Partapa Baru and Others vs Karar Singh and Another

Chopra, J.—This second appeal is directed against the decision of the District Judge, Patiala, decreeing the Respondents'' suit for permanent injunction which had been dismissed by the trial Sub-Judge. The Respondents claimed that their fields Nos. 564 to 568 were irrigated from a well known as Baghwala by means of a channel passing through a field of the Appellants. They alleged that the channel which existed and was being used by them for more than 30 years had been recently dismantled by the Defendants and prayed for its restoration. The Defendants controverted these allegations and categorically denied the existence of any channel passing through their fields. They further pleaded that the Plaintiffs used to get water from wells other than Baghwala. The trial Sub-Judge found that the Plaintiffs had failed to prove their allegations and deciding the only issue framed in the case against them dismissed the suit. The learned District Judge differed from this finding and arrived at the conclusion that one of the fields namely, Khasra No. 568 had been proved to be irrigated since the last settlement from this well and by a channel passing through Khasra No. 576, a field owned by the Defendants. He accepted the appeal and decreed the suit. This is Defendants'' appeal.

As regards the existence of the channel in the Appellants'' field their counsel has very little to say. The Plaintiffs'' share in the Baghwala well and the irrigation of Khasra No. 568 from this well, though specifically denied in the written statement, had to be admitted by the Defendants in their statements in Court. It was further admitted by Partap Singh Defendant that this field was being irrigated from this well since the last settlement i.e., for more than 40 years. The plea subsequently taken by them was that it was being irrigated by a channel which lay on the eastern and southern boundaries of their field No. 576 while the Plaintiffs claimed that it existed on its northern and western boundaries. The dispute therefore centred round the question whether the channel existed on the eastern or the western boundary of Khasra No. 576. The local patwari besides proving the entries in the revenue records'' which showed that Khasra No. 568 was since long being irrigated from Baghwala well stated that he had seen a demolished khal on the western side of Khasra No. 576. He being an independent witness his testimony would obviously carry much weight. The oral evidence produced by the Plaintiffs also supported their case. The solitary witness namely Kirpal Singh examined by the Defendants in rebuttal admitted that he was fighting out a case with one of the Plaintiffs. Otherwise also as remarked by the District Judge he does not appear to be a truthful witness. He tried to deny facts which stand admitted even by the Defendants.

Sardar Tehal Singh has drawn my attention to a remark in the judgment of the trial Sub-Judge regarding certain observations made by him on the spot. What he says in the judgment delivered on 31-1-2003 is that he had inspected the fields in question and had found no signs of any channel in the fields of the Defendants. The counsel, therefore, wants me to discard the evidence of the patwari with respect to what he had stated to have seen on the spot. It may be remembered that the statement of the patwari was recorded long before the Sub-Judge might have inspected the spot and the signs of the khal might have been by then obliterated by the Defendants. I cannot also fail to observe that on going through the whole record I do not find any separate note of the observations made by the trial Judge on his inspection of the spot, nor does the record show as to when did he decide to go there. The Defendants closed their rebuttal on 7-11-2002 and the case wa3 fixed for arguments on 21-11-2002. It had then to be adjourned a number of times to accommodate the counsel or because the Court had no time to attend to this case. The arguments were read on 7-1-2003 and the case was adjourned to 13th and then to 27th and 31st Besakh for pronouncing judgment. The case was finally decided on this last date. The record does not show that the parties ever requested the Court or the Sub-Judge himself expressed his inclination to inspect the spot. There is no indication in any of the interlocutory orders that the spot would be or had been inspected. To say the least this practice of a secret visit to the spot without a request of the patties or without informing them of the Court''s intention and also of keeping no note of the observations made is highly deprecable. To make use in the judgment of certain impressions gathered on the spot without any record thereof is not permissible. I do not know how long before the judgment was written the Sub-Judge was on the spot and how far he could remember what had been seen by him there. The sooner this practice ia put an end to is better.

After a careful consideration of all the evidence on the record, I see no reason to differ from the finding of the District Judge with respect to the continued existence of the Khal on the Northern and Western boundaries of the Defendants'' field No. 576. It is further clear that this khal was used to irrigate Plaintiffs'' field No. 568 only. It cannot, therefore, be denied that the Plaintiffs have acquired by easement a right to irrigate this field No. 668 by means of this channel. As regards the other fields viz. 564 to 567 which adjoin this field there is absolutely no evidence that they were being irrigated by the channel in question; this is not denied even by the counsel for the Respondents.

