IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 332 of 1998. Reserved on: 05.11.2008. Decided on: 14.11.2008. Gulab Singh. … … Appellant. Versus State of Himachal Pradesh and another. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellant: Mr. Romesh Verma, Advocate vice Mr. Pradeep Verma, Advocate. For the Respondents: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree of the learned Additional District Judge, Solan passed in Civil Appeal No.36-S/13 of 1997, dated 31.3.1998. Brief facts necessary for adjudication of this regular second appeal are that the appellant/plaintiff (hereinafter referred to as the plaintiff for convenience sake) had instituted a suit for permanent injunction stating that he is permanent resident of village Ser Banera also known as Ser- Whether reporters of local papers may be allowed to see the judgment? No. - 2 - Ka-Banera, Tehsil and District Solan, H.P. and is also having agricultural land in the said village. It is further alleged that the plaintiff is having irrigation facility and the land is irrigated by a kuhal known as “Tehal-Ka- Banda” which is situated in a Khad falling in between two villages known as Ser-Ka-Banera and Bagur, Pargana Quintan II, Tehsil and District Solan. The plaintiff and other villagers are provided irrigation facility from this kuhal and their rights have been recorded in revenue record and also in Naksha Riwajat Ab Pashi. It is alleged that the plaintiff was enjoying the water of said kuhal since the time of his grand father. The defendants have now given threats to tap the water source and provide water to other villages, who had no right in the said source and in case the defendants succeed in tapping the source of water and taking the water of the Bandha known as Tehal-Ka-Bandha to other villages forcibly and illegally in that event the plaintiff would be deprived of his right of water which will cause irreparable loss and injury to him. The defendants had resisted and contested the suit of the plaintiff. The trial Court on the basis of the evidence led by the parties dismissed the suit on 11.4.1997. The plaintiff preferred an appeal before the learned Additional District Judge, Solan. The learned Additional District Judge, Solan dismissed his appeal on 31.3.1998. This regular second appeal is directed against this judgment and decree of the learned Additional District Judge, Solan dated 31.3.1998. This regular second appeal was admitted on the following substantial questions of law:- 1. Whether for want of consideration of revenue record Ex. P-1 and P-2, the courts below have failed to exercise jurisdiction in accordance with law? - 3 - Mr. Romesh Verma appearing vice Mr. Pradeep Verma has strenuously argued that the judgments and decrees passed by both the Courts below are not sustainable in the eyes of law. He then contended that the Courts below have not taken into consideration the revenue entries, i.e. Ex.P-A and Ex.P-1 while deciding the suit and the appeal. The learned Senior Additional Advocate General 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. Plaintiff has appeared as PW-1. He has produced and proved on record Ex.P-A and Ex.P-1 alongwith its English translation Ex.P-2. He has deposed that he owns land in village Ser Banera which is irrigated by the kuhal known as Tehal-Ka-Banda existing from the time of settlement. This kuhal starts from the khad of village Bagur and Ser-Ka-Banera. They used the water of this kuhal through pipes. The State had distributed the water from this khad to two other villages. Their crops were damaged. According to him, the villagers to whom the water has been supplied had no right to the same. DW-1 has deposed that the water supply scheme was started in the year 1986 and it was completed in the year 1991. The trial Court has dismissed the suit primarily on the ground that the plaintiff has not produced any site plan and has failed to point out the source of the spring from where the water was being lifted under the scheme. The trial Court has only taken into consideration Ex.P-1. The trial Court has not taken into consideration Ex.P-A, the copy of jamabandi for the year 1982-83. The purpose of producing and proving Ex.P-1 was to establish that the plaintiff and other co-villagers were using the water - 4 - from the kuhal according to their own turn. This aspect has been overlooked by the trial Court in its entirety. The trial Court and the first appellate Court have also not taken into consideration Ex.DW-1/A. The point from where the water has been lifted could be ascertained with the help of Ex.DW-1/A. The trial Court and the first appellate Court cannot omit to consider the evidence brought on record, oral as well as documentary. The learned first appellate Court has neither taken into consideration Ex.P-A nor Ex.P-1 while dismissing the appeal. It was incumbent upon both the Courts below to take into consideration the revenue entries existing in favour of the plaintiff showing his right to use the water from the kuhal. Since both the Courts below have failed to take into consideration Ex.P-A and Ex P-1 in their right perspective, the matter is required to be remanded back to the first appellate court for deciding the first appeal afresh. Accordingly, this regular second appeal is allowed. The judgment and decree passed by the first appellate Court, dated 31.3.1998 is set aside. The matter is remanded back to the learned first appellate Court to decide the appeal afresh after taking into consideration the documents Ex.P-A, Ex.P-1 and Ex.DW-1/A. The parties are directed to make themselves available before the first Appellate Court on 26th November, 2008. No order as to costs. November 14, 2008. (Rajiv Sharma) (sck). Judge.