Bahadar and Others vs Partap and Another

Mehinder Singh Sullar, J.—The conspectus of the facts, relevant for a limited purpose of deciding the core controversy involved in the

present appeal and emanating from the record, is that Partap and Suresh sons of Birma Ram respondent-plaintiffs (hereinafter to be referred as

the plaintiffs"") filed the suit for a decree of permanent, mandatory and prohibitory injunction restraining Bahadar and others appellant-defendants

(hereinafter to be referred as ""the defendants"") from creating any hurdle by filling earth etc. and from forcefully demolishing the watercourse existing

on the northern boundary (dole) of the land depicted in the plaint.

The case set up by the plaintiffs, in brief, in so far as relevant, was that they and other co-sharers are irrigating their land as per arrangement

(warabandi No. 52) on outlet No. RD 11890-L Banmandori Minor through the sanctioned watercourse existing on the northern side of the

boundary of the indicated land. Thereafter, they are irrigating their land through this watercourse, vide warabandi at Serial No. 36 re-scheduled on

23.3.2004, but the defendants threatened to demolish it, without any legal right. The sanctioned watercourse in question is stated to be an old

watercourse and is running since 22.10.1966. Concisely, according to the plaintiffs that they are irrigating their land through the sanctioned

watercourse, as per arrangement (warabandi No. 36), but the defendants intend to disturb their irrigation/arrangement in this regard. On the basis

of the aforesaid allegations, the plaintiffs filed the suit seeking a decree for permanent, mandatory and prohibitory injunction against the defendants,

in the manner described here-in-above.

The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit,

locus standi of the plaintiffs and jurisdiction of Civil Court. The defendants claimed that the land mentioned in the plaint has never been irrigated

from the watercourse in question, but was being irrigated from the pacca watercourse, existing towards its southern side, which was constructed

by the H.S.M.I.T.C. after framing scheme, vide order dated 10.2.1977 passed by the Divisional Canal Officer. The case of the defendants further

proceeds that as the dispute in question, pertaining to the sanctioned watercourse, falls under Sections 24 and 25 of the Haryana Canal and

Drainage Act, 1974 (for short ""the Act""), therefore, the jurisdiction of Civil Court is barred. According to the defendants, the watercourse, existing

on the western side of the land bearing Khasra No. 80/8, 13 and 18, is their personal watercourse for irrigating their own land and this

watercourse is connected with the sanctioned watercourse during consolidation. The watercourse in dispute, mentioned in the plaint by the

plaintiffs, is not in existence at the spot and they (plaintiffs) have no legal right over the same. Succinctly, the defendants claimed that the disputed

watercourse is their personal watercourse. They dug out the same as per their necessity and after its use demolished it. The plaintiffs have no

concern with it. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and

prayed for dismissal of the suit.

The trial Court having decided the preliminary issue ""Whether the suit is maintainable in the present form? OPP Parties"" dismissed the suit of

plaintiffs, by virtue of judgment and decree dated 17.5.2006.

Aggrieved by the judgment and decree of the trial Court, the plaintiffs filed the appeal. The first appellate Court accepted the appeal, set aside

the judgment and decree and remanded the case back to the trial court for its fresh decision, vide impugned judgment dated 30.11.2007.

The appellant-defendants did not feel satisfied with the impugned judgment of first appellate Court and filed the present appeal. That is how, I

am seized of the matter.

Having heard the learned Counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the

entire matter, to my mind, as the impugned judgment of Ist Appellate Court cannot legally be sustained, therefore, the appeal deserves to be

accepted, for the reasons mentioned here-in-below.

The bare perusal of the record would reveal that the trial Court appointed the Local Commissioner to visit the spot. Taking into consideration

the report dated 6.12.2005 of Local Commissioner, the trial Court acknowledged that there is nothing on record to show that any watercourse, as

claimed by the plaintiffs, was in existence even at the time of institution of the suit. Therefore, the Civil Court lacks jurisdiction and dismissed their

suit, being not maintainable. The main grounds, which appear to have been weighed with the first appellate Court in remanding the case are that (i)

question of maintainability and jurisdiction of Civil Court is the mixed question of law and facts; (ii) it is essential to reach the conclusion whether

the watercourse was in existence and (iii) whether the turn (warabandi) for irrigating the land of the plaintiffs was fixed or not?

