AKHAURI THAKUR PRASAD Vs. DWARKA SINGH

JUDGEMENT

(1.) This is an appeal by all the defendants except one Jadu Singh in a suit instituted by the plaintiffs to recover from them a certain sum of money as damages for loss sustained by them as a result of the diversion of a water channel by the defendants. The plaintiffs and the defendants are interested in two neighbouring villages, named Aganda and Wari, the latter being to the east of the former. It appears that the lands of Aganda are irrigated by means of water which comes through a baha known as Pirtbia Bandh Baha. The baha comes into village Aganda through village Bajaura which is situated immediately to the south of Aganda and in Bajaura the baha bears plot No. 1251 and its eastern embankment bearing No. 1252 lies between Bajaura on the west and Wari on the east.

(2.) The appellants cut an opening or khanr in this embankment some time in 1928 and after that they brought a suit for a declaration that the khanr in question remains always open in order to enable the water of the Pirthia Bandh Baha to flow through this khanr to the village Wari. In this suit there was also a prayer for a permanent injunction to restrain the present plaintiffs and other mukarraridars of Aganda from filling up the khanr. This suit was instituted on 10 October 1928, and a temporary injunction was issued by the trial Court during its pendency. The suit was however dismissed on 24 February 1930, and the appeals preferred by the pre-sent defendants against the decision of the trial Court to the District Judge and the High Court were dismissed respectively on 19 January 1931, and 25th October 1933. The present suit was instituted on 19 December 1934.

(3.) The plaintiffs allege in this suit that the opening in the bandh continued even after the suit had been decided by the trial Court and that the plaintiffs themselves could not close the opening on account of there being obstruction on the part of the present defendants. Both the Courts below have decreed the suit in part and the defendants other than Jadu Singh have appealed to this Court.