RISALDAR BHARAT SINGH Vs. NANHUN

JUDGEMENT

(1.) This is a second appeal from the decree of the learned District Judge of Rohtak affirming on appeal the decision of a Subordinate Judge dismissing the plaintiffs suit for the issue of a perpetual injunction restraining the defendants from irrigating lands in their cultivating possession from the well situate in khasra No. 2509 in Mauza Balland in the District of Rohtak.

(2.) The suit giving rise to this second appeal was filed by five Jat proprietors of Pana Kheri in the village Balland under Order 1, Rule 8, Civil P.C., as representing all the proprietors of the said Pana. This Pana is subdivided into two Thullas known as Thulla Bahrla and Thulla Bhitarla. There is separate shamilat for the Pana and for each of the two Thullas. According to the list of land owners filed with the plaint, there are as many as 70 proprietors in Thulla Bahrla and as many as 36 proprietors in Thulla Bhitarla The defendants are 11 person of the Saini tribe who are known as malis, presumably by reason of their cultivating certain land known as Bagh which is used more or less as a vegetable garden. From the copies of the revenue records that have been placed on the file, it appears that the ancestors of the defendants, and after them the defendants, have been in cultivating possession of certain lands forming part of the shamilat of Pana and the shamilats of the two Thullas since at least 1854. In the record prepared in 1261 Fasli which appears to correspond to the year 1851 A.D. 8 bighas of shamilat Pana comprised in khasra No. 880, 7 bighas and 6 biswas of shamilat. Thulla Bhitarla comprised in khasra No. 878, and 7 bighas and 8 biswas of shamilat Thulla Bharla comprised in khasra No. 879, were shown in the cultivating possession of Har Dial and Rattan Malis. It is noteworthy that out of the shamilat Pana land comprised in khasra No. 880, 3 bighas and 9 biswas were shown as rosali chahi, the remaining 7 bighas and 1 biswa being banjar, and that the entire land forming part of the ?shamilat of the two Thullas which was in the cultivating possession of the aforesaid persons was shown as rosali chahi. In the year 1872, Lib, Rattan, Mat Ram, Sang Ram, Haria, Shadi, Chetu, Jiwan and Ram Lal malis were shown in cultivating possession of the said lands. In the record of rights compiled at the settlement of 1909 we find the land forming part of shamilat Pana occupied as follows: Khasra No. 2342 area 6 biswas in occupation of Amin Lal. Khasra No. 2344 area 12 biswas in occupation of Bhag Mal. Khasra Nos. 2343 and 2346 area 15 biswas in occupation of Sangat and Jiwan sons of Singha. Khasra Nos. 2341 and 2347 area 8 biswas in occupation of Khubi. Khasra Nos. 2331 and 2345 area 1 bigha in occupation of Ramji Lal. The whole of this land was shown as chahi or irrigated.

(3.) The land forming part of shamilat Thulla Bahrla was occupied as below: Khasra No. 2324 area 13 biswas in occupation of Ramji Lal recorded as barani. Khasra No. 2325 area 6 biswas in oooupation of Molar Bhown as barani. Khasra No. 2329 area 6 biswas in occupation of Nihala shown as well-irrigated. Khasra No. 2322 area 5 biswas in occupation of the aforesaid Nihala shown as barani. Khasra Nos. 2330 and 2332 area 7 biswas and 5 biswas respectively in occupation of Amin Lal shown as well-irrigated. Khasra Nos. 2323 and 2327 area 4 biswas and 12 biswas respectively in occupation of the a foresaid Amin Lal recorded as barani. Khasra No. 2326 area 6 biswas in occupation of Jiwan and Sangat shown as barani. Khasra Nos. 2333 and 234 area 6 biswas and 11 biswas respectively in occoupation of Khubi shown as irrigated. Khasra Nos. 2321, 2328 and 2335 area 1 bigha 1 biswa, 1 bigha and 1 bigha 3 biswas respectively in occupation of the aforesaid Khubi shown as barani. The land shown as shamilat Bhitarala was occupied as below: Khasra Nos. 2339, 2340, 2348 and 2357 area 1 bigha 11 biswas in occupation of Amin Lal shown as irrigated. Khasra Nos. 2337, 2338, 2349, 2350, 2351, 2354 and 2356 area 3 bighas and 11 biswas in occupation of Khubi shown as irrigated. Khasra Nos. 336 area 1 bigha in occupation of the aforesaid khubi shown as barani. Khasra Nos. 2352 and 2355 each having an area of 6 biswas in occupation of Ramji Lal shown as chahi Khasra No. 2353 area 6 biswas in occupation of Molar shown as chahi. Khasra No. 2358 with an area of 11 biswas in occupation of Nihala and Tuhian shown as chahi With very slight changes the above mentioned lands have been in the occupation of the persons mentioned above or their descendants or collaterals, the defendants being the present occupants of the said lands. The lands that were shown as chahi in the record of rights of the settlement of 1909 continued to be shown as appears from the khasra girdawaris, as irrigated up to rabi 1936. Copies of the khasra girdawaris for the subsequent period have not been produced. However, in the jamabandi for 1943-44 and the khasra girdawaris for 1945 all these lands are shown as barani. It is not disputed that, when irrigated, the lands mentioned above were irrigated from the well in dispute namely, the well in khasra No. 2509.