GAURI SHANKAR Vs. SMT. HARBIN KAUR AND ANOTHER

JUDGEMENT

(1.) THIS is a defendant's appeal from the Judgment of the learned District Judge who has affirmed the decree passed by the learned Senior Subordinate Judge, Dharamsala, in favour of the plaintiff -respondent Harbin Kaur.

(2.) THE dispute is concerned with water connections in two houses which though adjacent are some distance apart from each other in Upper Dharamsala. The house called 'Bryn' was owned at one time by Fereze Din who got water connection for it from the main pipe line of the Municipal Committee, Dharamsala in Mcleod Ganj in the year 1927. The owner had to meet the expense for this private water line from the main connection at Mcleod Ganj. 'Bryn' is situated at a high level from Mcleod Ganj and the distance between the water main in Mcleod Ganj and 'Bryn' is about half a mile. Somewhere down below nearer to Mcleod Ganj is the house 'Kapurthala Cottage' and is midway between 'Bryn' and Mcleod Ganj. 'Kapurthala Cottage' was at one time owned by Mr. Switzer and his attempts to obtain water connection from the private pipe line which had been installed at the expense of Feroze Din did not prove a success at first. 'Bryn' was transferred by Feroze Din in 1939 to his son Mehraj Din who also purchased 'Kapurthala Cottage from Switzer in 1947. Thus the ownership of the two houses vested in Mehraj Din since 1947, and he hiving migrated to Pakistan after the partition both these properties came under the Custodian. Harbin Kaur eventually acquired 'Kapurthala Cottage' while the defendant -appellant Gauri Shankar purchased 'Bryn'.

(3.) GAURI Shakar, who had acquired proprietary rights in 'Bryn' did not feel satisfied with the pipe line also serving the other houses between Mcleod Ganj and 'Kapurthala Cottage' and filed a suit against the Municipal Committee, Dharamsala on 21st of June, 1960 to have it declared that he was the sole owner of the pipe line and, that the Committee could not supply the water to 'Kapurthala Cottage. Harbin Kaur, the owner of 'Kapurthala Cottage' then applied to the Court under the provisions of Order 1, rule 10 of the Code of Civil Procedure that the dispute was between her and Gauri Shankar and that she should be impleaded a party. This application was opposed by Gauri Shankar and eventually a compromise was reached according to with which Harbin Kaur was directed to seek her remedy by a separate suit. It is in these circumstances that Harbin Kaur has brought the present suit for a declaration that 'Kapurthala Cottage' owned by her is entitled as in the past to receive the water supply from the main line which runs from Mcleod Ganj to 'Bryn'. Gauri Shankar, the first defendant, has been further asked to be restrained by permanent injunction from interfering with her right. The second defendant in the suit is Municipal Committee, Dharamsala. Gauri Shankar pleaded that the pipe line was originally installed by Feroze Din, the owner of 'Bryn' and the ownership of 'Bryn' and 'Kapurthala Cottage' later coalescing into the same hands did not destroy the exclusive user of the pipe line by the owner of Bryn'. On the pleadings of the parties, a number of issues were framed but the principal controversy is centred on the second issue which is to this effect: