GH MOHD NUMBERDAR Vs. MOHD BHAT

JUDGEMENT

(1.) THIS second appeal by the plaintiffs is directed against the judgement of reversal. The trial court decreed the suit, the lower appellate court set aside the judgement and dismissed the suit.

(2.) THE plaintiffs filed the suit in representative capacity in terms of order 1 rule 8 of the Civil Procedure Code claiming to represent the interests of inhabitants of 101 villages, compendiously described as Khulwalas, against the inhabitants of 25 villages described as Arahwalas, in Tehsil Budgam represented by defendants 1to 25. Later defendants 27 to 62 were added in view of the dispute raised by the Arahwalas regarding the number of villages on their side. The State Government through Chief Secretary/Commissioner was impleaded as defendant no.26. The suit was for declaration that the plaintiffs alone are entitled to the water of Nalla Shaliganga and its four distributaries, namely, Lani, Jani, Sonmai and Naukul khuls in Tehsil Budgam in which defendants have no right, and for permanent injunction against the defendants that they should not in any way interfere with the exclusive enjoyment of water of the said Khuls by the plaintiffs, and effect cuts or other outlets in these Khuls for irrigating their lands.

(3.) THE case of the appellants is that the Khulwalas own 92,274 Kanals of irrigated land in their respective villages as per details in appendix 'A while the Arahwalas, own 17,922 Kanals of irrigated land in their respective villages as detailed in appendix 'B. The lands of the appellants villages are irrigated by Shaliganga and its four distributaries i.e. Lani, Jani, Sonmai and Naukul and they have been exclusively using its water since time immemorial. These lands are uneven, slopey and stony and, as such, require more water for irrigation. The lands of the respondent villages are irrigated mainly by spring water from the springs detailed in appendix 'C as well as seepage water leaking from the aforementioned Khuls due to uneven terrain through which the Khuls pass. The water form these springs is so abundant that besides irrigating the lands of the respondents villages, they help more than 100 rice husking mills and Ghandars run round the year. The land in the respondents villages being even and soft, they convert some of their khushki lands into abi -lands and in this manner they need ever increasing quantity of water for irrigated and non -irrigated lands. Since some time past, the respondents were trying to appropriate water form Shaliganga and its distributaries by making cuts and outlets. The revenue authorities on misrepresentation of facts by the Arahwalas took a decision regarding distribution of water of these Khuls between the appellants and respondents. However, the decision was never acted upon and Khulwalas continued to enjoy the water of these Khuls exclusively. In the current year (2010 BK = 1953 AD, when the suit was filed) on account of drought the water supply fell down. The Arahwalas illegally made cuts at various places of the Khuls and tried to forcibly take water for irrigating their lands giving rise to apprehension of breach of peace and creating a cloud over the rights of Khulwalas to the exclusive use of water of the Khuls.