The present is a regular second appeal in the aforesaid litigation.

(2.) The three points which had been embodied in the issues framed by the trial court are :- (a) whether the respondent is entitled to dig up a Khal from Khasra No. 105/13-18 which is owned by the appellant; (b) whether the disputed khal had been sanctioned by the Canal Authorities; and (c) whether the civil Court had no jurisdiction to entertain the suit in respect of the khal. The courts below decided all the three points in favour of the respondent. The learned counsel for the appellant has, however, urged that the findings of the courts below in respect of the khal and the right of the respondent to dig up a khal are erroneous. After hearing the learned counsel and persuing the record,I find that the contention is without force. In any case these are pure findings of fact which cannot be disturbed in the second appeal in this court. This apart, the finding that the khal had been sanctioned by the Canal Authorities also leads to the necessary corollary that no civil suit in respect of the dispute regarding the said khal would lie in view of the bar contained in section 25 of the Haryana Canal and Drainage Act, 1974. The jurisdiction of the civil court to entertain the suit has, therefore, been rightly ousted by both the Courts below and there is no reason to disturb that finding.

(3.) No other point arises for consideration in this appeal which is without force and is dismissed, but with no order as to costs.