KAMAL CHAND Vs. JAGIRO

JUDGEMENT

(1.) The plaintiff, one Smt. Jagiro's suit, for rendition of a decree for permanent prohibitory injunction, and, for mandatory injunction, vis-a-vis, the suit khasra number, stood decreed, by the learned trial Court, and, in an appeal carried therefrom, before the learned first appellate Court, by the aggrieved defendants, and, also upon, cross-appeal No.30-NL/13 of 2004, preferred therebefore hence by the plaintiff, rather sequelled, a pronouncement, hence dismissing the defendants' appeal, and, allowing, of, the plaintiff's cross appeal, (a) wherethrough, in consonance with Ex.P-1 (site plan), the defendants were directed to provide, through, the, suit khasra numbers, hence, space for enabling water traveling, through, the kuhal onto the land, of the plaintiff, hence for facilitating the plaintiff's land, being irrigated. The defendants being aggrieved therefrom, hence, institute the instant appeal before this Court.

(2.) Briefly stated the facts of the case are that the subject matter of the present list is a permanent katchi kuhal crossing through the land bearing Khasra Nos. 1036/115, 1039/117, 1040/121, comprised in Khewat/Khatauni No.24 min/25 min, situated in the area of village Makhnu, Majra, Pargana Dharampur, Tehsil Nalagarh, District Solan, H.P. for irrigation of the land of the plaintiff comprised in Khewat/Khatauni Nos. 27/28, bearing Khasra No. 1031/93, 1038/117, 118 and 119 total measuring 5 bighas as shown with red ink in Annexure PA. The case of the plaintiff is that the plaintiff is resident and Khewatdar of village Mahnumajra, and, had installed one tube well shown at point T in annexure PA about 20 years ago in village Makhnu Majra, for providing irrigation water to the Khewatdars. The water from the tube well is distributed to all the landowners for irrigation of their respective lands. The Irrigation and Public Health Department has further constructed some small water distribution tank at point C and water from point C used to cross through permanent kutcha channel/drain to irrigate the lands of the adjoining owners. The water passes through the lands of Kali Ram, Amin Chand and defendants and then reaches to the land of the plaintiff for the last about 28 years. The plaintiff used to irrigate her land measuring 5 bighas comprised in Khata/Khatauni No. 27/28, for the last 28 years peacefully, continuously, openly and uninterruptedly through kutcha channel over the land of the defendants. The plaintiff has acquired easementary right by way of prescription to irrigate her land through kutcha channel/kuhal over the land of the defendants and the defendant shave no right to interrupt or cause hindrance in smooth running of the water through disputed channel. The plaintiff is also having right to enter upon the land of the defendants in order to repair or remove blockage in the channel. The defendants used to irrigate their aforesaid land through Kutcha Kuhal which is passing over the land of other villagers. The defendants disturbed the kutcha channel/kuhal over their land by way of ploughing and refused the plaintiff to use the irrigation water from the disputed channel illegally. Hence the suit.

(3.) The defendants contested the suit and filed written statement to the plaint, wherein, they have taken preliminary objections, qua maintainability, cause of action, suppression of facts etc. On merits, the defendants averred that there was no kutcha kuhal through the land of the defendants for irrigation of land of the plaintiff. The Government of Himachal Pradesh had installed tube well about 8 years ago in village Makhnu Majra for irrigation to the Khewatdars of village Makhnu Majra but the Government of Himachal Pradesh had not prepared any plan for irrigation of the land of the inhabitants. There was no water channel for irrigation of the land nor the plaintiff had any right to pass channel of water from the fields of the defendants my making alignment of her own choice nor plaintiff had any right of easement. The water from tube well flowed to the fields of the inhabitants of the locality with the consent of the each other. The landowners were irrigating their fields per the season as licencees and the plaintiff cannot claim easementary right to irrigate her fields. The plaintiff being a relative of the defendants was allowed to irrigate suit land by taking water from one corner of the land upto her land purely as a concession. The plaintiff had no right to cross the water channel in the middle of the fields of the defendants. Khasra No.1031/93 measuring 1 bigha 03 biswas was far away from the land of defendants. The defendants themselves used to irrigate the aforesaid land through Kutcha channel/kuhal which was passing through the land of the other villager with their consent. The defendants had acquired right to irrigate their land per facility and water available and with the consent of the villagers. There is no easementary or customary right for getting the water through kutcha channel/kuhal for irrigating over the land of adjoining landowners.