CHUNI LAL Vs. SUBHASH CHAND

JUDGEMENT

(1.) This appeal has been directed against the judgment and decree, dated 1.9.2000 passed by learned Addl. District Judge (I), Kangra at Dharamshala in Civil Appeal No. 31-K/1997 affirming judgment and decree, dated 5.5.1997, passed by learned Sub Judge 1st Class (I), Kangra in Civil Suit No. 356/1991.

(2.) The appellant was plaintiff and he had filed a suit with respect to land more specifically described in the plaint. It is the case of the plaintiff that he is owner in possession of the suit land as co-sharer. He has raised plinth by cutting some plants on the suit land about a year back. The respondents have nothing to do with the suit land and have no right to interfere in the ownership and possession of the appellant. The respondents have threatened to remove the plinth and dig a water channel (challa) to cause damage to the property of the appellant. In these circumstances, the suit was filed for declaration and permanent prohibitory injunction.

(3.) The respondents have contested the suit by filing written statement and have taken preliminary objections of maintainability, lack of cause of action, locus-standi, non-joinder of necessary parties and also that the suit is not maintainable on account of acts and conduct of the appellant. On merits, the respondents have pleaded that there is only a `challa' on northern and eastern side of Khasra No. 815, which emanates from Kandrehar kuhal and after passing and irrigating Khasra Nos. 814 and 813 irrigates the fields of the respondents in Khasra No. 810, which is being used by them as customary right of easement. The respondents have also pleaded easement by way of prescription and necessity. The respondents have no other source of irrigation for irrigating their land comprised in Khasra No. 810. It has been pleaded that `challa' is in existence from the time of predecessor-in-interest of the respondents. The existence of `challa' has been admitted by the appellant in his statement, dated 21.12.1991. He agreed that he will not stop flow of water by his proposed construction.