PADAM SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This second appeal has been filed by the Plaintiffs against the concurrent judgments and decrees of the two Courts below dismissing their suit. The same was dismissed initially by the trial Court of Senior Sub-Judge, Solan vide judgment and decree dated 6.12.1991. The said judgment and decree has been affirmed in appeal taken by the Plaintiffs-Appellants before the learned District Judge, Solan vide judgment and decree dated 16.6.1992.

(2.) The case set up in the plaint was that there is a Khad known as Balyani Khad below village Sihardi. The same passes through the same village as well as the villages namely Sandrol, Lavi, Kiartoo and Jabli from one side and Basal, Pati Kalian, Pati Brahamanan, Dangri, Gara and Daryal on other side. Water of several small Nullahs/Choies falls in this Khad. A scheme for lifting the water was sanctioned by the Defendants-Respondents i.e. the State of Himachal Pradesh through the Collector, Solan and the Executive Engineer of the Irrigation and Public Health Department, Solan. Work was undertaken in hand for this purpose. The same gave rise to a suit at the instance of S/Shri Devi Singh and 20 other residents of village Daryali, Kothi Deora, Rohan, Dangri, Jabli and Pati Kalian, for permanent injunction restraining the three Defendants-Respondents from implementing the water lift scheme from the said Khad. It was pleaded that the Plaintiffs-Appellants were having riparian rights to irrigate their lands and run their Gharats (Water Mills) through the water of this Khad. These rights were based on the Wazib-ul-arz, Naksha Riwajatabpashi and Nakshajat Gharat. It was pleaded that in case the water lifting scheme is allowed to be implemented by the Respondents-Defendants, these rights of the Plaintiffs-Appellants would be adversely affected.

(3.) During the pendency of the suit, an application under Order 39, Rules 1 and 2, Code of Civil Procedure for temporary injunction at the instance of the Plaintiffs-Appellants was filed and the same was allowed by the trial Court i.e. the Senior Sub-Judge, Solan vide order dated 22.5.1986, whereby the Defendants-Respondents were restrained from lifting the water from the Balyani Khad, ad interim. On appeal having been taken by the Defendants-Respondents before the learned Additional District Judge, Solan, the matter appears to have been sorted out to some extent between the parties. It appears from the record that all the original Plaintiffs except the two who are the Appellants therein, came to a settlement with the Defendants-Respondents before the learned Additional District Judge, Solan. The present Plaintiffs-Appellants S/Shri Padam Singh and Rati Ram were not agreeable of any terms. This fact appears to have been noted by the learned Additional District Judge, Solan, but, however, in view of the statement of the learned Counsel for the Plaintiffs he dismissed the suit as a whole as having been withdrawn, by his order dated 29.4.1987.