IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.420/1999 Decided on:7.4.2009 Rama Nand. …Appellant. Versus Gauri Datt. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellant : Mr. R.K. Gautam, Senior Advocate with Ms. Archana Dutt, Advocate. For the Respondent : Ms. Aruna Chauhan, Advocate vice Mr. Ramakant Sharma, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 31.8.1999 passed by the learned Additional District Judge, Solan in civil appeal No. 47-S/13 of 1997. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for mandatory injunction against the respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake). The case of the plaintiff in brief is that there is a defined water channel known as “Chille Ki Kuhl”, which emanates from 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 “Chille Ki Khud” and runs from the land of the defendant and ultimately reaches to the land of the plaintiff comprised in Khasra No. 1371. It is further averred that the defendant has blocked the channel by dumping Malwa. The suit was resisted and contested by the defendant. The trial court dismissed the suit on 19.4.1997. The plaintiff preferred an appeal before the learned Additional District Judge, Solan. He dismissed the same on 31.8.1999. This Regular Second Appeal was admitted on the following substantial questions of law: 1. “Whether the lower appellate court has failed to decide all the pleas taken by the appellant in appeal? 2. Whether the courts below have failed to make compliance of the mandatory provisions of order 18 rule 18 C.P.C.? Mr. R.K. Gautam, Senior Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable. He has further argued that both the courts below have misread the evidence led by the parties. Ms. Aruna Chauhan, Advocate has supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. Since both the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. PW-1 Rama Nand has deposed that he is owner of land comprised in Khasra Nos. 1382, 1376, 1371 and 1394. These khasra numbers are irrigated by a Kuhl. He has further deposed that khasra number of the Kuhl is 1378. He has tendered in evidence the copies of Jamabandi Ex.PW-1/A to Ex.PW-1/C. He then stated that “Chille-Ki-Kuhl” emanates 3 from “Chille-Ki-Khud” and passes through Khasra No. 1382. The defendant dumped Malwa in this water channel. He refused to remove the same. Sh. Gauri Dutt has appeared as DW-1. He has deposed that Kuhl was abandoned since 12 to 13 years back since the water passes through the water pipe. He did not obstruct the water of Kuhl in any manner. DW-2 Durga Dutt has deposed that meter was installed on 10.1.1990. DW-3 Lekh Ram has deposed that Rama Nand is his brother. He has further deposed that he is co-owner with appellant Rama Nand. He then deposed that water did not pass in the Kuhl since 10 to 12 years. The plaintiff has not led any evidence except appearing himself as PW-1. He has not served any notice upon the defendant to lift the Malwa, if any. There is no evidence that the defendant had ever agreed to lift the Malwa. The plaintiff has not examined any witness to substantiate that the house was constructed recently. It has come in the evidence that the house was constructed more than 10-12 years back. The plaintiff has failed to prove that Malwa was ever thrown in the water Kuhl by the defendant. Consequently, in view of the aforesaid reasoning, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 7.4.2009 (Rajiv Sharma ), J. *awasthi*