RAMJI SAHEBLAL PATIL Vs. TANYABAPU HANMANTRAO POWAR

JUDGEMENT

(1.) THE parties to this appeal are co-sharer malguzars in the village of Tumsar in the Bhandara district. In this village there are several tanks which are used for irrigating the rice crops growing in the fields. One of these tanks has been given No. 672 in the village papers. The plaintiff-respondent cultivates as part of his home farm fields Nos. 595, 604 and 608 in this village and grows rice in them. His complaint was that in September 1932 the appellant-defendant had interfered with his right to irrigate these fields from tank No. 672. The defendant countered by saying that the plaintiff had no right to irrigate these fields from the said tank. The question therefore was whether the plaintiff had or had not the right to irrigate these fields from the said tank. The trial Court held that the plaintiff had the right by virtue of the fact that he was a malguzar of the village and that the tank in question belonged jointly to the whole proprietary body. All the malguzars therefore had an inherent right to use the water of the tank. He therefore gave the plaintiff the injunction which he sought against the defendant. On appeal by the defendant the lower Appellate Court held that the mere fact that the plaintiff was a malguzar and that the tank was in the joint ownership of the proprietary body did not give the plaintiff the right of using the water for irrigating his fields and that his rights must be proved aliunde. The learned District Judge then went on to point out that the documentary evidence which had been produced consisting of copies of the khasra (Ex. P-l) and the village administration paper (Ex. D-2) was conflicting and that the latter should be given the greater weight, and that inasmuch as according to that document the plaintiff had no right to irrigate these fields from the said tank his claim must fail, and he therefore dismissed the plaintiff's suit. On second appeal the learned Judge of this Court held that the lower Appellate Court was wrong in giving greater weight to Ex. D-2 than to Ex. P-l, that both had equal weight and that as according to-Ex. P-1 the plaintiff had the right to irrigate two of the three fields Nos. 595 and 604 from this tank he must succeed in respect of those fields but must fail in respect of field No. 608, the right to irrigate which from the tank was not supported by either document. The defendant has now filed this Letters Patent appeal objecting to the plaintiff being granted an injunction in respect of the two fields, while the plaintiff has taken a cross-objection that he should be granted an injunction in respect of the third field also.

(2.) IT will be convenient to dispose first of the plaintiff's cross-objection in respect of field No. 608. It is obvious that unless the plaintiff can base his right to irrigate this field on something outside Exs. P-1 and D-2 he must fail because neither of these documents discloses any right in him to irrigate this field from the said tank. He relies on the fact that the tank is in his mahal and therefore according to him he is the owner and that being so his ownership carries with it the right to use the water for irrigating his fields. As to ownership of the tank it was held by the trial Court that the tank was jointly owned by the plaintiff and defendant. That finding was not challenged in the lower Appellate Court as has been pointed out by the learned District Judge who confirmed the finding of the trial Court on this issue. The finding was challenged in second appeal, but the learned Judge disposed of it in a few words by observing that it was a finding of fact which must stand in second appeal. Still less then can that finding be now challenged in Letters Patent appeal. The plaintiff cannot therefore be heard to urge that he has the exclusive right to the tank. He also urges that even if the tank is jointly owned, he has right to take water from the tank as was held by the trial Court. This question has been fully discussed by the lower Appellate Court and by the learned Judge of this Court in para. 3 of his judgment in second appeal and we need not say more than that we agree with the view which he has expressed. If then the plaintiff has no inherent right as malguzar to irrigate the fields from this tank and has not been able to show that any such right has been recorded in his name in the Record of Rights, then his claim to irrigate Field No. 608 must fail and that disposes of the cross-objection.

(3.) THE learned Judge is perfectly correct in observing that under Section 45, Land Revenue Act, the Record of Rights includes both the khasra and the village administration paper, i.e. Exs. P-1 and D-2, since Ex. P-1 falls under Section 45(2)(b) while Ex. D-2 falls under Section 45(2)(c). Section 45(2)(b) provides that the khasra or field-book is to contain the names of all persons cultivating or occupying land, the right in which it is held and the rent, if any, payable. Clearly therefore it is to contain a description of home farm lands just as much tenancy lands. Ex. P-1 is a copy of the entries made concerning home farm lands. Where we think the learned Judge has gone wrong is in saying that the khasra is prepared by virtue of Section 70, Land Revenue Act, from which he draws the conclusion that Section 70 is exhaustive as to what the khasra is to contain. Section 70 only deals with what the khasra is to contain as far as tenancy lands are concerned. It does not touch what it is to contain in the case of home farm lands. For these we are thrown back upon Section 45(2)(b). As these are home farm lands they do not come under Section 70 at all. Consequently, the learned Judge is mistaken in observing that in respect of these fields Section 70(1)(c) includes rights of irrigation. Moreover, the words "the conditions on which they are held" mean restrictive conditions under which the lands are held and do not appear to us to include additional privileges or rights such as rights of irrigation which may attach to such lands. Rights of irrigation are specifically dealt with in Section 78(b) and if they were intended to be included in Section 70(1)(c), Section 78(b) would be superfluous.