SUNKA RAM Vs. ONKAR CHAND

JUDGEMENT

(1.) The present Appellants tiled a suit for declaration that residents of Tikas, Machhan, Tang, Rasehar, Uthra Gran have right to irrigate their lands through the water channel known as Nichruhal from the time immemorial and the Defendants and the residents of Tikas Dhaloon Khas, Rin, Patialkar, Karahpura and Phaloundi have no right in the water of said Kuhl. Plaintiffs' case as pleaded before the trial Court had been that the Plaintiffs have right to take water of Kuhl Nichruhal over the Kuhl Kanuhal by way of putting a Trangri (Culvert). According to the Plaintiffs, the plan filed with the plaint denoted two Kuhls by the words A, B, C, D, E, F and G, H, D, K, L respectively. It has been further pleaded that in the year 1947 the Defendants started demolition of Trangri at Point D which had been placed above the Kuhl and started interfering in the rights of irrigation held by the Plaintiffs. A Criminal Case under Section 107/151, Code of Criminal Procedure according to the Plaintiffs, was lodged against the Defendants, which was compromised and Trangri was again fixed by the Plaintiffs.

(2.) It has also been pleaded by the Plaintiffs that the Defendants filed a suit before the Collector under the Punjab Minor Canals Act, 1905 (hereinafter referred to as 'the Act'), in the year 1951 and in that suit, the present Plaintiffs raised an objection that the Collector had no jurisdiction under Section 43 of the aforesaid Act to entertain such a suit. According to the Plaintiffs, the said suit on 13.2.1961 was dismissed but then the present Defendants, who were Plaintiffs in that suit preferred, an appeal before the Deputy Commissioner, where the appeal was accepted and the suit was remanded. It has been further averred that after remand the suit was decreed by the Revenue Assistant (Collector) on 27.10.1966. The present Plaintiffs assailed that decree dated 27.10.1966 passed by the Revenue Assistant (Collector) before the Collector, exercising the powers of Commissioner under the Act, but the appeal of the Plaintiffs was disallowed vide judgment dated 30.7.1967 and the order passed by the Revenue Assistant was maintained.

(3.) In the present suit a declaration has been sought that the decisions given by the Revenue Assistant and Collector, as referred to above, were without jurisdiction and as such nullity and not binding upon the rights of the Plaintiffs. It has also been pleaded that decree for injunction passed under the Act could not be so done by the authorities.