Mt. Dulhin Shyam Sunder Kuer and Others vs Mt. Bibi Qasiman and Others

Dawson-Miller, C.J.—Two questions arise for decision in this application. One is as to the value of the subject-matter on appeal to His Majesty in Council and the other whether there is substantial question of law for determination in the appeal to His Majesty in Council.

The dispute between the parties arises from a claim to the rights of water running through an artificial channel on the plaintiffs'' land from one point to another and thence on to the defendants'' land. On the plaintiffs'' land there appears to be an ahar along the northern limit of which the artificial water-course runs. They claim that in order to fill the ahar during the rainy season they are entitled to block up the channel at a point to the north of the ahar on their own land until the ahar is flooded and only after that must they remove the obstruction and allow the water to flow through the rest of their land and eventually to that of the defendants. The defendants, on the other hand, contend that the plaintiffs are not entitled to block up that channel for the purpose of filling their ahar, or reservoir, on their own land but only in the event of the water in any season rising high enough to overflow the embankment can the plaintiffs expect to have their ahar filled.

The plaintiffs, the petitioners before us today, contend that the questions involved in this decision are questions of law or at all events mixed questions of law and of fact The facts although perhaps somewhat meagre upon which to arrive at a decision in a case of this sort have been found by the lower Court and the law applying to such facts has been applied by the High Court on appeal. As a rule, I think, it may be said that the majority of cases between riparian owners as to the right to water in a channel give rise to questions of law or at all events to mixed questions of law and fact. There are, no doubt, exceptions but in the present case it seems to me that it is sufficient to say that we consider the questions are such that it is impossible to avoid the conclusion that they are at least mixed questions of law and fact. In so far as that part of the application is concerned I think we ought so to decide.

With regard to the other point, namely the value of the subject-matter on appeal it is quite true that the plaintiffs in their plaint valued the relief claimed at Rs. 2,500. At the same time they are claiming damages from year to year varying in amount and we are informed that from the year 1328 to the year 1335 the damages claimed amount to Rs. 9,600 but the question for determination in a case of this sort is whether this is a case within para. 2, Section 110, Civil P.C. Para. 2 of that section relates not only to claims to property of Rs. 10,000 in value but to questions respecting property of the like amount and there is no doubt that that part of the section was introduced to cover claims relating to property of considerable value where the actual value of the relief claimed can only with difficulty be assessed, for instance, in cases where an injunction is sought regarding dealing with certain valuable property or in a case like the present where the rights of irrigation are sought by one side and denied by the other in the case of a village of very considerable area.

In the present case the value of the village is said to be Rs. 80,000 and I have no hesitation in arriving at the conclusion that the value of this important claim to the rights of irrigation ought to be considered as at least of the value of Rs. 10,000. The usual certificate will issue that the case complies with the provisions of Section 110, Civil P.C. The appellants are entitled to the costs of this application which has been opposed. Hearing fee five gold mohurs.

Adami, J.

I agree.