ISMAIL MUNSHI Vs. NIAMAT KHAN

JUDGEMENT

(1.) The Defendants Nos. 1 and 2 are the appellants in this appeal. The facts relating to the suit out of which this appeal has arisen, are as follows : At the instance of the Defendants Nos. 1 and 2 certain proceedings under Section 133 of the Criminal Procedure Code were taken by a criminal Court in respect of an alleged public channel or water-course. The said public channel or water-course is said to have been in existence over the plaintiffs land, and through it, it is alleged, the surplus water of the lands lying to the south of the plaintiffs land used to be drained off towards the north. As a result of these criminal proceedings the alleged public channel or water-course was found to-have been obstructed and an order was passed under the provisions of that Code for the removal of that obstruction, the practical result of which was that the channel or water-course, such as it was, was re-excavated. Thereafter the plaintiffs who were interested in the lands over which the alleged public channel or water- course is said to have existed instituted the present suit. In this suit they asked for several reliefs and it is necessary to mention here only two out of them, namely, first, a declaration that the plaintiffs were entitled to the lands on which the channel is alleged to have existed, and, secondly, a declaration that the Defendants Nos. 1 and 2, or the public in general, had no right of overflow of surplus water over any channel or watercourse through the plaintiffs lands. There was a prayer for a declaration that the proceedings held in the criminal Court were ultra vires and there were other prayers as well but with these we are not concerned at the present stage. In this suit the plaintiffs impleaded as defendants the Defendants Nos. 1 and 2, who are the appellants before us as the principal defendants, and twelve other persons as the pro forma defendants; and they purported to institute this suit against the Defendant No. 1, not merely in his personal capacity, but also as representative of the public.

(2.) The Munsif dismissed the suit holding in effect that the passage or water-course was in existence over the plaintiffs land and that, therefore, the plaintiffs ware not entitled to any relief in the present suit. On appeal preferred by the plaintiffs the Subordinate Judge took a contrary view and held that there was no public channel or water-course over the plaintiffs land and, therefore, gave the plaintiffs a decree to the terms of which it is necessary to refer here. By this decree the decree passed by the learned Munsif was reversed and the plaintiffs suit was decreed their title to the disputed land was declared, and it was further declared that there was no public channel or water-course over the plaintiffs land. The decree further directed that the principal defendants, namely, the appellants before us, do fill up the channel or water course and restore the disputed land to its original condition. Against this decree the present appeal has been preferred.

(3.) The contentions urged before us ultimately resolve themselves into two. The first contention relates to the propriety of the decree that has been passed by the Subordinate Judge in view of the findings that he has recorded in his judgment, In this connexion a very ingenious attempt has been made on behalf of the appellant before us to induce us to hold that the findings at which the learned Subordinate Judge has arrived are inconsistent with the position which would justify the decree that he has passed. It has been urged in substance that whereas in the judgment of the learned Subordinate Judge there are passages which go to indicate that the water of lands lying to the south of the plaintiffs land drained out to the north through some depression on the plaintiffs land, he has eventually held that there is no channel or water-course, and on that footing has given the plaintiffs the relief mentioned above. Reference, for instance, has been made to a passage in the judgment of the learned Subordinate Judge which runs in these words: The general slope is from east to west and from south to north though the slope is not uniform. It then appears that the rain-water falling in the char drains off and towards the north and that it collects also in the depression of the char in the middle between the slopes to the east and west. Tide water also comes over the char from the north and during the rains the char is submerged except the high bank of a river in the east. Tide water and flood water do not appear to require any channel over the plaintiffs to pass out except perhaps the residue.