Balbir Singh vs Lakshmi and Others

Rakesh Kumar Garg, J.—This is defendant''s second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for permanent injunction restraining the defendants to dig out a water course through his land as detailed in the suit was decreed partly and order dated 21.4.2004 passed by the Divisional Canal Officer was set aside.

Briefly stated, the facts of the case are that the plaintiff is the owner in possession of land measuring 8 Kanals of Killa No. 1 and Killa No. 10 measuring 10 K-7 M of Rectangle No. 260. as per the averments, there has never been any water course on the northern side of Killa No. 1 of Rectangle No. 260 on outlet RD 20145/TL Sahu Minor in Village Kinala, Tehsil and District Hissar. The defendant No. 3 with the intention to harm the plaintiff filed an application before SDO, Water Services Sub Division, Uklana stating that he had given a water course between Killa No. 10 and 1 of Rectangle No. 260 and he be allowed to irrigate his land through this water course. SDO Uklana inspected the spot and examined the record and held that there was never any water course in the boundary line of killa No. 1 and 10 of Rectangle No. 260 on outlet RD 20145/TL Sahu Minor at village Kinala and rejected the application of defendant No. 3. He filed an appeal before the Divisional Canal Officer, Tohana who vide his order dated 21.4.2004 (Ext.P1) ordered to restore the water course.

In this suit, the said order has been challenged on the ground that no water course has been sanctioned under the provisions of law. Neither the same was given by agreement of the parties nor the same were in existence by easement. In fact the said water course was never in existence at the spot. The order is vague, ambiguous and non-speaking. On this ground, the present suit was filed.

Upon notice, defendant Nos. 1 and 2 did not appear despite service and therefore, they were proceeded against ex parte. Defendant No. 3 appeared and filed written statement alleging therein that there is a water course in Killa No. 260/1 on its northern side since the time of the forefathers of the defendant and the same is being used by the defendant for irrigating the land from the outlet RD No. 20145/TL Sahu minor. The water course was illegally dismantled by the plaintiff and the same was restored at site on 29.5.2004 with police help in execution of order dated 21.4.2004 passed by Divisional Canal Officer, Tohana. It was further alleged that the canal authorities have rightly restored the water course u/s 24 of the Canal Act on the basis of order dated 21.4.2004. It was also alleged that in fact the water course restored by Canal Authorities is a sanctioned one and comes in the definition of water course. All other allegations were denied and dismissal of the suit was prayed for.

After evaluating the evidence, the trial Court decided issue No. 1 in favour of the plaintiff holding that the defendant had not been able to establish that the water-course in question was a sanctioned water-course and decreed the suit of the plaintiff-respondent partly and set aside the order dated 21.4.2004 passed by the Divisional Canal Officer.

Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the defendant filed an appeal, which was dismissed by the Additional District Judge, Hissar vide impugned judgment and decree dated 5.5.2008.

Still not satisfied, the defendant has filed the instant appeal challenging the judgment and decrees of the courts below in this Court.

Learned Counsel for the appellant has vehemently argued that it has been proved on the file of the case that the water course which was illegally dismantled by the plaintiff-respondent had existed and was running on the spot in the joint holding of the parties for irrigating the land of Killa Numbers which had come in possession of the appellant and in view of these facts and circumstances, the water course was rightly ordered to be restored u/s 24 of the Canal Act.

It has been further argued by him that there was no need to gel the disputed water course sanctioned for the reason that the khewat was joint. Learned Counsel has also argued that the suit filed by the plaintiff-respondent is not maintainable as civil court jurisdiction is barred u/s 25 of the Haryana Canal and Drainage Act, 1974. Hence the impugned judgment and decrees of the courts below are liable to be set aside.

On the other hand, learned Counsel appearing on behalf of the respondent has supported the findings of the Courts below and has argued that no substantial question of law arises in this appeal and a concurrent finding of fact, has been recorded in favour of the plaintiff-respondent by the courts below that there existed no sanctioned khall as alleged under the provisions of Haryana Canal and Drainage Act, 1974.

I have heard learned Counsel for the parties and perused the record. Admittedly, the stand taken by the appellant in his written statement is that the water course in question is sanctioned under the provisions of Haryana Canal and Drainage Act, 1974, whereas his stand is belied from the testimony of DW1 who stated that the water course was not sanctioned u/s 17 of the Canal Act. Thus the order dated 21.4.2004 Ex.Pl passed by the Divisional Canal Officer cannot be said to be passed in accordance with the provisions of the Act as before passing such an order, it was required that the water course was either sanctioned one or was in existence under agreement or by prescription or the same was temporary water course running not less than six moths prior to the demolition. However, this is not the case of the appellant as his case is specific that the water course was sanctioned one which is factually incorrect. Further argument of the counsel that he was using the said water course for a long time and therefore, he is entitled to use the same is also liable to be rejected as there is no agreement between the parties that the aforesaid alleged water course shall remain in existence and the appellant will be entitled to use of the same.

The next argument of the counsel for the appellant that jurisdiction of the civil court is barred as the plaintiff-respondent had specific remedy u/s 20(3) of the Haryana Canal and Drainage Act is also without any merit. u/s 20 of the Haryana Canal and Drainage Act, 1974, an appeal lies against the decision of the Divisional Canal Officer only on an order passed u/s 18(2) of the said Act and the impugned order has not been passed under these provisions. Moreover, u/s 20(3) of the Canal Act, power of revision with the canal authorities is suo moto and the same cannot be said to be an effective alternative remedy. The bar of Section 25 of the Haryana Canal and Drainage Act will also not apply in this case as u/s 24 of the Act, restoration of a sanctioned water-course can be ordered only, whereas, in the present case, a finding of fact has been recorded that khal in question was not a sanctioned one. Thus, the order dated 21.4.2004 was without jurisdiction and the bar of Section 25 of the Canal Act will not apply in the present case.

For the reasons recorded above, I find no merit in this appeal.

No substantial question of law arises.

Dismissed.