JUGAL KISHORE Vs. UMRAO SINGH

JUDGEMENT

(1.) In village Katera Jaferabad, in the district of Meerut, there are five johars (small tanks) including the one which is now in dispute and which stood on plot No. 431A. A part of the johar in dispute has now been levelled up and brought under cultivation. Lala Jugal Kishore, the lambardar of the village, had given the plot no lease to Nathu for cultivation. When Nathu started cultivating the land, the plaintiffs, who the some of the residents of the village, instituted the suit, which has given rise to this appeal, against Jugal Kishore and Nathu (defendants 1 and 2) to obtain a perpetual injunction restraining the defendants from cultivating the plot and a decree directing them to restore its condition as johar. Their case was that from time immemorial they and other residents of the village had been using the water of the johar for their cattle and taking earth from it for building and repairing their houses.

(2.) The defendants contested the suit on the ground that the plaintiffs alone were not entitled to maintain the suit as they had not complied with the provisions of Rule 8 of Order 1, Civil P.C., and that there was no johar on the plot in suit andthe plaintiffs have not acquired any customary or prescriptive right of easement to take water or earth from the johar in suit and there were other johars in the village which were being used for the purpose mentioned above.

(3.) The trial Court held that there was a johar on the plot in dispute from time immemorial; that the plaintiffs and other residents of the village have acquired a customary easement to take their cattle to the johar in suit for drinking water and to take earth for building and repairing their houses; and that the plaintiffs having sued in their personal capacity the suit was maintainable in spite of the non- compliance with the provisions of Order 1, Rule 8, Civil P.C.