IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2520 of 2010 (O&M) Date of decision: 27th September, 2011 Smt. Santosh … Appellant Versus Suresh and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Mohit Garg, Advocate for the appellant. None for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present regular second appeal has been filed by plaintiff to the suit. Briefly stated, appellant-plaintiff had instituted a suit praying that permanent injunction be granted and the defendants be restrained from forcibly and illegally digging out a watercourse in his land falling in Khasra Nos. 37/21 and 37/22 situated within the revenue estate of village Majod, Tehsil Hansi, District Hisar. It was pleaded in the suit that the appellant-plaintiff, along with proforma defendants, is having a joint ownership and possession over the land measuring 163 Kanals 12 Marlas, detail and description whereof has been given in the plaint. It was further pleaded that about 4½ years before filing of the suit, an oral partition had taken place between the parties and the appellant-plaintiff, along with her husband- Regular Second Appeal No.2520 of 2010 (O&M) proforma defendant No.9, had become owner in possession of 40 Kanals 17 Marlas of land including Khasra Nos.31/21 and 31/22. A specific stand was taken that due to mutual agreement, defendants No.1 and 2 had sought permission to dig the watercourse for six months and such a permission was granted and now the watercourse has been filled up with soil by the appellant-plaintiff. Thus, no watercourse is existing at the spot. Therefore, a prayer was made that the defendants be restrained from digging the watercourse through the land of the appellant-plaintiff. Upon issuance of notice of the suit, defendants caused appearance. They took a specific stand that there is a sanctioned watercourse in the suit land, which is being used by the residents of the village and there is a warabandi issued by the Irrigation Department. The trial Court had formulated issues. The appellant-plaintiff examined four witnesses and had tendered various documents, whereas defendants No.1 and 2 examined three witnesses. The trial Court relying upon ‘Gugan v. Sultan Singh’ 1982 PLR 270 has held that where a watercourse is sanctioned by law, constructed due to agreement between the parties or to which easement is prescribed, in those cases only, jurisdiction of the Civil Court is barred. The trial Court has further held that since the defendants had failed to bring the disputed watercourse under the above categories and definition given in the Act, jurisdiction of the Civil Court in the present case is not barred and it granted injunction in favour of the plaintiff. Aggrieved against the same, defendants filed an appeal. The findings given by the trial Court have been reversed by the lower appellate Court by holding that in the 2 Regular Second Appeal No.2520 of 2010 (O&M) present case orders have been passed by Sub Divisional Canal Officer, Hansi and the Divisional Canal Officer, Hansi, from which it is discernible that the watercourse is a sanctioned one. The lower appellate Court relied upon Ex.D2, certified copy of the order dated 15th March, 2007 passed by Sub Divisional Canal Officer, Hansi, and Ex.D3, certified copy of the plan of disputed watercourse. The Court further relied upon Section 25 of the Northern India Canal and Drainage Act, 1873 to hold that jurisdiction of the Civil Court is barred. It has further held that the defendants had filed an application before the Sub Divisional Canal Officer, Hansi who after hearing the parties ordered restoration of the watercourse vide his order dated 15th March, 2007 Ex.D2. Aggrieved against the same, an appeal was filed and the Divisional Canal Officer, Hansi had dismissed the same vide his order dated 31st May, 2007. Counsel for the appellant-plaintiff has failed to show any document, from which it could be inferred that the finding given by the lower appellate Court that the watercourse is sanctioned one, is against the evidence led by the parties. Learned counsel has stated that to oust the jurisdiction of the Civil Court, the lower appellate Court had to give a clear finding that it was a sanctioned watercourse. Counsel has further stated that this is the only substantial question of law for consideration of this Court. At the outset, this argument is to be rejected because the lower appellate Court has stated in categoric terms as under: “7. … … … The order passed by the SDCO and DCO clearly proves the fact that watercourse in dispute is sanctioned one… … …” 3 Regular Second Appeal No.2520 of 2010 (O&M) Counsel has failed to dislodge this finding of fact given by the lower appellate Court. Thus, the proposed substantial question of law is nothing but a question of fact which cannot be determined in the regular second appeal. Hence, the present appeal is dismissed and the findings given by the lower appellate Court are hereby affirmed. [KANWALJIT SINGH AHLUWALIA] JUDGE September 27, 2011 rps 4