IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.229/1997 Reserved on: 16.5.2008 Decided on.30.5.2008 Karma Dandup. …Appellant. Versus Smt. Nargu Dolma. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the appellant : Mr. Romesh Verma, Advocate. For the respondent : None. Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Kinnaur at Rampur in civil appeal No.49/1995 decided on 9.6.1997. The brief facts necessary for the adjudication of this appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a suit in the Court of learned Senior Sub Judge, Kinnaur District on 30.8.1990 for declaration that she was entitled to irrigate her orchard comprised in khasra No. 140 measuring 0-04-74 hectares and khasra Nos. 113 and 342 measuring 0-04-36 hectares situated in Muhal Labrang, Tehsil Pooh, District Kinnaur, H.P. from the water drawn in Mayur Kuhal for 2 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 hours 15 minutes after interval of 8 days. The case set out by the plaintiff further was that Sh. Sharab Dorje, her father had gifted the suit land to her as per gift deed dated 2.11.1987 Ex.PW-1/B. The appellant-defendant Sh. Karma Dandup (hereinafter referred to as ‘the appellant’ for convenience sake) resisted the suit filed by the plaintiff by filing a separate written statement. He inter alia pleaded that the suit land is his ancestral land and according to the custom of District Kinnaur Sh. Sharab Dorje was not competent to gift away the same in the presence of male issue i.e. defendant. The trial court on the basis of the pleadings of the parties framed the following issues: 1. Whether defendant No.2 made a valid gift of the land mentioned in the title and para No.2 of the plaint in favour of the plaintiff with possession? OPP 2. If issue No.1 is proved in affirmative whether the plaintiff has the right to irrigate the suit land from Mayur Kuhal as alleged? OPP 3. Whether this suit is collusive with defendant No.2 to deprive defendant No.1 of the suit land as alleged? OPD 4. Whether other co-sharers are necessary parties to the proceedings, as alleged? OPD 5. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD 6. Whether the suit land is ancestral one and the gift of the same in the presence of defendant No.1 is void? OPD. 7. Relief. The trial court had returned the following findings: 3 Issue No.1 No. Issue No.2 No. Issue No.3 Not proved. Issue No.4 Yes Issue No.5 Not proved Issue No.6 Yes. Issue No.7. Suit dismissed as per operative portion of the judgment. The trial court dismissed the suit of the plaintiff on 11.4.1995. The plaintiff preferred an appeal before the learned District Judge, Kinnaur against the judgment of the trial court dated 11.4.1995. The learned District Judge had framed the following points for determination: 1. Whether the appellant-plaintiff is entitled to irrigate the suit land from Mayur Kuhal? 2. If point No.1 is found in the affirmative, whether plaintiff’s right to irrigate is for a duration of 2 hours 15 minutes as alleged? 3. Whether the appellant-plaintiff is entitled to the relief of permanent prohibitory injunction against the contesting respondent? 4. Relief. The learned District Judge had given the following findings on afore mentioned points: Point No.1 Yes Point No.2 No. Point No.3 Yes Point No.4 Appeal accepted as per operative portion of the judgment. 4 The learned District Judge accepted the appeal on 9.6.1997. This Regular Second Appeal is directed against the judgment dated 9.6.1997. The Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the gift-deed exhibit PW-1/B is null and void against rights of appellant/plaintiff? 2. Whether the parties being governed by Wazib Ul Urs exhibit DA, the plaintiff has not acquired any interest over the suit land on the basis of gift deed PW-1/B? 3. Whether property in suit is ancestral and could not be alienated without consent of the appellant in favour of the respondent by late Sh. Sharab Dorje? 4. Whether respondent has neither pleaded nor proved right of irrigation? 5. Whether the controversy between the parties could not be determined in the absence of all the sons of late Sh. Sharab Dorje, they being necessary parties? Mr. Romesh Verma, Advocate had strenuously argued that the judgment dated1 9.6.1997 is not sustainable in the eyes of law. He had supported the judgment of the trial court dated 11.4.1995. I have heard the learned counsel for the appellant/defendant and perused the record meticulously. Since all the questions of law are inter-connected, therefore, the same can be conveniently discussed together. Mr. Romesh Verma, Advocate had strenuously argued that the learned trial court on the basis of Wazib Ul Urs had come to a just conclusion that in the presence of male issue, the land could not be gifted by Sharab Dorje to the plaintiff by way of gift deed Ex. 5 PW-1/B. He has specifically drawn the attention of the Court to Ex.DA to substantiate his plea. He has also referred to the gazette of Kinnaur District. The plea raised by Mr. Romesh Verma cannot be taken into consideration in view of a categorical stand taken by the counsel appearing on behalf of the appellant before the first appellate court whereby the issues No.1 and 6 as framed by the