BADRILAL Vs. MODA

JUDGEMENT

(1.) This revision has been placed before us on a reference made by a learned single Judge as it raises an important question as to the jurisdiction of a civil court to try the suit for perpetual injunction in respect of right of drawing water from the well bearing a separate khasra number and further to take water in a drain on the basis of easementary right.

(2.) The plaintiff-non-petitioners Nos. 1 and 2 instituted a suit for permanent prohibitory injunction and damages against the petitioners (defendants Nos. 1 and 2) in the court of Munsif, Mandelgarh on Sept. 12, 1969. It was alleged by the plaintiffs that a well having separate khasra No. 168 is situate in village Khadipur, Tahsil Mandalgarh; that in that well, the plaintiff, defendant No. 4 and defendant No. 1 have 1/6, 1/2 and 1/3 share respectively; that prior to February 15, 1949, defendant No. 4 had 1/2 share and defendant No. 1 had 1/2 share and both of them used to irrigate their fields from the well every three days turn by turn; that on February 15, 1940, defendant No. 1 sold l/3rd of his 1/2 share to the plaintiffs' father Narain on a sale consideration of Rs. 50/-and thus the plaintiffs became entitled to 1/6 share in the khatedari rights of the well inclusive of the right of irrigation and taking water in the existing drain through the land of defendant No. 1. Their case further is that since Feb. 15, 1940, the plaintiffs' father Narain during his lifetime and after his death, the plaintiffs have been irrigating about two bighas of their agricultural fields by taking water in the drain through the land of defendant No. 1. It was also averred that they have been using the drain for irrigating their land in their own right from the well in question without any obstruction and interruption and this they did until the Deepawali preceding the suit. The case of the plaintiffs further is that near about October 15, 1968, when the plaintiffs, for the purpose of sowing wheat, started drawing water from the well, the defendants started quarrelling and prevented them from drawing 1/6 water from the well according to their share and further obstructed in taking the same in the drain passing through the land of defendant No, 1 without any right and, therefore, the plaintiffs could not sow wheat in 2 bighas of their land. The plaintiffs put forward a claim for Rs. 400/- on account of damages as the defendants, without any right, improperly and illegally prevented them from drawing water from the well and taking it in the drain. It was, therefore, prayed that the defendants be restrained, by means of permanent prohibitory injunction from interfering with the plaintiffs' right to draw l/6th water from the well according to their share and further from obstructing, interfering and disturbing with the right of the plaintiffs to take water in the drain on defendant No. 1's land for the purpose of irrigating their land. The defendants Nos. 3 and 4 filed a joint written-statement on August 5, 1971, It was, inter alia, pleaded by them that the suit is triable by a revenue court. On Feb. 1, 1972, an application was moved on behalf of defendants Nos. 3 and 4 that a legal objection has been raised by them to the effect that the suit is not triable by a civil court and it is cognisable by a revenue court and, therefore, arguments may be heard on this point first. On this application, arguments were heard and the learned Munsif, by his order dated April 5, 1972, dismissed the application dated February 1, 1972 filed by defendants Nos. 3 and 4 and held that the suit is triable by a civil court.

(3.) Aggrieved by this order dated April 5, 1972, defendants Nos. 3 and 4 have preferred this revisional application to this court. When the matter came up for hearing before Jagat Narayan, C. J., he was of the opinion that this revision application raises an important question as to whether a well situated in a holding and used for agricultural purposes is land within the meaning of Section 5 (24) of the Rajasthan Tenancy Act (No. III of 1955) (the Act hereafter) and a suit for injunction in respect of right of taking water from the well by a cosharer only lies in the revenue court. Before him Rampal v. Rampal, 1968 Raj LW (Rev Sup) 93 (FB) (Full Bench decision of the Board of Revenue, Rajasthan) was cited. He, therefore, ordered that this case should be placed before a Full Bench for decision. This is how this revision is before us.