Taj Singh v. Gurdial Singh

This is an appeal directed by the plaintiff-appellant against the judgment dated 22.03.2010 passed by Shri J.S.Klar, District Judge, Muktsar vide which appeal preferred by the plaintiff-appellant against the judgment dated 03.01.2009 passed by Shri A.S.Shergill, Civil Judge(Junior Division), Malout, was dismissed. Taj Singh-appellant filed a suit for permanent injunction restraining the defendants from demolishing water course existing in the land of plaintiff, as detailed in the plaint, as per Warabandi situated in village Srawan Bodla, Tehsil Malout, District Muktsar by methods others than due process of law. R.S.A NO.2420 OF 2010 -2- The case of the plaintiff shorn of unnecessary detail is that he is owner in possession of the suit land. Water course is in existence in the land of plaintiff for the last more than 30 years fully shown in the Warabandi. The defendants are owners of the adjoining land to the said water course. The parties have been irrigating their respective land from the said pucca water course. The plaintiff has no other water course to irrigate his land. There is a sanctioned outlet on the water course in existence. The defendants are trying to demolish the said water course forcibly and without any right. Upon notice, defendants filed written statement taking preliminary objections that the suit is not maintainable as the plaintiff has other efficacious remedy under the Northern India Canal and Drainage Act, 1873 (hereinafter referred to as “the Act”). On merits, it was pleaded that no water course exists in the said land. The plaintiff has no personal right and interest in the water course and has not contributed in its construction. The suit is barred under the provisions of Section 30 of the Act. The plaintiff has concealed material facts from the Court. Earlier the land of parties was irrigated through common outlet No.4515-L of Malookpur minor. Thereafter, there was split of outlet and new outlets No.5600-L and 7600-L came in existence. The plaintiff's land is being irrigated from outlet No.5600-L whereas land of defendants is being irrigated from outlet No.7600-L. The land of one outlet cannot be irrigated through the water course of other R.S.A NO.2420 OF 2010 -3- outlet. At the time of splitting of the outlet, the co-sharer had undertaken to arrange own water course. Now the plaintiff is trying to create hurdle in the irrigation channel of the defendants. In replication the contents of written statement were denied and that of the plaint were reiterated. From the pleadings of the parties, following issues were framed by the trial Court : 1) Whether the plaintiff is owner in possession of land in dispute ? OPP 2) Whether the plaintiff is entitled to permanent injunction prayed for ? OPP 3) Whether the suit is not maintainable in the present form ? OPD 4) Whether the suit is barred under the provisions of Section 30 of the Northern India Canal and Drainage Act ? OPD 5) Relief. In order to prove his case, plaintiff himself appeared as PW-1, Joga Singh as PW-2 and Amrik Singh as PW-3. On the other hand, defendant No.1 appeared as DW-1 and also examined Vipan Kumar, Halqa Kango as DW-2 and tendered certain documents. The learned trial Court has taken up Issues No.1 and 2 together and returned the findings of both these issues in favour of the defendants and against the plaintiff. Issues No.3 and 4 were decided against the defendants. R.S.A NO.2420 OF 2010 -4- In view of findings on Issues No.1 and 2, the suit of plaintiff was dismissed. Feeling dissatisfied with the above said judgment, the plaintiff preferred Regular First Appeal which was heard and dismissed by District Judge, Muktsar vide judgment dated 22.03.2010. Feeling dissatisfied with the judgment dated

03.01.2009 passed by Civil Judge (Junior Division), Malout and judgment dated 22.03.2010 passed by District Judge, Muktsar, the present regular second appeal has been preferred. The appellant in para No.11 of the grounds of appeal has mentioned that the following substantial questions of law have arisen in the present appeal : 1) Whether jurisdiction of civil Court can be barred under Section 30 of the Northern India Canal and Drainage Act especially when the alleged Act on the part of the respondents of dismantling the water course is proved ? 2) Whether the respondents can perform the duty of the canal authorities by demolishing the water course in question ? Learned counsel for the appellant has submitted that water course in dispute is in existence at the spot and the same has been dismantled by the defendants. The defendants have no authority to dismantle the water course. The jurisdiction of the civil Court cannot be said to be barred by Section 30 of the Act in R.S.A NO.2420 OF 2010 -5- as much as the defendants have no right to dismantle the water course leading to the fields of plaintiff-appellant. The respondent cannot perform the duty of canal authorities in demolishing the water course in question. So prayer has been made for acceptance of the appeal. I have carefully considered the submissions made by learned counsel for the appellant and have gone through the records of the case. From the submissions made by learned counsel for the appellant and by framing the above said substantial questions of law, it is crystal clear that the water course for which injunction has been sought, is not in existence. The case of the plaintiff set forth in the plaint is that outlet No.4515-L irrigates the fields of plaintiff-appellant and water course is there. The case of the defendants is that the said water course has been split and two new outlets No.5600-L and 7600-L have came into existence under the orders of canal authorities and drainage department. Both the Courts below have given a concurrent finding that outlet No.4515-L has been split into two outlets No.5600-L and 7600-L. The water course 5600-L is used by the plaintiff to irrigate his fields whereas out No.7600-L is meant to irrigate the fields of defendants. That being a finding of fact cannot be interfered. The fact that outlet No.4515-L is not in existence has not been denied by the appellant in as much as by taking the stand that water course meant for outlet No.4515-L has been demolished. The R.S.A NO.2420 OF 2010 -6- canal and drainage department has sanctioned different outlets to all the land owners for irrigating their land. Section 30 of the Act lays down that the civil Court has no jurisdiction. No doubt the civil Court can only have the jurisdiction in case the canal authorities overstep their jurisdiction or do any illegal act. There is nothing on the file that the canal authorities have overstepped their jurisdiction vested in it or has done anything illegal. Different outlets have been provided to plaintiff and defendants which would rather help the parties to irrigate their land effectively. So, in these circumstances, both the above said substantial questions of law stands answered against the plaintiff-appellant, as discussed above. Consequently, the appeal is without any merit and the same stands dismissed. JULY 05, 2010 shalini (K. C. PURI) JUDGE