AMAR SINGH Vs. KEHAR SINGH

JUDGEMENT

(1.) In this Regular Second Appeal under S. 32 of H. P. Courts Order, 1948 against the judgment and decree D/- 20/06/1984, by defendant Mehar Singh and others, the sole question for determination is:

(2.) Before I proceed to determine the aforesaid question, it would be appropriate to detail certain necessary facts leading to the instant appeal. Respondents are plaintiffs whereas appellants are defendants (shortly hereinafter referred to as plaintiffs and defendants). The plaintiffs filed a suit for permanent injunction restraining the defendants from taking the water from Kiar Khad to their newly constructed ghrats at point "A" through water channel indicated as "B" in the map annexed with the plaint, or from interfering with their rights to the use of the water. Plaintiffs assert the existence of their ghrat in khasra No. 56 and 55/1 situate in chak Kiar, Teh, Theog in two buildings. There are three chakis in two ghrats out of which one belongs to the defendant. Plaintiffs allege that said ghrats were in existence since time immemorial and were being run since then by the water from the aforesaid Kiar Khad. Plaintiffs further assert that about 8 or 9 years back, defendants constructed a new ghrat in khasra No. 21 at point "C" referred to in the map aforesaid. However, no interference in the flow of water was created by the defendant at that time, as they did not raise any objection. According to them, later on defendants interfered with the flow of water by construction of a separate channel to their newly constructed ghrat which resulted in the filing of the instant suit. The main ground alleged is that according to law and custom of the illaqua, the flow of water which serves the ghrats cannot be impeded or curtailed. The plaintiffs' right to take water from Kiar Khad to their ghrats is indefeasible and absolute, their ghrats being in existence since the time immemorial and lawfully constructed. They have been using the said ghrat as of right openly and peaceably for more than 50 years.

(3.) Defendants resisted and contested the suit. The existence of ghrats in two buildings and that of three chakis in khasra Nos. 55 and 56/1 was admitted by the defendants but they claimed that one chaki only belonged to Basant Singh plaintiff. The functioning of the said two ghrats since the time of their ancestors for the last more than 50 years was admitted. So far as the custom pleaded by the plaintiffs is concerned, the only objection raised was that particulars of the custom had not been pleaded by the plaintiff's. As regards the construction of the new ghrats, it was admitted that the building thereof was constructed as back as 9-10 years. Nothing has been contended by the defendants in their written statement with respect to the fact as to since when the new ghrat owned by them allegedly constructed afresh started functioning.