SURINDER SINGH Vs. GOVERDHAN DASS

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 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. The said Kuhal (as shown in attached site plan) from point C to D was constructed by the plaintiff in the year 1975 and since then the plaintiff has been using the water of Danal Nullah and its rivulets for such irrigation continuously and without any interruption from one either in Chak Danal or in Chak Malandi, as it is the plaintiff only, who is in the use of said water exclusively. The water in said nullah which originates from Khasra No. 760 is not plenty but in dry weather it reaches upto the land of the plaintiff just about an inch which is hardly sufficient for irrigating the land of the plaintiff. It is further alleged that defendant has been shown to be owner in possession of Khasra No. 740 along with his brother in mauza Danal but in fact this land is in exclusive possession of the defendant as the same was allotted to him in family settlement. The land in the possession of the defendant is not ancestral property but the same was allotted to the father of the defendant by the government of H. P. under Nautor scheme. The defendant or his predecessor never cultivated this land but the defendant straightway planted apple trees thereon. Not only this, the defendant has also encroached upon some government land adjoining to his nautor land which is shown as Khasra No. 739 measuring 0-31-75 hectare. In the month of June, 2002, the defendant without any legal and customary rights laid Alkathine pipe of 1 inch dia from point E to point F and diverted the water of nullah aforesaid just from the point adjacent to khasra No. 750 in Chak Danal and due to this, the defendant has diverted the natural source of water and diminished the flow of the water in the nullah which has ultimately affected the right of the plaintiff to use the water of Danal nullah for irrigation purpose. This has been done by the defendant without any permission or consent of the plaintiff and the defendant has no right to do so. The plaintiff asked the defendant to remove the pipe but the defendant is not ready and willing to do so. This has caused substantial damage to the plaintiff because not sufficient quantity of water is left in the Danal Nullah. The right of the plaintiff to use the water of Danal Nullah from point A to B and C to D in Khasra Nos. 39, 40,106 and 107 matured by way of customary easement exclusively. The right of the plaintiff has been recognized by the people of the are as the plaintiff and his forefathers have been exercising the same from time immemorial. Accordingly, the plaintiff has filed the suit with prayer to restrain, the defendant from taking or diverting the water in any quantity by laying pipe of any quality or kind, artificial or otherwise or by digging open Kuhal for any purpose from any point situated in Khasra Nos. 760, 750 and 741 which is entirely known as Danal nullah in mauza Danal and for mandatory injunction directly the defendant to remove the alkathene pipe or any other pipe from point E to F or any other type in Danal nullah upto the land of the plaintiff.

(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.