IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 383 of 1999. Reserved on:23.7.2009. Decided on: 4.8.2009. __________________________________________________ Shri Ram Krishan … Appellant. Versus Shri Bal Krishan … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vinay Thakur, Advocate. For the Respondent : Mr.Romesh Verma, Advocate. _________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 9.8.1999 passed by the learned District Judge, Shimla in Civil Appeal No. 21/S/13 of 1996. 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 filed a suit for restraining the respondent-defendant (hereinafter referred to as the defendant for convenience sake) from interfering or disrupting the water supply from the source existing in Khasra No. 561. The plaintiff has built a house on Khasra No. 170. He had been taking water for use in the said house and also for irrigation purpose for the last twenty years from the source which existed on Khasra No. 561. According to him, he had been using this right openly, as of right and without any 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 interruption by the owners of Khasra No. 561 and thus, he had acquired easementry right by prescription. He has also stated that the plaintiff had been permitted by the previous owners Shri Jagat Ram and his wife Smt. Brijo to take water from the said source about twenty years back. Defendant had tried to obstruct the water supply. The suit was contested by the defendant. According to him, he had purchased the share of one Smt. Kamla Devi in Khasra No. 561. He denied the plaintiff’s claim that he had acquired easementry right to take water from the source on Khasra No. 561. The suit was dismissed by the learned Sub Judge on 30.4.1996. The learned Sub Judge decreed the counter claim preferred by the defendant. The plaintiff was directed to remove his pipes from the source existing in Khasra No. 561. The plaintiff preferred an appeal against the judgment and decree passed by the learned Sub Judge on 30.4.1996 as well as against the decree passed by the learned Sub Judge in counter claim preferred by the defendant. The learned District Judge dismissed the appeal on 9.8.1999. This regular second appeal was admitted on the following substantial questions of law: 1. Whether the Courts below particularly the learned Appellate Court has mis-interpreted and misconstrued the evidence and based its decision on surmises and conjectures? 2. Whether the relief of mandatory injunction could be granted in favour of defendant on the basis of the counter claim whereas the other co-sharers were not parties to the suit? 3 Mr. Vinay Thakur has strenuously argued that the judgments and decrees passed by both the learned Courts below are not sustainable in the eyes of law. According to him, both the learned Courts below have misinterpreted and misconstrued the evidence. According to him, mandatory injunction could not be granted in favour of the defendant on the basis of counter claim since according to him, other co-sharers were not added as parties to the suit. Mr. Romesh Verma has supported the judgments and decrees passed by both the learned Courts below. I have heard the learned counsel for the parties and have gone through the record carefully. Since both the substantial questions of law are inter- connected and inter-linked, they have been taken up together for adjudication to avoid repetition of discussion of evidence. The plaintiff has appeared as AW-1. He has deposed that he had been permitted by Shri Jagat Ram to take water from Khasra No. 561. He has placed on record photographs Exts. A-1 to A-16. He has deposed that photographs have been taken up during the pendency of the suit. In his cross-examination, he has deposed that he had been permitted to take water from the source in the year 1973. He has admitted that in the year 1996, Jagat Ram had transferred his entire land and property to his daughter and son-in-law Sant Ram. Name of his daughter is Kamla. Sant Ram was examined as RW-1. He has also appeared in the trial Court and made a statement in favour of the defendant as RW-2. He has deposed that he had permitted the plaintiff to take over 4 flowing water from the source and that the permission was conditional. He then deposed that the plaintiff had sought Jagat Ram’s permission to take surplus water, but Jagat Ram refused to do so. He has further testified that he had revoked the licence given to the plaintiff by service of notice, copy Ext. D-1. The plaintiff has admitted the receiving of the said notice. Kamla Devi has sold her share in the suit land to the defendant-respondent. The plaintiff has admitted while appearing as AW-1 that Jagat Ram had transferred the suit land in favour of his daughters; Satya and Kamla and son-in-law Sant Ram. It is apparent from mutation order Ext. DA that Jagat Ram had transferred Khasra No. 561 to his son- in-law Sant Ram and two daughters Kamla and Satya. Since Jagat Ram was not owner of Khasra No. 561, he could not create a licence in favour of the plaintiff. According to him, he was permitted to use the water by the previous owner. If that is so, the plea of prescription cannot succeed. Smt. Brijo has not been examined by the plaintiff from whom he claims to have a grant. The licence created by Sant Ram and Kamla stood terminated vide Ext. D-1 on 5.4.1994. The learned Courts below have correctly construed oral as well as documentary evidence. The counter claim preferred by the defendant in view of the circumstances mentioned above was maintainable. There is no infirmity or illegality in the orders passed by the trial Court whereby the counter claim preferred by the defendant has been decreed and the plaintiff has been directed to remove the pipes. It was not necessary for the defendant to add other co-owners as party-respondents in the counter-claim since he has purchased the land from Smt. Kamla Devi. 5 Accordingly, in view of the observations made hereinabove, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. August 4, 2009. (cr)