RSA No.1655 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1655 of 2010 (O&M) Date of decision : 30-8-2010 Shamsher .... Appellant VERSUS XEN, CADA, Narwana and others ....Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Pankaj Middha, Advocate, for the appellant. RAKESH KUMAR GARG J. This is plaintiff's second appeal challenging the judgment and decrees of the Court below whereby his suit for mandatory injunction directing the respondents to dismantle water courses from his land and for permanent injunction restraining respondents from constructing water course from his land, has been dismissed. In his suit, appellant pleaded that he is owner in possession of suit property. Land of village Danoda is adjoining with the land of plaintiff. From the boundary of both villages the water course is running but it is not clear without demarcation as to where the water course from point A to B is to be constructed. Defendants have constructed water courses over the land comprised in khasra nos.15, 16, 24 and 25 which is liable to be dismantled. If defendants succeeded to construct water courses from point A to B over the land RSA No.1655 of 2010 (O&M) -2- of plaintiff, it will cause loss to him which cannot be compensated. Hence the present suit. Upon notice, respondent Nos.1 and 2 appeared and filed their joint written statement interalia pleading that Kacha water course is running on the boundary of village Mangalpur and Danoda Khurd from the last more than 25 years and no objection was raised by the plaintiff during the construction of pucca water course. As per DCO decision published vide DCO letter No.20 Revenue 04 dated 2.07.2004, water course is to be brick lined from point A to B square No.29 Killa No.10, 11, square No.30 Killa No.15 as running at site from point A to B and no objections were filed by the plaintiff to the aforesaid scheme during the stipulated period. It was further pleaded that no land is going to be acquired because the katcha water course is running from the last more than 25 years and was left during consolidation of the land. Other averments of the plaint were denied by respondents and dismissal of the suit was prayed. Respondent / defendant Nos.3 to 7 also filed their joint written statement pleading that water course in question was running since the time of consolidation of land holding and the same was being used for irrigation of land of villages Mangalpur and Danoda. Plaintiff has no concern with the water course because the same was constructed over the land reserved during consolidation of holding. There was no question or need to acquire land for construction of khal and for paying compensation. The dismissal of the suit was prayed for. From the pleadings of the parties, the following issues were RSA No.1655 of 2010 (O&M) -3- framed:- i) Whether the plaintiff is entitled to the decree for permanent injunction as prayed for? OPP iA Whether the plaintiff is entitled to decree for mandatory injunction directing the defendants to dismantle khal (water course) in question? OPP ii) Whether the plaintiff has got no locus standi to file the present suit? OPD iii) Whether the suit of the plaintiff is time barred? OPD iv) Relief. Both the Courts below on appreciation of evidence recorded a finding of fact that the water course from point A to B shown in the site plan Ex.D2 has already been constructed even prior to filing of present suit and it is an admitted fact that water course is running on the boundary of villages Danoda Khurd and Mangalpur. Plaintiff has not produced any evidence to show that the defendants have constructed water course over his land. He could have got his land demarcated. But no such efforts were made by him and there is no iota of evidence on record to substantiate his claim. The trial Court while dismissing his suit also noticed that in his cross-examination, appellant has stated categorically that water course in question is about 25-30 years old and the same is not in his land. In view of the aforesaid facts noticed by the Courts below, it cannot be held that findings of the Lower Courts below are perverse. In view of this matter, I find no merit in this case. RSA No.1655 of 2010 (O&M) -4- No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) 30-08-2010 JUDGE manju