BABU RAM Vs. LIL CHAND AND OTHERS

JUDGEMENT

(1.) This is the defendants appeal against the judgment and decree dated 31-10-1989 of the Additional District Judge, Sirmour Division at Nahan affirming the judgment and decree dated 29-7-1988 of the Sub-Judge, Nahan, decreeing the suit of the respondents-plaintiffs for permanent injunction thereby restraining the defendant-appellant from taking water of the khala known as Gularwala or Kala Khala in any manner and thereby deprived the defendant from the use and enjoyment of the water from the said Khala for the purpose of irrigation of his land.

(2.) The plaintiffs own about 22 bighas of land including the land comprising Khasra No. 22 in village Makarwali, Tehsil Nahan. There is a water source in the Government land known as Kala Khala or Gularwala Khala. The plaintiffs are using and enjoying the water from the said Khala for the purpose of irrigation of their land continuously for the last more than 30 years. For the purpose of irrigation, the plaintiffs have constructed a pucca tank in their land. The water from this Khala is hardly sufficient to cater to the needs of the plaintiffs. The plaintiffs have averred that by virtue of their continuous use and enjoyment of the water from the said khala for the last more than 30 years without any hindrance and obstruction have derived an easementary right by way of prescription. The defendant No. 1 - appellant purchased 3 bighas 13 biswas of land comprising of khasra number 20 from one Shri Prem Singh in the year 1972. The land was purchased by the defendant No. 1 was banjar kadim. It was never brought under cultivation nor the same was being irrigated. The predecessor-in-interest of the defendant No. 1 never enjoyed irrigation facility from the water source of the khala and as such, he could not have passed any right of use of the said water to the defendant No. 1. A suit for permanent injunction was filed by the defendant No. 1 against the predecessor-in-interest of the present plaintiffs being the suit No. 16/1 of 1975 wherein he claimed a right to use the kuhal known as Kala Khala or Gularwafla Khala through the kuhal of the plaintiffs. The said suit of defendant No. 1 was dismissed on 1-3-1977 wherein it was held that the defendant No. 1 had no right to use the water from the said kuhal for the purpose of irrigation of his land. The defendant No. 1, after the dismissal of his earlier suit started harassing the plaintiffs and their predecessor by making various application to different authorities in order to usurp the water of the said khala by one way or the other. An application made to the Tehsildar was also decided in favour of the plaintiffs on 14-6-1979. The defendant No. 1 in order to achieve his object in collusion with the Pardhan of the Gram Panchayat Bankala has started threatening the plaintiffs to take water from the said khala forcibly through another kuhal and for this purpose the defendant No. 1 has also constructed a new kuhal. On the matter being taken up with the police by the plaintiffs, the defendant No. 1 was not allowed to carry the water from the said khaia through the kuhal constructed by him. in claiming relief of permanent injunction, the plaintiffs have averred that the defendant is still continuing to interfere with the rights of the plaintiffs to take and enjoy water of khala for the purpose of irrigation of their land.

(3.) It will not be out of place to mention here that on an earlier occasion, a similar suit was filed by the present plaintiffs against the defendants number 1 and 2. The said suit was decreed by the Sub Judge, Nahan. However, on appeal having been carried before the District Judge, Nahan, the case was remanded with a direction to the plaintiffs to implead the State of Himachal Pradesh as a party. Since a suit against the State could not be maintained without service of notice under Sec. 80, Code of Civil Procedure, the Sub Judge, Nahan after the remand of the case to him by the first appellate Court, ordered the return of the plaint to the plaintiffs for refiling of the suit after complying with the provisions of Sec. 80, Code of Civil Procedure. The plaintiffs thereafter served the requisite notice on the State defendant No. 3 and thereafter filed the suit on 31-8-1987 out of which the present regular second appeal has arisen.