RAMPRATAP Vs. BHERON SINGH

JUDGEMENT

(1.) RAM Pratap and others plaintiff appellants have filed this second appeal against the judgment and decree of the Revenue Appellate Authority, Jaipur dated the 25th November, 1962. Briefly, the facts of the case are that the plaintiff appellants filed a declaratory suit against Bheronsingh and others defendant respondents before the Assistant Collector, Bausa for the ownership of the well bearing khasra No. 53 situated in village Danalas, Tehsil Lalsot and restraining the defendant respondents from drawing water in the fields bearing khasra No. 54, 177, 178 and 179 without payment of 'nalbat' The defendant respondents did not contest the suit and therefore the court proceeded ex parte against them. The trial court rejected the appellant's suit on the ground that the chahi khasra No. 53 has already been recorded in the khatedari of the respondents and that the plaintiffs failed to prove their case. This decree of the trial court was upheld by the Revenue Appellate Authority in an appeal filed by the present appellant. In disposing of the appeal the trial court held that the plaintiff appellants failed to prove that they were the owners of the well in question and that they also held its possession. The counsel for the petitioner's only contention was that the two subordinate courts in rejecting the appellants' suit failed to consider the oral as well as the documentary evidence led by the appellant in support of the proof of the ownership of the well. All the witnesses and the record of the 'jag bhat' clearly shows that the well in dispute was constructed by the ancestors of the appellants. The agreement of the respondent though not registered can be looked into for the collateral purpose of possession of the well in question. The respondents did not appear and this appeal was heard ex parte.

(2.) WE have examined the record and considered the arguments advanced by the learned counsel for the appellant. In a declaratory suit the nature of which is described in chapter VIII of the Rajasthan Tenancy Act 1955 the suits of declaration of other rights specially falling in Secs. 91 and 92 A before they are disposed of it is necessary to determine what actually is the right the plaintiff claims against the respondent. From the averment in the plaint of the appellant it appears that the plaintiff claims the declaration that he is owner of the well in dispute and that the respondents who are drawing water from this well should be restrained unless they paid 'nalbat' for the use of water. A well in the Tenancy Act as such has no place except that it is an improvement on a land as defined in section 5 subsection 19 of the Tenancy Act. This improvement with reference to a tenant's holding is either a dwelling house erected on the holding by the tenant or any work which adds materially to the value of the holding and which is consistent with the purpose for which the holding was let and includes tanks, wells, water channels etc. The counsel for the appellant. , therefore, was asked whether this well which is an improvement with reference to a holding is attached to any of the holdings in his possession or in his khatedari rights. His reply was that the plaintiff appellant is the khatedar tenant of khasra No. 52 and 55 but he cannot say at present without looking to the record of rights as to which holding this well No. 53 is attached. The reason why the suit was filed by the plaintiff appellant was that the parcha of this well was wrongly given to the defendant respondent Bheronsingh. Therefore in the absence of this information as to which holding this well is attached it is not possible to decide any question of rights attached to an improvement. An improvement to an holding has to be with reference to a holding and it must be attached to that holding. It cannot exist independently of the holding. If the well is situated in a holding of the plaintiff appellant then the question of declaration of ownership and possession does not arise. A tenant who is the khatedar of the holding must also hold the well which is an improvement to that holding. No other person can claim ownership or possession of a well or an improvement which exists on the holding of another person. He can only claim certain rights of easement with reference to an improvement or a holding. It is therefore not understood how the two subordinate courts have disposed of this case without first determining this crucial point between the parties. There is no doubt that the plaintiff has given ample proof of his ownership of the well both oral and documentary. The non-registered agreement entered into by the respondent can be looked into for the collateral purpose of receiving 'nalbat' and possession, but certainly not for proving title to the well or the holding. But as stated above, in the absence of the information whether the well No. 53 is attached to the holding or the other it was impossible for the subordinate courts to decide this matter of dispute between the parties. Therefore the judgment of both the subordinate courts in the absence of this information is clearly perverse and against the provision of law and deserves to be quashed.