RADHA KISHUN Vs. SUNDAR MAL

JUDGEMENT

(1.) This is an appeal by the defendants in an action in which the plaintiffs claimed a declaration that they were entitled to irrigate their village in the manner to which I shall in a moment refer. The action was undefended in the Court below. The defendants filed a written statement and asked for an adjournment of the hearing but not, succeeding in this application they took no further part in the proceedings. A subsequent application was made to set aside the judgment and decree. That also having failed, there was no appeal and consequently that matter his now been finally disposed of. There was an application made to this Court to be allowed to adduce evidence which the defendants state they were unable to adduce in the Court below but this was not pressed. The Fard abpashi of defendants village was not produced, the plaintiffs agreeing to allow the defendants to produce the Fard abpashi of their village;

(2.) The plaintiffs are the purchasers of the birit rights in the village Jabdi, the plaintiffs Nos. 5 and 6 being the representative tenants who joined in the action under Order 1, Rule 8, Civil Procedure Code. The defendants village is known as Beheri. It is situate on the banks of the river Rangi to the north and east of the plaintiffs village. The defendants are therefore riparian proprietors as regards the Rangi river and a part of the plaintiffs village abuts on to the river but with that part we are not concerned in this action; we are concerned with the more northerly part of the village which is bounded on the east by the defendants village, thus shutting off the plaintiffs village from the river Rangi and it is also bounded on the north byBeheri. The defendants are also biritdars, as regards Beheri.

(3.) The plaintiffs case is that from time immemorial thev erected a bandh in the river Rangi at the northeastern corner of the defendants village, revisional survey plot No. 808 and the water thus collected proceeds through a ditch which the plaintiffs made in revisional survey plot No. 807. The water coming through this ditch leads into the pyne plots Nos. 805 to 814. They then proceeded to erect a bandh at plot No. 91 and through a system of pynes irrigating their village to the south. The village Jabdi to the north is also irrigated through a system of pynes. The defendants in the exercise of their riparian rights have erected a bandh on the river near plot No. 722. The water flows eventually through pyne No. 718 and into pyne plot No. 814, which I should have stated was a pyne belonging to the defendants. There was another bandh between the two mentioned, that is the plaintiffs and the defendants erected towards the north-east of plot No. 761. This was, about 1913, a kutcha bandh and was a method of assisting the irrigation through the system of pynes to which I have already referred of the defendants village. This was done by a Mr. Ammon who was the manager of the thikadar of the Beheri village and part of the plaintiffs case is that this hutch a bandh was erected with the consent of the thikadar who was then in possession of the plaintiffs village. The plaintiffs claim to irrigate their village from this pyne plot No. 814 not only with the water collected there as a result of the erection by them of the bandh in plot No. 108 but also with the water in pyne No. 814 as a result of the erection of the two bandhs by the defendants which I have mentioned. That is to say, they claim the use of the surplus water in pyne No. 814 after the defendants have irrigated their village. There was a letter produced in the case which was written in 1913 by Mr. Ammon which has given rise to some controversy before us.