NANHU AND ANOTHER Vs. KRISHAN LAL AND OTHERS

JUDGEMENT

(1.) This is defendants' second appeal against whom suit for declaration and mandatory injunction was dismissed by the trial Court but was decreed in appeal.

(2.) The plaintiff-respondents filed a suit for declaration to the effect that the order dated 7th March, 1979, passed by the Divisional Canal Officer, Fatehabad Division, Hissar, and the order dated 16th July, 1979 passed by the Chief Canal Officer, Haryana confirming the said order dated 7th March, 1979 was illegal, void, without jurisdiction and as a consequential relief a decree for mandatory injunction directing that the watercourse running through the land belonging to the plaintiffs be demolished. The plaintiffs' case was that they jointly owned land in village Kharia which is irrigated through outlet RD No.22890 R. Chowdhry Minor; that the defendants Nos. 2 and 3 also owned land in village Kharia which is also irrigated through the said outlet. For purpose of irrigation of the said land of the defendants the water-course existed since the day the outlet was fixed. The defendants Nos. 2 and 3 at the time of the lining of the water-course of the outlet in connivance with landowners of the other Killa numbers got the existing water-course demolished and did not apply for the restoration or sanction of the said water-course and instead applied to the Divisional Canal Officer, demanding a totally new and irrelevant water-course in Killa No. 142/5, belonging to the plaintiffs. The Divisional Canal Officer vide his order dated 7th March, 1979 sanctioned water-course 'EG' along with the Eastern line in Killa No. 142/5 belonging to the plaintiffs. The said order was challenged to be without jurisdiction and not binding on the plaintiffs inter alia on the ground that the so- called Scheme was not published in the manner prescribed by section 17(2) of the Haryana Canal and Drainage Act in the village concerned and no notice of the implementation of the Scheme was issued as required by the mandatory provision of section 19 of the Act. The suit was contested by defendants Nos. 2 and 3 while defendant No. 1 was proceeded against ex parte. It was pleaded in the written statement that the Civil Court had got no jurisdiction to try the suit as the jurisdiction of the Civil Court is exclusively barred by the provisions of the Act. On merits, it was alleged that the water-course through the land comprised in Khasra No. 142/5 belonging to the plaintiffs was sanctioned by the Divisional Canal Officer vide his order dated 7th March, 1979 in due course of procedure and according to law. Thus the orders passed by the Divisional Canal Officer as well as by the Chief Canal Officer are legal, valid and binding on the parties. It was also found that in view of section 25 of the Canal Act, jurisdiction of the Civil Court was barred. Consequently, the plaintiffs' suit was dismissed. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that since it is not proved that publication of the Scheme had taken place in village Kharia, the procedure followed is not in accordance with law and therefore the orders dated 7th March, 1979 and 16th July, 1979 are illegal and on the basis of the same water-course cannot be established on the boundary of Killa No. 142/5. In view of this finding, the plaintiffs' suit was decreed. Dissatisfied with the same, defendants have filed the second appeal in this Court.

(3.) Learned counsel for the defendants contended that it has been wrongly held by the lower appellate Court that the publication of the Scheme did not take place in village Kharia. According to the learned counsel, Exhibit P-3 the notice issued and the report Exhibit P-7 on the back of it clearly proved that notice under section 18 of the Haryana Canal Act, was duly given to the landowners of the village Kharia. Thus argued the learned counsel, the finding is vitiated being against the evidence on record. In any case, it was further contended that the plaintiffs have failed to show that any prejudice was caused to them on that account.