Above being the position on record, now the sole question, that arises for determination in this appeal, is as to whether the first appellate Court

was legally justified in remitting the case back to the trial Court or not?

Having regard to the rival contentions of learned Counsel for the parties, relatable to the material on record, to me, the first appellate Court has

slipped into deep legal error in this relevant connection.

Ex facie, the argument of the learned Counsel for the appellant-defendants that the Civil Court has got no jurisdiction, has considerable force

and the contrary celebrated argument of the learned Counsel for the respondent-plaintiffs that since the Civil Court has got the jurisdiction to

decide the suit of the plaintiffs, so, the first appellate Court has rightly remanded the case back to the trial Court for its fresh decision, is neither

tenable nor the law laid down by this Court in case Gugan and Anr. v. Sultan Singh and Anr. 1982 P.L.R. 270 is at all applicable to the facts of

this case, wherein, while deciding the civil revision in an injunction matter, it was observed that ""if the watercourse is lawful/authorized, then

certainly the Canal Authorities will have jurisdiction u/s 24 of the Act and Civil Court will have no jurisdiction to go into the matter in view of

Section 25 of the Act, but if an order of restoration of unauthorized watercourse is made, then the Civil Court would be competent to entertain the

suit."" Possibly, no one can dispute with regard to the aforesaid observations, but to my mind, the same would not come to the rescue of the

plaintiffs in the instant case.

As is evident from the record that as per the pleaded case of the plaintiffs, the watercourse in question was the sanctioned/authorized

watercourse, they and other co-sharers are irrigating their land as per serial No. 52 through its outlet No. RD 11890-L Banmandori Minor since

22.10.1966 continuously. It has been specifically reiterated by the plaintiffs that now new serial No. 36 has been assigned, as per the existing

arrangement/warabandi dated 23.3.2004. Meaning thereby, even as per own showing of the plaintiffs, the indicated watercourse in question is

sanctioned and authorized watercourse.

Section 25 of the Act postulates that ""notwithstanding anything contained in this Act or any other law for the time being in force, no Civil Court

shall have jurisdiction to entertain or decide any question relating to matters falling under Sections 17 to 24."" Section 24 posits that ""if a person

demolishes, alters, enlarges or obstructs a watercourse or a temporary watercourse or causes any damages thereto, any person affected thereby

may apply to the Sub-Divisional Canal Officer for directing the restoration of the same to its original condition."" The procedure of adjudication of

such dispute has been provided under Sub-sections 2 to 5 of Section 24 of the Act. The watercourse has been defined in Section 2(15) to mean

any channel including all its subsidiary works which is supplied with water from a canal, but not maintained at the cost of the State Government,

and is sanctioned under this Act or is in existence under an agreement or by prescription. A co-joint reading of these provisions would reveal that

the grievance of the plaintiffs falls within the ambit and four corners of Section 24 of the Act and the authorities under the Act are competent to

restore the watercourse in question.

As discussed here-in-above, in the present case, once it is proved that the watercourse in question is sanctioned watercourse, in that

eventuality, the authorities under the Act are competent to its restoration and to redeem any other related grievance of the aggrieved party in this

relevant context as envisaged u/s 24 and the jurisdiction of the Civil Court is explicitly barred as contemplated u/s 25 of the Act.

In this manner, to me, the first appellate Court has illegally ignored the provisions of the Act and committed a legal error in remanding the case

back to the trial Court in a routine fashion, without adhering to the real controversy between the parties. Therefore, the contrary arguments of the

learned Counsel for the respondent-plaintiffs ""stricto sensu"" liable to be and are hereby repelled and the impugned judgment of first appellate Court

deserves to be and is hereby set aside in the obtaining circumstances of the case.

No other legal point, worth consideration, has either been urged or pressed by the learned Counsel for the parties.

In the light of aforesaid reasons, the instant appeal is hereby accepted. The impugned judgment dated 30.11.2007 of first appellate Court is set

aside. It is held that the Civil Court has got no jurisdiction to entertain the suit and the order of the trial Court is restored.

Needless to say that the plaintiffs would be at liberty to approach the authorities under the Act to redress their grievance in this relevant behalf.