It is strenuously contended by S. Tehal Singh that an easement in only a right for the beneficial enjoyment of a particular land and is not the absolute right of its owner which he might use for any purpose His argument is that the Plaintiffs cannot make use of the khal for the irrigation of any field other than field No. 568, for which no right of easement has been proved to exist. I see much force in this argument. The definition of easement given in Section 4, Easement Act, makes it clear that it is merely a right for the beneficial enjoyment of the land by its owner. By the constant use of the khal for the irrigation of a particular field no general right was created in the Plaintiffs; the right that they acquired would be limited only to the beneficial enjoyment of that particular field. The Plaintiffs thus would not become entitled to make use of the easement to serve their other fields. Section 21 of the Act which reads as follows makes the matter all the more clear:

An easement must not be used for any purpose not connected with the enjoyment of the dominant heritage.

To clarify the intentions of the Legislature an Illustration has also been added to it which reads as follows:

(a) A, as owner of a farm Y, has a right of way over B''s land to Y. Lying beyond Y, A has Anr. farm Z, the beneficial enjoyment of which is not necessary for the beneficial enjoyment of Y. He must not use the casement for the purpose of passing to and from Z.

This leaves no doubt in my mind that the owners of the dominant tenement in this case cannot claim an easement for the irrigation of their fields other than the one for the beneficial enjoyment of which the easement had been acquired.

Sardar Tirath Singh has referred me to Section 23 of the Act and stresses that the dominant owner can alter the mode and place of enjoying the easement, provided, he does not thereby impose any additional burden on the servient heritage. He contends that by using the khal for the irrigation of the other fields he would not impose any additional burden on the servient heritage because he had only a specified share in the well and he could not take water in excess of it. He further argues that the other fields only adjoin the dominant tenement and therefore it was no concern of the Defendants whether the water was taken to one field or the other so long as it did not impose any extra burden on the servient heritage. I, however, do not see any force in this contention. It is not a question of mode and place of enjoying the easement. The section and the illustration added to it make it clear that it has no application to the facts of this case. It lays down the limitation of an easement right from the standpoint of the dominant owner by allowing him latitude to change the mode and place of the exercise of easement provided he does not thereby impose any additional burden on the servient heritage. It does not give him the latitude to make use of the easement for any purpose not concerned with the enjoyment of the dominant heritage. The dominant tenement in this ease is only field No. 568, and even if the Plaintiffs be entitled to change the mode and place, subject of course to the limitations provided by Section 23, of irrigating that field through the Defendants'' field they have no right to utilise this easement for the enjoyment of their other fields. That surely would mean the use of it for purposes not connected with the enjoyment of the dominant heritage and this is definitely prohibited by Section 21.

Sardar Tirath Singh wants to support the judgment of the District Judge on the ground that this plea had not been specifically taken by the Appellants in their written statement and that it should not be allowed to be raised in this appeal, particularly when it had bean disallowed for that very reason by the District Judge. I do not feel inclined to agree with him or the District Judge on the point. It was for the Plaintiffs to allege in the plaint the grounds on which they claimed a right to irrigate their fields (Nos. 564 to 567) from the well by the khal in question. What they stated therein was that these fields also like field No. 568 were being irrigated by means of this khal. This allegation which was categorically denied by the Defendants, has been found to be totally false by both the Courts below. It may be remembered that the trial Court dismissed the suit on the ground that the Plaintiffs had failed to prove a right of easement. The District Judge differed from this finding only so far as field No. 568 was concerned and allowed the right with respect to other fields with the following remarks at the close of his judgment:

When the Plaintiffs have established their right to continue this Khal for irrigation of field No. 568, the Defendants could have no objection to continuation of the irrigation through the same field in the next adjoining field.

No reasons for coming to this conclusion were given by him and the objection of the Defendants that the khal could not be so used was repelled on the ground that the plea was being taken for the first time in appeal. The finding, as observed already, is not warranted by the Easement Act and cannot be supported on any other ground. The argument that the objection amounted to taking up a new plea in appeal is also devoid of any force. The Plaintiffs themselves took up a wrong position; they did not come to Court with the plea that they were entitled to irrigate those fields because they adjoined field No. 568 for which they had acquired a right of easement. In fact, it were the Plaintiffs who were making out a new case on appeal which should not have been allowed. I have therefore, no hesitation to hold that the Defendants were perfectly justified in taking up the objection before the District Judge and also in this appeal. The decree of the District Judge so far as it relates to fields Nos. 564 to 567 cannot consequently be maintained and the same as regards field No. 568 must be affirmed.

In the result the Plaintiffs are held to be entitled to irrigate their field No. 568 and not the other fields (Nos. 561 to 667) by means of the khal in question. With this modification the decree given by the District Judge is maintained and the appeal is dismissed. In view of the peculiar circumstances of the case, the parties are left to bear their own Costs.