IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 213 of 1998 and 430 of 2000. Judgment reserved on 20.4.2010. Decided on April 27, 2010. RSA 213 of 1998. Hem Raj and others …Appellants. Versus Ram Lal & others …Respondents. RSA 430 of 2000. Hem Raj and others … Appellants. Versus Bakhtawar Singh & others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Sh. G.D.Verma, Sr. Advocate, with Sh. Romesh Verma, Advocate. For the Respondents: Mr. R.K.Gautam, Senior Advocate, with Mr. Mehar Chand, Advocate. Surjit Singh, Judge. By this judgment, two appeals, i.e. RSA No. 213 of 1998 and 430 of 2000, are sought to be disposed of, because in both the appeals the same judgment and Whether reporters of the local papers may be allowed to see the judgment? - 2 - decree of the first Appellate Court, that is, judgment and decree dated 16.9.1997, has been assailed. 2. Appeals were admitted on the following substantial questions of law: 1. Whether there has been mis-reading and mis- appreciation of the pleadings of the parties as well as oral and documentary evidence on record. 2. Whether there was no justification to ignore site-plan exhibit PW-4/A duly proved on record by appellant in preference to site plan exhibit DW-2/A? 3. Whether defendants have acquired right to commit nuisance as regards to the property in suit of the appellant so as to discharge rain water in Kuhal-Khal ‘AB’ passing through ‘CD’ to fall in Kundlu Nadi? 4. Whether there is any proximate and immediate likelihood of damage to the public road/path as well as the public well as a result to passage of any water in Kuhal in suit as mentioned in exhibit PW-4/A? 5. Whether the defendants have right to interfere and obstruct passage of rainy water through land of the Appellant and to demolish Danga on Point ‘C’ in the course of Kuhal- Khal, mentioned in exhibit DW-4/A? 6. Whether the Appellants have established his/ their claim and he is entitled to the relief as prayed for and the courts below have acted illegally by failure to consider the pleadings - 3 - and oral as well as documentary evidence on record? 3. Facts, giving rise to these appeals and also relevant for disposing these of, may be noticed. 4. In village Riya, Pargna Gullerwala, Tehsil Nalagarh, there are two Kuhals (water channels) for carrying surplus rain water to a river known as ‘Kundlu Nadi’ and starting point of one Kuhal is Jagatpur Nala and the starting point of the other Kuhal is towards village Joggon. Starting point of the first Kuhal is to the East of village abadi, while that of the second one is to the North of the abadi. Kuhal to the East of the village, flows through Khasra No. 782 and this fact is admitted by both the parties. According to the appellants, who were plaintiffs in Civil Suit No. 197/1 of 1987 before the trial Court, and defendants in Civil Suit No. 199/1 of 1987, Kuhal, passing through Khasra No. 782, joins the other Kuhal, which flows through Khasra No. 726 and the water of both the Kuhals, then falls in an outlet–cum-passage, comprised in Khasra No. 744, and from there, the water joins the aforesaid Kundlu river. This position is depicted by the appellants in site plan Ex.PW-4/A. Plaintiffs further alleged that just where Khasra No. 782 has end point, their own land bearing Khasra No. 762 is situate and at the start of that Khasra No. 762, there exists a - 4 - Danga (embankment). It was alleged that this Danga had been in existence since times immemorial, to prevent rain water of Kuhal in Khasra No. 782, from entering their land bearing Khasra No. 762 and damaging the said land and that very recently they had re-enforced that Danga by concrete and cement. It was stated that the defendants had threatened to demolish that Danga so as to divert the water of Kuhal running through Khasra No. 782 towards their land bearing Khasra No. 762 and so, they filed a suit for permanent prohibitory injunction restraining the defendants from damaging the said Danga (embankment) at point ‘C’, as depicted in Ex.PW-4/A and further obstructing flow of Kuhal near point ‘C’ towards the other Kuhal running through Khasra No. 726. It was alleged that defendants were planning to block the Kuhal, running through Khasra No. 782, at points ‘AB’ and ‘DE’, as shown in Ex.PW-4/A (site plan) and prayer was made that they be restrained from doing so. 5. Respondents – defendants contested the suit. Also, they filed a separate suit, that is, Suit No. 199/1 of 1987. In both the written statement (filed in the suit of the appellants-plaintiffs) as also in the plaint of their suit, respondents pleaded that Kuhal, bearing Khasra No. 782, did not join the other Kuhal running through Khasra No. 726 and that in between the two Kuhals, there was - 5 - Shamlat land and a well and that in fact, water of Kuhal in Khasra No. 782 passed through Khasra No. 762 of the appellants-plaintiffs at point ‘C’ as shown in Ex.PW-4/A. It was denied that there existed any old Danga or embankment. It was stated that a new embankment was raised by the appellants-plaintiffs and a portion of Shamlat land, falling between Khasra Nos. 782 and 726, shown by Khasra Nos. 723 and 724, was sought to be dug up into a Kuhal by the appellants-plaintiffs, during summer vacation in the Civil Court at Nalagarh and so, a case under Sections 107/151 Cr.P.C. was instituted against them and with the intervention of the Executive Magistrate and the Panchayat, the plaintiffs were prevented from digging Kuhal through said Khasra Nos. 723 and 724. It was pleaded that in case the appellants- plaintiffs were permitted to proceed with their designs, that would have damaged a well (existing on) and passage running through the aforesaid Shamlat land, bearing Khasra Nos. 723 and 724. It was also stated that the appellants- plaintiffs had not depicted the spot position correctly in their plan Ex.PW-4/A and that the position was correctly depicted in their own plan Ex.DW- 2/A. 6. The two suits were consolidated by the trial Court, but separate issues were framed in both the cases. - 6 - In the suit filed by the appellants-plaintiffs, following issues were framed: 1. Whether plaintiffs are entitled to the relief claimed as alleged? OPP. 2. Whether the Koohl/Khal A,B and Danga –C (as mentioned in annexure A) are in existence for more than 100 years, as alleged? OPP. 3. Whether the plaintiffs have acquired rights of easement etc as alleged? OPP. 4. Whether the suit of the plaintiffs is not maintainable in the present form? OPD. 5. Whether the suit of the plaintiff is bad for want of non-joinder of the necessary parties? OPD. 6. Relief. 