Hoshiara and others vs Lakshmi Narain and others

S.S. Dewan, J.

This second appeal by the defendants is directed against the judgment and the decree passed by the Senior Sub Judge with Enhanced Appellate Powers, Sonepat, dated October 4, 1976, whereby he accepted the appeal and reversed the judgment of the trial Court dismissing the plaintiffs'' suit.

The plaintiffs, claiming themselves to be the owners of the suit land and in possession thereof, brought a suit for injunction restraining the defendants from constructing a water course in their land. It was pleaded that the defendants in order to irrigate their land comprised in Khasra Nos. 28/1, 10, 11, 20 and 21/2, wanted to dig a water course along the boundary line of the land of the plaintiffs to which they had no right to do. It was alleged that there was a sanctioned water course along Killa No. 34/5/1 and other land and that there was no private agreement between the parties for running the water through the water course along the land of the plaintiffs. The suit was contested by the defendants on various pleas. It was pleaded by them that the water course along the land of the plaintiffs was in running condition even prior to the consolidation of holdings and the plaintiffs had agreed for the use of the same and that they (defendants) had also acquired a right of easement to run the said water course. On the pleadings of the parties, several issues were framed by the trial Court. The parties led evidence on those issues. The trial Court while relying on a Single Bench decision of this Court in Umed Singh v. State of Haryana, 1970 PLJ 503 found that even temporary water courses are covered by the Northern India Canal and Drainage Act and the Irrigation Department is competent to restore the same. In view of this finding, the trial Court held that the plaintiffs were not entitled for the injunction prayed for and accordingly dismissed their suit. Feeling aggrieved from the judgment and decree of the trial Court, the plaintiffs preferred an appeal which was heard by the Senior Sub Judge, Sonepat, with Enhanced Appellate Powers who upset the findings of the trial court, on Issue Nos. 4 and 6. Consequently, the appeal was allowed, the judgment and decree of the trial Court was set aside and the injunction as prayed for was granted in favour of the plaintiffs. Feeling dissatisfied from the judgment and decree of the first appellate Court, the defendants preferred R.S.A. No. 1750 of 1976 in the Court.

The contention raised before me by the learned counsel for the defendant appellant is that the lower appellate Court has gravely erred by reversing the wellconsidered findings of the trial Court under Issues Nos. 4 and 6 and that the law laid down in a Division Bench decision of this Court in Jagar Singh v. Superintending Canal Officer, 1972 PLJ 147 has been misconceived and misapplied in the present case. I regret my inability to accept this contention of the learned counsel.

The argument laboured with little persistence on behalf of the defendants is that Section 30FF of the Northern India Canal and Drainage Act applies to all types of water courses and its application is not restricted only to sanctioned water course. Reliance is placed on a decision of this Court in Umed Singh''s case (supra) but this decision stands overruled by a Division Bench of this Court in Jagar Singh'' case (supra). In Jagar Singh''s case it was held that Section 30FF contemplates only three types of water courses, i.e., (a) sanctioned by law, (b) sanctioned by agreement between the parties, and (c) which have been prescribed by way of easement. It has been further held that if any person takes water through another man''s land, the other man has the right to stop the flow of water through his land thereby committing no offence within the meaning of Section 30FF. It is only when the water is stopped in the case of water courses of the three types already mentioned that Section 30FF will come into play. Therefore, a water course which does not answer the description of the water course set out above will surely fall outside the ambit of Section 30FF. The Division Bench decision of this Court in Jagar Singh''s case (supra) fully applies to the facts and circumstances of this case. It is nowhere held by the trial Court that the water course in question was either sanctioned one or it was on the basis of some agreement between the parties or that the defendants acquired any right of easement to pass water therefrom. In this view of the matter the lower appellate Court was right in its conclusion that the defendants could not take their water through the water course along the boundary line of the land of the plaintiffs and if the latter demolished the said water course they were well within their right to do so and the order of the Canal Department restoring the water course was without jurisdiction and the Civil Court had the jurisdiction to grant the relief prayed for by the plaintiffs. I find no reason to interfere with the findings of the lower appellate Court.

The appeal is devoid of any merit and is hereby dismissed but in the peculiar circumstances of the case, there will be no order as to costs.