SURINDER SINGH Vs. CORAM

JUDGEMENT

(1.) The plaintiffs' suit for rendition of a decree, for permanent prohibitory injunction besides for rendition of a decree, for mandatory injunction, stood decreed by the learned trial Court. In an appeal carried therefrom, before the learned First Appellate Court, by the Whether reporters of the local papers may be allowed to see the judgment? defendant, the latter Court allowed his appeal besides obviously reversed the trial Court's judgment and decree.

(2.) Briefly stated the facts of the case are that the plaintiff is owner in possession of land comprised in Khasra Nos. 39,40, 106 and 107 in Khatauni No. 2 min/3 min as per misal Hakiyat of Mauza Malandi, Pargana Chhabishi, Tehsil Kumarsain, District Shimla . H.P.It is averred that the aforesaid suit land is irrigated land and is shown as Kiar Doem in the Missal Hakiyat and it is irrigated from Danal Nullah Kuhal from time immemorial i.e. form the time of the forefathers of the plaintiff. Besides this, the plaintiff has developed khasra No.107 as an apple orchard and there is plantation of more than 25 years in age and the plants are at a fruit bearing stage since long. There is Mauza Danal Hadbast No.113 on the upper side of mauza Malandi. Both these Chaks are contiguous and both are sloppy. On the southern side of the land of the plaintiff in mauza Danal, there situates a spring comprised in Khasra No.750 and just near to the . said Bowari a tiny stream (rivulet) which falls in Khasra No.760 also joins and thereafter it becomes Danal Nullah and the said nullah has been shown in revenue papers by Khasra No.741 in mauza Danal, the water of the Bowri comprised in Khasra No.750, flows down in natural way and in defined direction without any obstruction from anyone towards mauza Malandi in which the land of the plaintiff is situated and there is another tiny rivulet flowing from eastern side also joins the above said Danal nullah which has been shown by khasra No.733 in Aks Latha of mauza Danal. The water of both the rivulets flows by the side of the land of the plaintiff and there is a permanent kuhal constructed from time immemorial from point A to B ( as shown in attached site plan) to irrigate Khasra No.39 and another Kuhal from point C to D has been constructed to irrigate the land and plantation thereon comprised in Khasra No.107 in mauza Malandi.

(3.) The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections of maintainability, cause of action and estoppel. On merits, it is alleged by the defendant that the defendant and other general public as well as the persons having theirs lands by the side of the nullah in question are natural and riparian users of the water from time immemorial in the area and no such Kuhal has been constructed by the plaintiff from point C to D as alleged nor the plaintiff is irrigating this land from the last 45 years from nullah in question, as alleged.As per defendant, the land of the plaintiff is barren at the spot and the plaintiff has recently planted apple plants on it. The plaintiff was not in exclusive use of the water in question, as alleged. In fact, earlier there was plenty of water and with the passage of time and continuous dry weather conditions, the flow of water has been diminished. But the plaintiff is trying to cook up a story of the user of water exclusively by him just to get the entire water to the exclusion of other owners of the land in the nearby. It is further alleged that the nautor land was sanctioned to the defendant in the year 1968-69 and thereafter crops were in that land upto the year 12-13 continuously and the apple plants are in the age of 18-25 years or so. It is further alleged that the plaintiff has nothing to do with the encroachment of Govt. Land by the defendant. The defendant has denied that he has laid the pipe of one inch dia but claimed that the pipe is only for half inch dia and moreover at least five other persons have laid down the pipes in the same source for their personal use. The defendant has further alleged that the plaintiff has started residing at the present place for the last about 15 years only and he never irrigated his land through the water source in question for he objected to the laying of the pipe and has chosen to file the suit. Lastly, it is alleged that plaintiff intends to deprive the others from their right to use the water with the help of Court.