RAM NATH Vs. BANSI LAL & OTHERS

JUDGEMENT

(1.) Instant Regular Second Appeal filed under Section 100 of the Code of Civil procedure is directed against the judgment and decree dated 31.3.2005, passed by learned Additional District Judge, Shimla, District Shimla, H.P., affirming the judgment and decree dated 8.12.2000, passed by learned Sub Judge Ist Class, Theog in Civil Suit No.543/1 of 1994.

(2.) The brief facts of the case are that the plaintiffappellant (hereinafter referred to as the 'plaintiff') filed suit for permanent prohibitory injunction restraining the defendants and their family members from interfering in the supply of water from two sources situated in Chak Snahoo. Plaintiff averred in the plaint that he is recorded owner in possession of land denoted by khasra Nos. 156/41, 163/41, 164/41, 39 and 40 in Chak Snahoo, Pargana Palana, Tehsil Theog, District Shimla, H.P., alongwith others, but in pursuance of family arrangement the said land is in his exclusive possession. It is also averred in the plaint that on khasra No.40 there was an old house and which was recently dismantled and a new house is under construction. There is the land of the State of H.P. comprised in khasra No.174/14, adjacent to the land of the plaintiff and below this land, there is Ghasni of defendant No.2 comprised in khasra No.27. Plaintiff further averred that there are two water sources in khasra No.174/14 and both the sources are at a distance of near about 2/3 metres from each other and water from these sources flow down towards khasra No.27. As per plaintiff, there are rocks and bushes on the boundary of khasra No.27 and khasra No.174/14. Earlier the water from these sources were tapped through khul upto khasra No.40, however, from the last more than 25 years the water was brought through alkhathin pipes laid through khul and as such, this right is being enjoyed as of right, openly, peacefully and without any interruption from the last more than six decades. Plaintiff further averred that in view of the above, defendants have no right to interfere in the enjoyment of such rights. Plaintiff has also averred in his plaint that defendants have even tried to disrupt the water supply on 17.5.199, compelling him to institute a case under Section 107 Cr.P.C against defendant No.3 and his wife. According to the plaintiff, cause of action accrued in his favour and against the defendants about two days back when defendants No.1, 3 and 4 tried to remove the pipes of the plaintiff and as such, he was constrained to file the suit.

(3.) Defendants, by way of filing joint written statement refuted the averments contained in the plaint. But perusal of the averments contained in the written statements suggests that the defendants admitted that there was an old house of the plaintiff over khasra No.40 and now new construction of the house is being raised. Defendants specifically denied that khasra No.174/14 is adjacent to the land of the plaintiff and stated that khasra No.174/14 is abutted to the land of defendants No.1 and 2 from the lower side, which is denoted by khasra No.27. Defendants also denied that two water sources exists on khasra No.174/14, rather claimed that water sources exists over khasra No.27. The defendants specifically denied that the plaintiff or his predecessor-in-interest ever used water from these sources and at present water is being taken through alkhathin pipes. Defendants also stated that a false case under Section 107 Cr.P.C was filed by the plaintiff since there was no disturbance of the water supply to him.