SYAMA DEVI Vs. BHUNESHER MAHTON @ JAGDEO MAHTON

JUDGEMENT

(1.) Both the Second Appeals have been filed by the appellants against the common judgment and decree dated 18.2.1984 passed by the learned 3rd Additional Subordinate Judge, Gaya in Title Appeal Nos. 13 of 1983/165 of 1967 and Title Appeal Nos. 166 of 1967/12 of 1983 whereby the learned lower appellate court dismissed both the appeals and confirmed the judgment and decree dated 31.8.1967 passed by the learned Execution Munsif, Gaya in Title Suit Nos. 4 of 1967/68 of 1963 and Title Suit Nos. 3 of 1967/133 of 1960. The present appellants filed Title Suit No. 133 of 1960 praying for declaration that the defendants have no right to store water on survey plot nos. 812, 643, 649, 745, 651 and 768 or to damage the paddy crops grown by the plaintiffs on the said plots and further for removal of the bundh put across survey plot no. 657 and new dhonga put in survey plot no. 641. The said relief was claimed on the basis that the plaintiffs are the owners of the aforesaid property but the defendants with the assistance of their friends and associates of the village have taken out the tar dhonga into the west of survey plot no. 655, filled it up and have demolished a portion of genra and have put a bundh, as a result of which the flow of water has been changed. They have put a new dhonga in plot no. 641 in spite of protest of the plaintiffs. Because of this illegal act of the defendants, the water coming from the hills flows into survey plot nos. 655, 812, 643 and 768 and is stored there turning the aforesaid plots into reservoir of water, as a result of which the crops of the plaintiffs are damaged. The defendants have no right to use the land of the plaintiffs as reservoir of water for their irrigation purpose.

(2.) The defendants filed contesting written statement alleging that they are using the water since time immemorial and more than forty years. During the pendency of this suit filed by the present appellants being Title Suit No. 133 of 1960 the defendants filed Title Suit No. 68 of 1963 and claimed that it may be declared that the plaintiffs (plaintiffs of Title Suit No. 133 of 1960) have got no right to drain out the Ahar water to. the north of bundh being plot nos. 656 and 641 accumulating on plot nos. 812, 649, 651 and 768 and other plots and on declaration of the same the plaintiffs be directed to close the cuttings at their own costs. The said relief was claimed by the defendants alleging that they are using the water from the land of the plaintiffs since time immemorial. In the suit the appellants in the Second Appeal were the defendants and vice versa. Both the title suits were heard together and by the common judgment and decree, the trial court dismissed the plaintiffs' suit recording a finding that the defendants have prescribed title by easement as they are using water for irrigation purpose from the plaintiffs' land since more than 40 years. Accordingly, the present appellants' suit was dismissed and the respondents' suit was decreed. The present appellants then filed Title Appeal No. 166 of 1967 against the judgment and decree whereby the present appellants' suit was dismissed and Title Appeal No. 165 of 1967 against the judgment and decree whereby the present respondents' suit was decreed. As stated above, both the title appeals have been dismissed.

(3.) Second Appeal No. 226 of 1984 arises out of Title Suit No. 68 of 1963 filed by the present respondents whereas Second Appeal No. 228 of 1984 arises out of Title Suit No. 133 of 1960 filed by the present appellants. Since both the Second Appeals were directed to be heard analogously, a common substantial question of law was formulated on 11.4.1985 as follows:--