7. In the other suit, instituted by the respondents-defendants, following issues were framed: 1. Whether the plaintiffs are entitled to the relief claimed as alleged? OPP. 2. Whether the Kuhl, Khal drain GJHI as mentioned in annexure A is in existence as alleged, if so its effect? OPP. 3. Whether Danga/ Check-dam mentioned as ‘S’ in the annexure –A is recent origin, if so its effect? OPP. 4. Whether the plaintiffs have acquired the rights of easement as alleged, if so, its effect? OPP. - 7 - 5. Whether this suit is liable to be stayed u/s 10 CPC as alleged? OPD. 6. Whether the suit of the plaintiffs is not maintainable and competent as alleged? OPD. 7. Whether the suit of the plaintiffs is bad for non joinder of necessary parties? OPD. 8. Relief. 8. Learned trial Court dismissed the suit of the appellants-plaintiffs. The other suit filed by respondents- defendants was decreed, and the appellants- plaintiffs were restrained from connecting Kuhal, carrying water through Khasra No. 782 with the Kuhal, bearing Khasra No. 726 by digging the Shamlat land, falling between the two numbers. 9. Two separate appeals were filed by the appellants-plaintiffs, one challenging the decree of dismissal of their suit and the other challenging the decree, decreeing the suit of the respondents- defendants. Learned District Judge, vide impugned judgment and decree, dated 16.9.1997, dismissed both the appeals. 10. Appellants-plaintiffs have now filed the present two appeals. I have heard learned counsel for the parties and gone through the record. 11. Substantial questions of law, on which the appeals have been admitted, are inter-connected and co- - 8 - related. As a matter of fact, some of the substantial questions of law are not properly worded, especially question Nos. 3 and 5. Question Nos. 6 and 1 are the same in substance, differences being only of the wording of the two questions. 12. Site plan proved by plaintiffs, that is, Ex. PW- 4/A, has been prepared by a Surveyor. The same is not prepared on copy of Musabi or Momi or Latha, but is a rough map. In this map, Kuhals of Khasra No. 782 and 726 are shown to form one Kuhal. Khasra Nos. 723 and 724, recorded as Shamlat and falling between Khasra Nos. 782 and 726, have though been shown in this site plan, but an impression has been created that these numbers are on one side of the portion of Kuhal, shown between Khasra Nos. 782 and 726. Admittedly, Khasra Nos. 782 and 726 are recorded as Kuhals. Khasra Nos. 723 and 724 are recorded as Shamlat (allotable pool). No portion of it is recorded as Kuhal. Its kind is recorded as Banjar Qadim and Talla Doem Barani. Reference, in this behalf, may be made to Jamabandi for the years 1983-1984, copy Ex.P-1. Plaintiffs- appellants have not depicted the portion of the Kuhal between Khasra Nos. 782 and 726, as part of Khasra Nos. 723 and 724, in their plan Ex.PW-4/A. On the other hand, plan proved and relied upon by the defendants- respondents, Ex.DW-2/A, - 9 - appears to have been drawn in accordance with Shajra. It exactly fits into the copy of Musabi, Ex.PW-5/C, available in the record of Suit No. 197 /1 of 1987. Therefore, this site plan appears to have rightly been preferred over the site plan Ex.PW-4/A, relied upon by the appellants- plaintiffs, by the learned Appellate Court. 13. As already noticed, both the Kuhals, running through Khasra No. 782 and Khasra No. 726, have a gap between them. The gap forms part of Khasra Nos. 723 and 724, which are recorded as allotable pool and the kind of land comprised therein is recorded as Banjar Quadim and Talla Doem Barani. Therefore, presumption, as per entries based on the revenue papers, is that Kuhal, comprised in Khasra No. 782, is separate from Kuhal, comprised in Khasra No. 726 and the water of Kuhal, bearing Khasra No. 782, does not fall in Kuhal, bearing Khasra No. 726. 14. It has come in evidence that sea level of Khasra No. 726 is higher than that of Khasra No. 782. Reference, in this behalf, may be made to the testimony of PW-4, Prem Chand, Surveyor, who prepared the site plan Ex.PW-4/A and is a witness of the appellants- plaintiffs themselves. If it is so, it cannot be believed that water of Kuhal, running through Khasra No. 782, joins the Kuhal, running through Khasra No. 726. - 10 - 15. The very fact that the appellants-plaintiffs claim to have had an embankment at the end point of Khasra No. 782, to protect their land bearing Khasra No. 762, as also the fact that land beyond that point, bearing Khasra Nos. 723 and 724, is not recorded as Kuhal, suggest that the water of Kuhal, bearing Khasra No. 782, turns towards Khasra No. 762 at that point. It has come in evidence that Kundlu Nadi is on the other side of Khasra No. 762. It appears that natural flow of rain water from the point where Kuhal, bearing Khasra No. 782 terminates, is through land bearing Khasra No. 762 of the appellants-plaintiffs and after passing through the said Khasra, it joins Kundlu Nadi, as shown by letters ‘GHI’ in the site plan Ex.DW-2/A. 16. In view of the above said position, all the aforesaid substantial questions of law, on which the appeals were admitted, are answered against the appellants. Consequently, the appeals are dismissed. April 27, 2010 (PC). (Surjit Singh) Judge.