ZALAM SINGH Vs. SHIV RAM

JUDGEMENT

(1.) This is plaintiffs second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 27.5.1993, passed by learned Additional District Judge, Kangra Division at Dharamshala, whereby the judgment and decree passed by the learned Sub Judge(l) Nurpur in Civil suit No.240 of 1985 has been set aside.

(2.) Brief facts - leading to the presentation of this appeal are that the appellant -plaintiff (hereafter referred to as the plaintiff), instituted a suit for declaration to the effect that the respondent - defendants (hereafter referred to as the defendants) have no right to obstruct the natural flow of water in their fields at points A to B (as shown in the site plan filed with the plaint) situated in Tika Kandi Mauza Bhugnara, Tehsil Nurpur District Kangra or to put up any Danga at point A to B to cause nuisance by blocking the water, which is likely to cause damage to the property of the plaintiff with the consequential relief of permanent injunction, restraining the defendants from causing any blockade or putting any obstruction in the natural flow of water through their fields between points A to B or at any other point in their fields together with a mandatory injunction for removal of the obstruction put up in the shape of Danga by the defendants at point A to B. It was averred in the plaint that the Abadis and the lands of the parties are situated in Village Kandi, as shown in the site plan filed with the plaint. The rain water of the Abadis flows from the lands of the defendants since time immemorial, prior to the parties settled in the said village. The Abadis of the plaintiff and others are at a higher level and the natural flow of rain water is towards the fields of the defendants. The defendants have no right to obstruct such flow, however, they put up a Danga at point A and B of the site plan without any right to do so and, thereby obstructed the natural flow of water. The matter was reported to the Gram Panchayat, which after enquiries, directed the defendants to allow the natural free flow of rain water through their fields and not to put up any obstruction thereto and also further directed the removal of the obstruction already put up. However, the defendants failed to comply. Plaintiffs served them with a registered legal notice but to no avail. Hence the suit.

(3.) The defendants contested the claim of the plaintiff. They took preliminary objection in their written statement that the site plan is not correct and is contrary to the spot position. On merits, the right of flow of natural water through the fields of the defendants has been denied and it has been claimed that in case such water is allowed to flow through their fields, that would cause damage to the fields. It is also claimed that the plaintiff after collecting the entire water wants to channelise and throw it into the fields of the defendants, which he has no right to do. Hence, the claim has been denied.