RAMSEWAK KAZI Vs. RAMGIR CHOUDHURY

JUDGEMENT

(1.) The defendants are the appellants, and the appeal arises out of a suit in which a declaration was sought that the plaintiffs were entitled to irrigate their fields lying in four villages from the water of a river called eastern Sheoraha and that the defendants had no right to obstruct the course of the river. The plaintiffs are the residents of villages Gujra Motihari, Belwa alias Balua, Bairia alias Barheya and Turkolia, and they have got Jands in the first three villages mentioned above and in village Jamunia. The defendants are the residents of villages Mahui, Sonbarsa and Ban-katwa. The plaintiffs have instituted the suit in a representative capacity, that is, as representatives of the residents of the four villages, the lands of which are, according to them, irrigated by the water of eastern Sheoraha. The defendants also have been sued in a representative capacity, that is, as representing the residents of village Mahui, Sonbarsa and Bankatwa.

(2.) The case which the plaintiffs have sought to make out is that there is a natural stream called eastern Sheoraha, having its slope towards the south. This stream emerges from the jungles in the Himalayas, and after passing through Bankatwa and Sonbarsa flows to the south and to the villages of the plaintiffs mentioned above. According to their allegation the lands of the four villages are irrigated from the water of eastern Sheoraha from time immemorial, no other source of irrigation being available to them. The cause of action for this suit is said to have arisen in Asarh 1351 when the defendant No. 1 after taking earth from his plots Nos. 51 and 52 of village Sonbarsa raised the level of that portion of the river which lies to the west and the south of survey plot No. 52 and constructed a bundh across the river Sheoraha to the northwest of plot No. 52. When the plaintiffs came to know of the construction of the bundh and the raising of the level of the river they took serious objection, with the result that the defendants got a proceeding under Section 144, Cr. P. C. started against them. The plaintiffs then filed a petition before the Subdivisional Magistrate of Bettiah praying that a proceeding under Section 133, Cr. P. C. be drawn up, but the learned Subdivisional Magistrate by his order dated 13-9-1944 started a proceeding under Section 147, Cr. P. C. After taking evidence he made the rule absolute against the plaintiffs, and thereafter the present suit was instituted. The prayer in the plaint is for a declaration that the plaintiffs are entitled to irrigate their fields from the water of the river and that the defendants who are the residents of Mahui, Sonbarsa and Bankatwa have no right to obstruct the natural flow of the stream. It is further prayed that the defendants be ordered to remove the bundh and to bring the bed of the river to its original level, failing which the bundh be removed and the bed of the river brought back to its original level under the orders of the Court. A permanent injunction is also sought restraining the defendants from obstructing the natural flow of the river. Rs. 4500/- is claimed as compensation for the damages caused to paddy field lying in the villages of the plaintiffs.

(3.) The defendants resisted the plaintiffs' claim on various grounds, and the pleas on which they mainly rely are that the eastern Sheoraha is an ordinary nala and not a natural stream, that bundhs have to be constructed for utilising the water of the stream & the bundh mentioned in the plaint is not a recent construction and, that only the surplus water of eastern Sheoraha flows down the disputed bundh up to the lands of village Bairia where the stream terminates. It is, therefore, contended by the defendants that the plaintiffs had no cause of action for the suit and not entitled to any decree.