TEK RAM AND OTHERS Vs. KISHORI DEVI

JUDGEMENT

(1.) Unsuccessful plaintiffs have preferred the present appeal against judgment and decree dated 20.8.1988, passed by the learned Additional District Judge, Karnal, dismissing their appeal for permanent injunction for restraining the respondent-defendant from digging any khal (water course) in land comprising Khasra No.532, while upholding the judgment and decree dated 27.2.1988, passed by the learned Trial Court.

(2.) Brief facts of the matter in dispute are that the appellants-plaintiff are owners in possession of agricultural land comprising Rectangle No. 60, Khasra No. 12 and 13 situated at Village Samalkha vide jamabandi for the year 1980-81. Besides above, they are also co-sharer of Gair Mumkin Chah Pukhta, measuring 1 kanal 4 marlas situated in Rectangle No. 66, killa No. 26. The ancestors of the respondent-defendant namely Risala was having agricultural land comprising Rectangle No. 60, killa No. 19/1 and 19/2 adjoining to the above land of the appellants-plaintiff. There was a permanent passage in between the lands of the plaintiffs for ingress and egress of all the inhabitants of the locality comprising khasra No. 532.

(3.) The learned trial Court after framing necessary issues and recording evidence of both the sides, dismissed the suit vide judgment and decree dated 27.2.1988. The appellants before this Court also remained unsuccessful before the first Appellate Court, because as discussed above, their first appeal was also dismissed by the learned Additional District Judge, Karnal. Learned counsel for the appellants argued that the learned trial Court had re-casted Issues No.1A to 1C on 26.2.1988 i.e. one day prior to pronouncement of its judgment i.e. 27.2.1988, without affording an opportunity to the appellants to lead their evidence upon the same, prejudicial to their legal right of adducing fresh evidence. The learned trial Court ought to have appointed some local commissioner to take judicial notice of the existing state of affairs at the spot, before deciding the matter in dispute. The impugned judgments of both the Courts below are based on assumptions and presumptions and thus, are liable to be set aside. Both the learned Courts below were confused in differentiating the two water courses i.e. one which was in existence for taking the water from the well, before installation of tubewell and dug thereafter. The respondent had been using the water course for taking the water from well, but since now the well was not in working condition, so the same had no relevancy. Learned trial Court has erred in not appreciating the fact that the respondent had no right to dig any water course through the common passage situated in between the lands of the appellants, detrimental to their interest, because if she would be allowed to dig any water course in the common passage, in that event, the same would be of no use for them on account of leaking of water in it from the water course of the respondent. Even the appellants are irrigating their fields by putting pipes in the aforesaid passage and the respondent can also easily irrigate her fields by putting pipes in the like manner, instead of digging any permanent water course. Learned courts below also failed to appreciate that when no water course was carved out in the common passage by the Consolidation Authorities, in that eventuality, how the respondent had any right to dig the same in it. There was no evidence on record about existence of any water course in the passage comprising Khasra No. 532, but despite that the learned Courts below illegally dismissed the suit. The suit of the husband of the respondent-defendant was dismissed on 3.9.1985 and thus, their present suit was well within limitation. Hence, the findings of the learned trial Court in respect of Issue No.2 that the same was time barred, are liable to be reversed.