BIBI TAHZIBUNNISA Vs. SYED AZIZUR RAHMAN

JUDGEMENT

(1.) The plaintiff has filed the present appeal against the concurrent decision of the courts below dismissing her suit. She has claimed a decree for removal of certain obstructions, described in the plaint as genras and shown in the sketch map attached thereto which have impeded the facility of irrigation she is entitled to. She has also asked for a direction for filling up certain openings made by the defendant in the Pinds bearing survey plot Nos, 235 and 205 fully described in the plaint and for a consequent permanent injunction against the defendant.

(2.) The case made out in the plaint is that certain lands about 12 acres in area in village Beladih, fully described in Schedule I of the plaint belong to the plaintiff and have been irrigated with the water of a reservior, Gordhoi Ahar, bearing plot Nos. 401 and 403 to 406 of village Khap, The Ahar receives its water from another reservoir, Tikrahiya Ahar, bearing survey plot Nos. 235 to 237 besides some other plots by cutting pind of the Ahar bearing plot No, 237/281. The plot Nos, 235 to 237 are recorded in the survey papers as Khajana Pani, that is, water reservoir and stored water extends on plot Nos. 238, 246 and 204 and 244, also which form the bed of tha Ahar. It is said that the defendant wrongfully put genras (obstructions) in such a way that water now cannot collect in Tekrahiya Ahar and he is attempting to convert the Ahar into paddy field. Since the schedule I lands belonging to the plaintiff are entirely dependent on this source of irrigation the plaintiff is suffering heavy loss. To achieve the same purpose, the defendant has also cut a portion of the pind of the Ahar which he is not entitled to do. The overt acts of the defendant have been explained in the plaint with reference to the map.

(3.) The defendant filed a written statement challenging the plaintiff's claim and pleading that Gordhoi Ahar is an independent storage of water depending on rain water and Thartha water from the eastern and southern side and the survey entry mentioning supply of water from Tikrahiya Ahar is erroneous. Slops of the land is from south to north and flow of water as mentioned in the survey records or in the plaint is not possible. The topography has been explain-ed in paragraphs 8 and 9 of the written statement. The allegations made against the defendant to obstruct the flow of water have been denied.