RAMCHANDRA Vs. LAKHA

JUDGEMENT

(1.) THE first and for a most point urged by the plaintiff appellant in this case is that Civil Court had no jurisdiction to entertain the suit. THE question arises in the following circumstances.- THEre is a well called 'rambaba Wali Kothi' bearing Khasra No. 376 having an area of 5 Biswas situated in village Bhartiya Khund, Tehsil Niwai, District Tonk, of which the plaintiff claims to be a Khatedar tenant. It was alleged by him that he and the defendants are related to each other, and, therefore, during the last settlement he had permitted the defendants to take water from the above wall for 4 days in a month in order to irrigate their land, but there was a definite understanding between the parties that the plaintiff would be at liberty to stop the defendants from drawing water from the well any time he liked. THE plaintiff goes on to state that in accordance with this understanding the plaintiff stopped the defendants about 7 years before the filing of the suit and the defendants did not offer any resis-tence or opposition. It is further alleged that some time in the beginning of February 1959 the defendants forcibly started taking water from the well and the plaintiff offered resistance, which gave rise to quarrels between the parties He. therefore, filled the present suit in the Court of Civil Judge, Tonk on 18-10-1959 praying that the defendants may be restrained from drawing water from the well in question to irregate their land. THE suit was opposed by the defendants, who claimed a right of easement in this respect. THE learned Civil Judge, Tonk recorded the evidence produced by the parties, and thereafter by his judgment dated 1810-1962 dismissed the plaintiff's suit.

(2.) AGGRIEVED by the judgment and decree by the trial court the plaintiff filed appeal in the Court of District Judge, Jaipur City who affirmed the judgment and decree by the trial court and dismissed the appeal. Hence this second appeal by the plaintiff.

(3.) IN Kundanlal vs. Parshadi (3) it was held by the learned Judges of the Allahabad High Court that a plaintiff cannot by merely changing the form of his relief evade the provisions of a special law. 1 he same is true and to a greater degree, in my opinion, in respect of the defence raised by a defendant, who cannot question the jurisdiction of the court on the basis of his defence I fail to understand how the jurisdiction of the court is to depend upon the defence raised by the defendant? Consequently, the mere fact that the defendants in the present case have raised a plea that they have a right of easement to draw water from the well will not bring the case within the purview of sec. 251 of the Act, and the jurisdiction of the revenue court would not be ousted.