Kameshwar and Others vs The Collector, Mandi, District Mandi H.P., Assistant Engineer, I and PH Sub Division, Gohar, District Mandi (HP) and Jethu

Dev Darshan Sud, J.—The petitioner challenges the order passed by the learned Fast Track Court, Mandi in appeal against the order dated 30.3.2011 passed by the learned Civil Judge, (Junior Division), Chachiot in the pending suit titled: Kameshwar & others vs. The Collector, Mandi & others.

The plaintiffs/petitioners herein had preferred an application under Order 39 Rules 1 and 2 read with Section 151 of the CPC praying for an interim injunction against the respondents on the ground that the plaintiffs petitioners had instituted a suit for declaration and injunction restraining the defendants from taking water by constructing any channel in Khasra No. 341. They urged that the flour mill of the plaintiffs and defendant Nos. 2 and 3 existed in Khasra No. 340 in Mohal Thachi. Khasra No. 341 is a Kuhal (water channel) recorded in the name of defendant No.2. They challenged this entry on the ground that they are joint beneficiaries of the user of this water alongwith defendants since the time of their fore-fathers etc. The application for grant of interim injunction was contested on a number of grounds. The learned trial Court dismissed the application and that decision, as noted above, was challenged in appeal.

The learned Appellate Court notices that even if certain facts which are yet to be proved on record by evidence are considered in favour of the plaintiffs, the first defendant which is the State has constructed a Pump house for supplying water to the villagers situated at higher altitude and it is in the larger public interest which should prevail. At this stage, it would not be in the fitness of things to grant a temporary injunction in favour of the plaintiffs.

In reply to the petition instituted in this Court, the State on the affidavit of the Assistant Engineer Irrigation & Public Health Sub Division, Gohar, Division Sundernagar, District Mandi, has made a specific statement that the Department is willing to construct pucca (concrete) channel for flow of water through Khasra No. 341 and that after dismissal of the application for temporary injunction by the learned Civil Judge (Jr. Division) the construction of Pump house has been made and the building of pump house is about 90% complete.

In these circumstances, I do not find any illegality in the order passed by the Courts below. This Court is also informed that the case is now fixed for the evidence of plaintiffs in the month of January, 2012.

Learned counsel appearing for the petitioners has made a number of submissions touching the legality of the order primary being that the revenue record has not been considered by the learned Courts below and that according to that record, it is the plaintiffs who are entitled to the user of water from that channel for the purpose of running their flour mill and that State cannot acquire/take over the land of the plaintiffs without resorting to the provisions of the Land Acquisition Act. Be that as it may, these issues would be dealt with by the learned trial Court, if so pleaded or settled, in the pleadings before it. At this stage, looking to the balance of convenience and the averment made by the State that they are willing to construct a water channel, which would supply unhindered water to the plaintiffs, I do not find any merit in this petition, which is accordingly dismissed. Two Courts below having held against the plaintiffs, this Court has no jurisdiction to upset the judgment unless there is some perversity in the record which I do not find. Petition stands dismissed,