RAMCHANDRA NAGOBA Vs. RETIRAM

JUDGEMENT

(1.) THE appellant is a malguzar owning some sir and khudkast land in the village known as Katurli and the defendants, at least some of them, are the malguzars of the same mauza. That mauza is divided into three mahals. The dispute relates to the plaintiff's right to drain off the bed of a tank bearing old No. 221-2, new No. 293 lakh situate in shamlat mahal No. 3 through its sluice A so as to discharge superfluous water remaining after the irrigation of the dhan crops is over, over the defendants' lands lying at the base of the tank, in order that the bed once submerged under water may be utilized by him for sowing kathan crop thereon. The malguzars defendants, who deny the plaintiff's right, are said to have caused obstruction to him in the year 1923, in the exercise of his right to so drain off and discharge the said water, and thus prevented him from using portions of the bed, namely, 2.25 acres out of sir plot No. 292 of mahal No. 2 and 2.20 acres of khudkast No. 293-1kh of mahal No. 3 for the said purpose of sowing kathan crop, and thereby caused him loss to the extent of Rs. 100. Hence this suit for injunction and damages against the smalguzars defendants, and others who acted in concert with them.

(2.) THE defence need not be detailed here, but it is sufficient to state that the case of the malguzars defendants 1 and 2, is that plaintiff cultivates the bed of the tank as it dries up, i.e., such portions only as get dried in the ordinary course by the water being used up in irrigating the dhan crops, and that he has no right to drain off and discharge the water on their land for drying up the bed.

(3.) THE plaintiff has come up in second appeal to this Court. At the very outset, I must remark that the District Judge was perfectly right in overruling the plaintiff's contentions based on an alleged custom, as he did not plead it specifically on the trial Court. This disposes of grounds 3 and 8 of this appeal.