RAJPATI NARAIN SINGH Vs. KIRAT NARAIN SINGH

JUDGEMENT

(1.) The facts are stated in the judgments of the Courts below, and I do not think it necessary to repeat them here. As pointed out by the Subordinate Judge, the Munsif framed eight issues in the suit of which the important ones were numbers 6 and 7, namely: 6. Is plot No. 1616 the bakasht of the plaintiffs as alleged by them? If not, can the plaintiffs restrain the defendants from discharging water of their takhta through it? 7. Have the defendants any right to discharge water of their takhta through plots Nos. 1616, 1617, 1638 into 832?

(2.) On these issues, the Munsif had found that the entry in the Record of Bights was correct, that plot No. 1616 was gairmazruaam and was in fact a sota or water channel. He held that the plaintiffs were not entitled to restrain the defendants from discharging water of their takhta through this plot into the takhta of the plaintiffs, and he further held with reference to the other issue that the defendants had the right which they claimed to discharge the water of their takhta in the manner alleged. The Subordinate Judge acceded to the argument that the judgment of the Munsif was vitiated by misplacing the onus on the plaintiffs. The Subordinate Judge then proceeded into a lengthy disquisition on the law in the course of which he lost sight of the questions contained in the issues and failed to answer them. It is unfortunate that he has not succeeded in appreciating the functions of the Court of first appeal. The duty of such a Court is to determine all the questions of fact necessary for decision of the issues. He may think that on a particular issue the burden of proof is on the plaintiffs or on the defendants and his view on that may affect his finding. Should that be so, he would do well to say what view he would take of the disputed question of fact had he placed the burden on the other party.

(3.) In this manner it is possible for the Court of first appeal to avoid all the unnecessary harassment to parties which is involved when in second appeal it is found that there is no ascertained set of facts to which the law can be applied. The Subordinate Judge's view of the law rests on the principle enunciated in Hari Mohun Thakur V/s. Kissen Sundari (1885) 11 Cal. 52 where it was said that the right to restrain an owner of land from exercising ordinary proprietary rights over his own land is of the nature of an easement differing from the ordinary rights of owners of land; the burden of proof would therefore lie on the party alleging such rights. He then said that the point to be decided was whether the defendants had got a right of easement to discharge the surplus water of their takhta; but the claim of the defendants was not a claim by way of easement over the land of the plaintiffs but a claim to a "natural right," the words used in the written statement.