BALBIR SINGH Vs. LAKSHMI AND ORS.

JUDGEMENT

(1.) THIS is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff -respondent for permanent injunction restraining the defendants to dig out a water course through his land as detailed in the suit was decreed partly and order dated 21.4.2004 passed by the Divisional Canal Officer was set aside.

(2.) BRIEFLY stated, the facts of the case are that the plaintiff is the owner in possession of land measuring 8 Kanals of Killa No. 1 and Killa No. 10 measuring 10 K -7 M of Rectangle No. 260. as per the averments, there has never been any water course on the northern side of Killa No. 1 of Rectangle No. 260 on outlet RD 20145/TL Sahu Minor in Village Kinala, Tehsil and District Hissar. The defendant No. 3 with the intention to harm the plaintiff filed an application before SDO, Water Services Sub Division, Uklana stating that he had given a water course between Killa No. 10 and 1 of Rectangle No. 260 and he be allowed to irrigate his land through this water course. SDO Uklana inspected the spot and examined the record and held that there was never any water course in the boundary line of killa No. 1 and 10 of Rectangle No. 260 on outlet RD 20145/TL Sahu Minor at village Kinala and rejected the application of defendant No. 3. He filed an appeal before the Divisional Canal Officer, Tohana who vide his order dated 21.4.2004 (Ext.P1) ordered to restore the water course.

(3.) UPON notice, defendant Nos. 1 and 2 did not appear despite service and therefore, they were proceeded against ex parte. Defendant No. 3 appeared and filed written statement alleging therein that there is a water course in Killa No. 260/1 on its northern side since the time of the forefathers of the defendant and the same is being used by the defendant for irrigating the land from the outlet RD No. 20145/TL Sahu minor. The water course was illegally dismantled by the plaintiff and the same was restored at site on 29.5.2004 with police help in execution of order dated 21.4.2004 passed by Divisional Canal Officer, Tohana. It was further alleged that the canal authorities have rightly restored the water course under Section 24 of the Canal Act on the basis of order dated 21.4.2004. It was also alleged that in fact the water course restored by Canal Authorities is a sanctioned one and comes in the definition of water course. All other allegations were denied and dismissal of the suit was prayed for.