BHARAT SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This second appeal arises out of judgment of the learned Senior Subordinate Judge, Karnal, dated May 31, 1965, whereby the judgment of the trial Court was reversed and the suit dismissed.

(2.) The plaintiffs now appellant Nos. 1 to 6 filed a suit for permanent injunction restraining the respondent Nos. 1 to 4 from using the water-course belonging to them and defendant Nos. 5 to 18 (now the remaining appellants and respondent Nos. 5 to 7). According to the allegations in the plaint, the plaintiffs and the said respondents were getting supply of canal water from R.D. 9900 Right Budha Khera Distributary through separate water-course before the consolidation of holdings in their village and even after consolidation, they had been provided separate water-course. On an application by respondent Nos. 1, 3 and 4, the Divisional Canal Officer, Karnal, vide his order dated August 30, 1959, under Section 20 of the Northern India Canal and Drainage Act, allowed them the supply of water through the water-course belonging to the plaintiffs. This order was claimed to be without jurisdiction and void on several grounds which are not material for the purpose of this appeal excepting the one that the respondents were not entitled to use this water-course as the first cost of the water-course had neither been assessed by the Divisional Canal Officer nor the defendants had paid their share of the same.

(3.) The suit was contested by the said defendants and the allegations made in the plaint controverted. As regards the compensation, it was pleaded that the plaintiffs ought to have raised this question before the Canal authorities and the same could not be entertained in the civil Court to decide this matter. A preliminary issue covering the jurisdiction was framed and decided against the defendants whereafter only one issue was framed on merits "whether the order in question is illegal, ultra vires and infructuous, as alleged." The trial Court, after recording evidence, held that no compensation as required in the provisions of Section 20 having been assessed or paid, the impugned order was void and void and without jurisdiction. Consequently, the decree for permanent injunction was passed in favour of the plaintiffs and against the contesting defendants. On appeal, the learned Senior Subordinate Judge upheld two new legal objections raised by the defendants that the suit had abated because of the death of Data Ram, one of the defendants, and that it was barred by time. On merits, the learned Senior Subordinate Judge held that the order was not void because of the non-determination of the first cost of the water-course as the same could be got done by the parties from the Canal authorities. The other objections raised by the plaintiffs which were not discussed by the trial Court were also discussed and rejected by the lower appellate Court and in the result, the decree of the trial Court was reserved and the suit dismissed.