SARAB LALL JHA Vs. UCHESHWAR JHA

JUDGEMENT

(1.) This second appeal by some of the defendants arises out of a suit for a declaration that the plaintiffs and other raiyats having lands west and north-west of Plot No. 822 in village Ranga, Police Station Baunsi, in the District of Bhagalpur, have exclusive right to irrigate their lands from the water in the aforesaid plot and the defendants and other persons having lands east and north-east of Plot No. 820 have no right to take water from Plot No. 822 for irrigating their aforesaid lands, for permanent injunction against the defendants in their personal as well as representative capacity restraining them from taking any water from Plot No. 822 and for damages. The suit was instituted under Order 1, Rule 8 of the Code of Civil Procedure and the plain-tiffs sued and the defendants were sued in representative capacity.

(2.) Both Plot Nos. 822 and 820 are Danrs, i.e., artificial water channels. They get water from a river which runs east to west. They are situate to the southern side of that river and run towards north. Plot No. 821 separates them and is recorded as rasta. The artificial channel running in Plot No. 822 is called Ranga Danr and the other running in Plot No. 820 is called Babu Danr. According to the case of the plaintiff-respondents, Ranga Danr is the main source of irrigation of their lands lying to the west and north-west of the Danr. From a very long period they alone have been taking water from the said Danr for irrigation of their aforesaid lands. The defendants or other persons holding land to the east and north-east of Babu Danr have been getting water for irrigation of their aforesaid lands from that Danr. They have never taken water from Ranga Danr. On 22nd of August, 1960, the defendants forcibly and with dishonest motive for causing wrongful loss to the plaintiff took water from Ranga Danr for irrigating their fields lying east and north-east of Babu Danr and thus they caused damage to the plaintiffs. In spite of the protest of the plaintiffs, the defendants were threatening to cause further damage by taking water from Ranga Danr. Hence the suit

(3.) The defence of the defendants which is relevant for this appeal is that it is not correct to say that only persons possessing lands to the west and north-west of Ranga Danr irrigate those lands from that Danr; rather the entire village gets water from that Danr for irrigating their other lands including those which are situate east and north-east of Babu Danr. Babu Danr in Plot No. 820 was constructed by the villagers of village Siradah with the permission of the landlord for irrigating lands in their village. They further claim fiat they have been irrigating their lands lying east and north-east of Babu Danr from Ranga Danr since 40 years without any obstruction from any quarter whatsoever. They also aver that the suit is not maintainable for defects of parties and other grounds.