trial court were stated to be not relevant at all for determination of the real controversy between the parties. Issue No.1 was pertaining to the validity of gift deed and issue No.6 was whether the suit land is ancestral one and the gift of the same in the presence of defendant No.1 was void. The relevant extract of para 10 of the judgment dealing with the statement made by the learned Advocate for the appellant reads thus: “He has very fairly stated that issues No.1 and 6, as framed by the learned lower court were not relevant at all for determining the real controversy between the parties. The line of argument adopted by the learned counsel is that the findings recorded by the learned lower court under issues No.1 and 4 are not sustainable, particularly when another suit filed by the present respondent, wherein the said transaction of gift in favour of the plaintiff has been disputed, is pending for decision in the lower court.” The controversy to be decided between the parties was with regard to the manner in which the land owned by the plaintiff was to be irrigated. Though the appellant has stated in the written 6 statement that the father could not make gift in favour of his daughter in the presence of male issue, but he has not stated so in his statement while appearing as DW-1. It was necessary for the appellant to lead specific evidence that the parties were governed by such a custom as mentioned in Wazib Ul Urs. The Wazib Ul Urs Ex. DA has also not been proved in accordance with law. The same has been simply tendered in evidence and marked as Ex.DA. DW-2 Tashi Palzor had only stated in his statement that the ancestral land cannot be given to the girls in the presence of boys. He has also not stated that the parties are governed by any custom as mentioned in the Wazib Ul Urs. This Court need not to go into the detail whether the plaintiff has been gifted the land by her father in accordance with law or not on the basis of gift deed dated 2.11.1987 since the appellant’s counsel has himself stated before the first appellate court that this issue was not required to be framed by the trial court. The appellant has also disputed the statement of the counsel before the learned first appellate court to the effect that the issues No.1 and 6 were not required to be struck by the trial court. The appellant is now precluded to take a different stand from the one which he had taken before the learned first appellate court. The counsel of the appellant had also stated before the learned District Judge that the dispute with regard to the gift was also being adjudicated upon in the lower court. Thus questions No. 1 to 3 are answered accordingly. 7 Now, the Court has to advert to substantial question No.4. The plaintiff had proved conclusively that she was entitled to irrigate her fields from Mayur Kuhal. The appellant had admitted in his statement that he stopped his sister i.e. plaintiff from irrigating the fields. The plaintiff has appeared as PW-1 and stated that the land in question was given to her by her father 30 years back. She has further stated that the gift deed was registered during the settlement operations. The appellant had appeared as DW-1 along with Sh. Tashi Palzor (DW-2) and one Mendup Dorje (DW-3). In the copy of jamabandi Ex.PW-1/D, late Sh. Sharab Dorje has been entered as co-owner in the khata of the suit land and also in possession of Kulahu Bageecha (irrigated orchard). In Ex.PW-1/C i.e. copy of Misal Hakiyat Bandobast Jadid, the name of the plaintiff has been entered in column of possession and the land has been classified as Bageecha Kulahu Awal Seb (irrigated orchard of apple). It is thus conclusively proved that the land had facility of irrigation. In Ex. PW-1/B i.e. gift deed, it has been mentioned that the donee i.e. plaintiff will enjoy the gifted property along with other rights appurtenant thereto. DW-2, Tashi Palzor has deposed that the orchard of apple is standing on the suit land and facility to irrigate the same is available along with other irrigated land holdings. DW-3, Mendup Dorje has admitted in his cross-examination that Khewatdar can use water of Kuhal as per his own turn in order to irrigate any portion of his land holdings. He has further admitted that the plaintiff is in possession of the suit land. Since the plaintiff had 8 become the owner of the land by way of gift deed Ex.PW-1/B, she also acquired other rights including to irrigate her land from Mayur Kuhal. Consequently, it is held that the plaintiff has pleaded and proved her rights of irrigation over the suit land. Now, the court has to advert to question No.5. The controversy between the parties was only with regard to facility to be accorded to the plaintiff to irrigate her land, which came to her possession on the basis of gift deed. The suit was filed only when the appellant had obstructed the right of the plaintiff to use the water. To determine this controversy, it was not necessary to array all the sons of Sh. Sharab Dorje and the suit was properly constituted. In view of the observations made hereinabove, there is no merit in the appeal and the same is dismissed. There shall be no order as to costs. (Rajiv Sharma), Judge May 30, 2008 *Awasthi*