MAHARAJ HAJAM Vs. JIRJODHAN PERSHAD SINGH

JUDGEMENT

(1.) This second appeal is by the plaintiffs whose suit for certain reliefs in connection with some land and for recovery of damages from the defendants though decreed by the trial Court has been dismissed by the lower Appellate Court. The plaintiffs are the jagirdars of three plots of lands of village Dhole, viz., plots Nos. 597, 598 and 599. These are on the southern boundary of the village and south and east of them are the lands of village Arthua, the plaintiffs jagir on these two sides being separated from the lands of Arthua by a narrow strip of land, which runs north and south and then east and west, forming angle at the south-eastern corner of plot No. 598. Half of this narrow strip breadthwise is plot No. 722 of Arthua and the other half is plot No. 600 of village Dhole. This land has been shown in the maps of both the villages and a dotted line runs across them showing the number given is up to half of the pest" (?) only. The learned Munsif seems to have misunderstood the significance of the dotted line and thinks that it indicates a chaur . In fact it indicates that this plot, as I have said, is common between the two villages, the portion in Arthua being No. 722 of that village and the portion in Dhole being its No. 600. As a matter of fact Ibis strip is chaur according to Record of Rights of both villages. In continuation of the eastern portion of plot No. 722 of Arthua and 600 of Dhole which runs from north to south, there is an embankment being No. 764 of village Arthua which has been described in the Record of Rights as an ahar. In fact it is the embankment of the ahar, the resfuvoir itself being just to the east of it.

(2.) Now the plaintiffs case was that only this embankment terminated at the south east of plaintiffs plot No. 598, or, in other words, where the two arms of plot No. 722 of Arthua or 600 of Dhole form a right-angle. He alleged that the defendants without any right extended the pind northwards thereby converting a portion of plot No. 722 (Arthua) and 600 (Dhole) also into a pind of the ahar and shifted its kanwa (escape channel), which was at the northern extremity of plot No. 761 of Arthua to a place opposite their plot No. 598 (Dhole). They, therefore, sued for restoration of the conditions status quo ante and for damages. The trial Court decreed the suit but on appeal, as I have said, the learned Subordinate Judge has dismissed it.

(3.) The main question for consideration was how far the ahar, or strictly speaking its pind, extended,. When this point is determined, the location of kanwa is easy. In this connection the learned Munsif and to some extent also the learned Subordinate Judge have shown a little want of appreciation of the term ahar. When terms in use in a locality are mentioned by witnesses in Court or in Record of Rights, the Courts must take care to be. certain as to their meaning. The Courts below could have found very useful information in the Bihar Peasant Life by Sir George Grierson, Now, ahar strictly speaking is a piece of land having embankments and used for storage of water. The embankment which keeps the water confined is called pind, the ditch from which earth is taken for repair of that embankment is c died khata and the land where water is stored is called pet or bed of the ahar. All three taken together is known as ahar. But sometimes the term ahar is applied to the embankment only as the land where water is stored by means of that embankment is generally cultivated fields. Now the settlement papers describe the pind only as ahar and the field where water is stored is described as khazana pani. When the fardabpashi says that certain fields are irrigated by ahar it cannot certainly mean that it is irrigated by the embankment without any regard to the land where water is actually stored. The learned Munsif has treated the pind only as ahar and thinks that plots Nos. 761 to 764 described in the records as khazana pani is not ahar. The learned Subordinate Judge thinks that ahar is a channel through which water is carried from one place to another.Both of them are wrong. This want of appreciation of the correct significance of the word ahar has led the learned Munsif to form absolutely incorrect view of the facts of this case. Sir George Grier-son at page 203 while dealing with irrigation says: South of the Ganges and to the northwest khazana, ahar, ahri means the plain itself (i e., the place where water is stored) including the embankment. The embankment as distinguished from the plain is pind or alang.