Jagannath Singh vs Munshilal and Others

Rampal Singh, J.—The defendant-applicant, aggrieved by the order dated 23-11-1981, passed by the Additional District Judge, Sheopur, has preferred this revision u/s 115 of the Code of Civil procedure.

The plaintiff non-applicants, Munshilal, Badshah, Garsingh and Chandan singh, filed a suit that the well situate in Survey No. 3061 of village Rajoudha has become a public well after the abolition of Zamindari. The fact that this well isa public well is recorded in the revenue papers. Village Orthi-Ka-Pura is situated near this well for the last 25 years and the people of this village use water of this well for drinking purposes and for use of the cattle of the village. In the plaint, the Judgment proceeded that defendant has installed an electric-pump and has started extracting water, due to which the possibility is that this well may ultimately go dry and the drinking water may not be available to the villagers.

The applicant-defendant controverted the facts contained in the plaint and denied that this well was used for public purposes. He claimed that it is his personal property; this well was dug and erected by his father, Gajadhar-singh solely for the purpose of using its water for agricultural purposes.

The plaintiff-non-applicants also filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure, for restraining the defendant-petitioner from extracting water by means of an electric pump from the well.

The trial Court by its impugned order dated 23-11-1981 passed a temporary injunction in favour of the plaintiff-non-applicants and restrained the defendant-applicant from extracting water by means of an electric pump from this well for irrigation purposes. Aggrieved by this order, the defendant-applicant has invoked the revisional jurisdiction of this Court.

The order passed by the trial Court is based upon the fact that the public may not be inconvenienced due to extraction of water for irrigation purposes. According to the defendant-applicant, if this well is a public well, then the plaintiffs should have filed the suit under Order 1, rule 8 of the CPC. The defendant has further submitted that by passing this temporary injunction, the suit of the plaintiff has virtually been decreed and there remains nothing now to be done any more. He has further submitted that there is no allegation of water-shortage or any inconvenience being caused to the public or cattle in the plaint.

I have anxiously gone through the record. It would be just and proper not to restrain the defendant applicant altogether from use of the water at this stage of the suit. In order to see that there may not be shortage of drinking water, it would be just to order that the defendant may extract water for the purpose of irrigation from 12.00 to 2.00 in the noon. I think, the Public shall not be inconvenienced and there shall be no birth of water in the well. Generally, village people extract water from the well either in the morning or in the evening, hence the defendant, if takes water between 12.00 to 2.00 in the day for agricultural purposes, in the evening there shall be sufficient water in the well, left for the use of public and the cattle of the village.

I, therefore, order that the impugned order passed by the trial Court be modified to the extent that except between 12.00 to 2.00 in the noon at day time, the defendant shall not extract water by means of his electric pump till final adjudication of the suit. With this modification, the revision is partly allowed and the case is sent back to the trial Court to expedite the final disposal of the case. However, there shall be no order as to costs.