Lila and others vs Nanu Ram and others

KULDIP SINGH J. (ORAL)

Appellants are aggrieved by the judgment dated 31.1.2011 passed by learned Additional District Judge, Karnal affirming the judgment and decree

dated 31.07.2008 passed by learned Additional Civil Judge (Junior Division), Karnal whereby suit filed by the plaintiffs was dismissed with costs.

Plaintiffs have filed a suit for permanent and mandatory injunction directing the defendants to remove the earth from Killa No. 24/2 and further from

interfering or dismantling and any type of obstruction in water course for smooth running of water in khal from the common well to the fields of

plaintiffs with consequential relief of mandatory injunction directing the defendants to remove all obstruction and obstacles and form khal and not to

put any hindrance in the water course i.e. khal, as detailed in Sizra-aks, site plan and Shartwaj-ul-urj.

The case of the plaintiffs before the trial Court was that there is one cammi (common well ) in Killa No. 20 bearing Khatoni No. 2333 rectan. No.

The said well is used for irrigation purposes by all the co-sharers as shown in ak-sizra. As per the shartwaj-ul-urj, all the co-sharers have a right

to irrigate their fields from this well without any interruption and obstruction from any co-sharer. It was further stated that the water course runs from

North to South i.e., Killa line of Killa No. 16 & 20 and then it turns to Western Side on Killa line between Killa No. 16 & 25 and then Killa line of Killa

No. 17, 24/2 and 24/1. The well is being used by the co-sharers from the time of consolidation and settlement. Plaintiffs have got the right of easement

by way of prescription. Plaintiffs have further claimed that presently they have installed a tubewell in Killa No. 25 and are using its water for

irrigation. On other hand, defendants took the stand that plaintiff No. 4-Kala is not a co-sharer in Khewat No. 1017 and the cammi (common well) in

rectangle No. 246 khasra No. 26 is not in use and there is no well in existence for the last so many years. Therefore, all the co-sharers have installed

their own tubewell for cultivation. It was denied that plaintiffs are drawing water from this well to irrigate the field. The resistance of water course as

alleged was also denied.

From the pleadings following issues were framed: -

i) whether the plaintiffs is entitled to a decree for permanent injunction restraining the defendants from removing the earth from Killa No. 24/2 and

further from interfere and dismantling and any type of obstruction in water course for smooth running of water in khal from the common well to the

fields of plaintiff, if yes to what effect? OPP.

ii) If issue No. 1 is decided in favour of the plaintiffs, whether the plaintiffs is further entitled with a consequential relief of mandatory injunction

directing the defendants to remove all the obstruction and obstacles and from khaal and not to put any hindrance in water course i.e. khaal, detailed in

Sizra-Aks, if yes to what effect? OPP.

iii) whether the suit of plaintiffs is not maintainable in the present form? OPD

iv) Whether the suit of plaintiff is bad for misjoinder and non-joinder of proper parties? OPD

v) Whether the plaintiffs have no locus-standi to file and maintain the suit? OPD

vi) Relief.

The trial Court after examining the evidence of both the parties came to the conclusion that as per Shart-wazib-ul-urz, the co-sharers could take the

water and for this purpose, they could construct the water course on the killa line of the co-sharers. Learned trial Court recorded the finding that all

the co-sharers have now installed separate tubewells and that plaintiffs are not the co-sharer in the particular Khewat as referred to by them.

Therefore, they cannot claim the water course in Killa No. 24/2.

Heard.

After going through the judgments of both the Courts below and examining the record, this Court is of the view that at the first instance, findings have

been recorded that though at the time of settlement (cammi common well) was in existence but now with the changed circumstances, the well is not in

existence and has become redundant. Plaintiffs themselves have stated that they have installed tubewell in Killa No. 25 and are using its water which

itself shows that plaintiffs are not drawing water from the said well, that is why they have installed their own tubewell to irrigate their land.

Moreover, finding of facts have been recorded that plaintiffs are not the co-sharers in Killa No. 24/2. Even as per the Shartwaj-ul-urj, they can made

a water course on the killa line of the joint holding of the co-sharers and not from the other land.

There are concurrent findings of facts recorded by both the Courts below have been recorded and no law point is involved in the present appeal. I do

not find any ground to interfere in the judgments of both the Courts below.

Dismissed.

Since, the main appeal is dismissed, the misc. application pending, if any, also stands disposed of.