IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 317 of 1999. Reserved on : 2.4.2009. Decided on: 21.4.2009. __________________________________________________ Shri Bansi Ram … Appellant. Versus Shri Bal Krishan and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Janesh Gupta, Advocate, For the Respondents : Mr. Ramakant Sharma, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Solan in Civil Appeal No. 73-S/13 of 1998 dated 7.6.1998. Brief facts necessary for adjudication of this regular second appeal are that the appellants-plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) filed a suit for permanent prohibitory injunction. The case of the plaintiffs in brief was that they were co-owners in possession of the land comprised in Khewat No. 3, Khatauni Nos. 3 & 4, Kitas 38, measuring 50-13 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 bighas, situated in Mauza Tharola, Tehsil Kandaghat, District solan to the extent of 1/3rd share. It is averred that the respondents- defendants (hereinafter referred to as the defendants) have nothing to do with the suit land and the suit land is being irrigated by the plaintiffs and other co-sharers from the water source known as “Chaab Ka Nullah” from the time immemorial. The rights of the plaintiffs are recorded in “Riwaj Aab Pashi”. As per “Riwaj Aab Pashi” the plaintiffs and other co-sharers are entitled to irrigate the lands for three days i.e. 72 hours regularly. The defendants have right of irrigation for two days as per “Riwaj Aab Pashi”. The suit was contested by the defendants. It was averred on merits that from the place of “Chaab”, a Nullah starts known as “Chaab Ka Nallah” and this nullah merges in a nullah known as “Tharola Ka Nullah”. There is very little water in this source. It is also averred that other water sources which were existing in the lands of the defendants and Het Ram, these sources have no connection with the Nullah known as “Chaab Ka Nullah”. The sources are used by the defendants and other co-villagers. The trial Court decreed the suit on 28.8.1998. The defendants preferred an appeal before the learned District Judge, Solan. The learned District Judge, Solan partly allowed the appeal on 7.6.1998 and resultantly the decree of the trial Court was modified. This regular second appeal was admitted on the following substantial question of law: “Whether the modification in the judgment and decree of the trial Court made by the Appellate Court is against the provisions of Order 20 of the Code of Civil Procedure, was it permissible for the Appellate Court to modify the decree to such an extent by making the 3 suit of the plaintiff infructuous and rendering the decree inexecutable particularly when the right to use water in the water channel was conceded by the defendants?” Mr. Janesh Gupta has supported the judgment and decree passed by the learned trial Court. Mr. Ramakant Sharma has supported the judgment and decree passed by the learned First Appellate Court. I have heard the learned counsel for the parties and have perused the record carefully. PW-1 has deposed that the suit land is “Kuhli” and being irrigated from “Chaab Ka Nullah”. He deposed that as per “Riwaj Aab Pashi”, their rights are recorded. He further deposed that the defendants created obstruction in the flow of water and in the year 1994, they diverted the water time and again. In his cross- examination, he deposed that settlement took place about 90 years back and at that time no tank had been constructed. PW-2 Prabhu Ram has deposed that he has seen the lands of the parties being irrigated from “Chaab Ka Nullah”. PW-3 Shiv Saran has corroborated PW-1. PW-4 Ram Rattan has testified that the lands of the plaintiffs and defendants are irrigated and parties have divided their turns. The defendant Bal Krishan had appeared as DW-1. He deposed that his entire land is irrigated from “Chaab Ka Nullah” emanated from “Chaab” and rest of the sources are existing on his land and in the land of Pandit Het Ram and these sources have no concern with “Chaab Ka Nullah”. DW-2 Diiwan Singh has deposed 4 that “Chaab Ka Nullah” merges in “Tharola Ka Nullah”. DW-3 Het Ram has deposed that there are other sources existing in his land and in the land of the defendants and they are using water from these sources. The statement of PW-4 is not very material. DW-5 Dhani Ram Verma has conducted the demarcation. He has produced copy of report Ext. PW-5/A. The plaintiffs have sought relief to irrigate their land from water of “Chaab Ka Nullah”. This right is recorded in “Naksha Riwaj Aab Pashi”. The defendants have preferred an appeal before the learned First Appellate Court against the injunction granted regarding water source existing in their own land about which no relief was claimed by the plaintiffs. The trial Court had also recorded a finding that the plaintiffs had proved on record that defendants created obstruction in their rights of irrigation and are diverting flows of water which are existing in their lands. This finding could not be recorded by the trial Court. The relief sought for by the plaintiffs was to irrigate their lands from “Chaab Ka Nullah”. The learned District Judge has rightly modified the judgment and decree passed by the trial Court. The findings recorded in paragraph 20 of the trial Court judgment whereby the defendants were restrained from diverting or obstructing the flow of water sources existing in their own land have been rightly set aside by the First Appellate Court. In fact the plaintiffs have not claimed any right of prescription or by way of easement over the sources owned by the defendants in their respective lands. The defendants could not be prevented from using the water from their own land without any pleadings. The defendants have taken a specific 5 averment in the written statement that the water source was existing in their own land. This source had nothing to do with the nullah known as “Chaab Ka Nullah”. No replication was filed by the plaintiffs to rebut the averment made in the written statement by the defendants. Accordingly, the learned District Judge, Solan has rightly modified the decree passed by the trial Court. Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. April 21, 2009. (cr)