MAHADEO GIR Vs. LALITA DEVI

JUDGEMENT

(1.) This second appeal has been preferred by plaintiffs who succeeded in the trial Court, but have lost in the lower appellate Court

(2.) The suit was instituted by the plaintiffs for a declaration that they had a customary right of irrigation of certain lands detailed in paragraph 9 of the plaint from a tank situated in village Eraitpur recorded in the revisional survey record of rights as plot No. 3149 appertaining to Gairmazrua khata No. 203 and having an area ol 7 bighas, 18 kathas and 18 dhurs. The plaintiffs alleged that they had been exercising such a right of irrigation from the water of this tank from time immemorial, without interruption, openly, peaceably and as of right for several 20 years and thus acquired a customary right of irrigation which was also recognised in the Fard Abpashi (Ext. 4) prepared during the revisional surevy operation alongwith usual village notes. The relevant entry in the fard Abpashi (Ext. 4) upon which the plaintiffs relied for their case, is to be found in the 7th column of the 9th serial No. of the document and the same bad been correctly quoted by the lower appellate Court in paragraph 23 of its judgment. In substance the entry is to the effect that paddy among Aghani crops and barley, wheat and grain among Rabbi crops ot Badhar Gehuana and Ghaur ke Kanhi, appioximate-!y 30 acres in area are irrigated from the water of this tank. In Column 8 the entry is to the effect that the wafer from the tank in question flowing into pyne No. 3012 towards the south and pyne No, 2643 towards the north-west is taken into the tenant's fields by digging annas in the pyne at the appropriate place by means of Daurf and Daun without the Malik's permission or paying any lagan to him for the purpose.

(3.) The right thus claimed by the plaintiffs was resisted by the defendant who claimed to be owner of the tank in her capacity as the lessee of the ex-landlords since 1948, and she denied that the plaintiffs or any of the villagers had ever exercised such a right of irrigation from her tank, a substantial portion of which has been in her cultivating possession and in other portions of which she has been rearing fish and singhara. With regard to the rights mentioned in Fard Apbashi (Ext, 4) the case of the defendant was firstly that the entry was fraudulent, collusive and forged and secondly that it did not record any right which the plaintiffs sought to claim in the present suit.