HIRA LAL Vs. NARAIN

JUDGEMENT

(1.) This is a second appeal filed by the appellant against the judgment and decree of the Revenue Appellate Authority, Kota dated the 31st March, 1962. Briefly, the facts of the case are that the appellant claiming himself to be the khatedar of wells No..480 and 486 filed a suit against the respondent in the trial court of Sub -Divisional Officer, Hinduan under sec.188 of the Rajasthan Tenancy Act and prayed for a perpetual injunction to restrain the defendant respondents from drawing water from the wells owned by him for purposes of irrigating the fields in the vicinity. The Court decreed the suit but the first appellate Court reversed the judgment of the trial court and held that such suits are not maintainable under the Rajasthan Tenancy Act in the revenue courts, but in such cases of interference of easement rights the appellant could claim relief from the civil courts.

(2.) The learned counsel for the appellants first contention was that the appellant is the owner of the well in question and their right to the enjoyment of these wells was threatend by the respondents by drawing water from the wells to irrigate their own lands. Therefore he had a remedy to sue the respondents under sec. 188 of the Rajasthan Tenancy Act for perpetual injunction by restraining them not to interfere with his right of exclusive enjoyment of his wells. He argued that the well comes within the definition of land under sec.5 sub -sec. 24 of the Rajasthan Tenancy Act as it is an area covered by water. For this reason he points out that the well being land was holding within the meaning of sec. 188 of the Act. He further pointed out that under sec. 5 sub -sec. 47 nalbat has been defined as a payment in cash or in kind to the owner of a well by some person for using that well for irrigation. Under sec. 36 -A this right to nalbat can be acquired on payment of compensation and under sec. 158 of the Act, a suit for recovery of irrigation dues on account of nalbat can be filed. The appellant, therefore, has a right regarding nalbat which has been threatened by the defendant and therefore under sec. 92 of this Act a suit for injunction is maintainable against the respondent. The appellants counsel also pointed out that a well is in the nature of an improvement on a land and if an enjoyment of right of improvement is threatened, suit for perpetual injunction is maintainable. The counsel for the respondent repelled the argument of the counsel for the appellant by saying that the term well cannot mean land and the appellant who considers himself as the owner of the well can only recover nalbat charges from the respondent. But the present suit is not for recovering nalbat charges but for restraining the respondents by perpetual injunction not to draw water from his well. Therefore no suit is maintainable under sec. 92 -A of Tenancy Act. The substance of the appellants claim is his right of enjoyment of well, by way of easement and if that is disturbed he can file an application under sec. 251 of the Rajasthan Tenancy Act before a Tehsildar for giving him the required relief. But if he fails then he can proceed under sub -sec.2 of sec. 251 of the Rajasthan Tenancy Act by filing a regular suit in a competent civil court. The present suit of the appellant is clearly not maintainable. In support he cited the decision of the High Court of Rajasthan in Nenuram versus Shrimati Jaswanti reported in R.R.D. 1961 page 22 and R.L.W. 1960 page 376.

(3.) We have considered the arguments advanced by both the counsel of the parties and perused the record. It is an admitted fact that the appellants are the owners of the well and the respondents claim the right of drawing water from the appellants well and in exercise of that right they are drawing water from these wells. The appellant feels that his exclusive right of the enjoyment of well is being disturbed by the respondents and hence he has brought this suit of perpetual injunction. Clearly this suit is not maintainable under sec. 188 of the Rajasthan Tenancy Act because under that section only a tenant whose right of enjoyment of his holding is violated or threatened can maintain such a suit. A well which bears a separate khasra number though located in a holding having a different khasra number, cannot be called a holding. It is a different entity. It will be stretching the definitions of land and holding too far by including well into that definition. We are not enamoured of the reason given by the counsel for the appellant in accepting the plea that a well means a holding. It is a different entity. Similarly no right of nalbat or improvement of land has been threatend here. This is not a suit in which the plaintiff appellant has claimed nalbat charges from the respondents for the use of the water drawn from his well. The contentions of the counsel for the appellants are entirely without foundation, that the appellants right to the enjoyment for his holding or nalbat, improvement etc. is in any way being threatened to enable him to maintain a suit for injunction against the respondent. In our opinion the appellant has only one right and that is the right of exclusive enjoyment of his well apart from his holding. Easement rights if any over the well are claimed by the respondents, who have filed no application under sec. 251 of this Act before the Tehsildar for holding an enquiry and to restore their -enjoyment. On the contrary the appellant has come to the court for redress of his grievance. If the appellant feels that his right of exclusive enjoyment of the water of the well is being disturbed in any manner and he does not recognise the right of easement of the respondent to draw water from the well the only remedy for him is to proceed under sec. 251 of the Tenancy Act and if he does not succeed in getting the required relief he may file a regular civil suit as contemplated under sub -sec. 2 of sec. 251 in a competent civil court for getting his right of exclusive enjoyment of the waters of the well being declared in his favour and the respondent permanently restrained from interfering with it. The judgment as reported in RLW 1960 page 376 of the Rajasthan High Court is an authority that for disturbance of easement rights an application lies in first instance under sec. 251 of the Act failing which a proper regular suit is to be filed before a competent civil court. We are clearly of the the opinion that the appellants suit is not maintainable in the revenue courts and consequently his appeal must fail.