Regular Second Appeal No. 1870 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1870 of 2010 Date of decision : April 20, 2011 Balbir Sain ....Appellant versus Smt. Chandrawali and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Dr. Praveen Hans, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant Balbir Sain having failed in both the courts below has filed the instant second appeal. Suit was filed by plaintiff Parbhu Dayal (since deceased and represented by respondents as his legal representatives) against defendant- appellant alleging that plaintiff is owner in possession of the suit land and defendant has no right, title or interest therein but the defendant wanted to dig water course through the disputed land. Injunction against the said act of the defendant was claimed. Mandatory injunction was also claimed if the defendant succeeded in digging water course through the suit land during pendency of the suit. Regular Second Appeal No. 1870 of 2010 -2- The defendant contested the suit and pleaded that water course approved and sanctioned by Irrigation Department already existed in the disputed land for the last more than 40 years and defendant has been irrigating his land through said water course as per warabandi fixed by the Irrigation Department. Various other pleas were also raised. Learned Civil Judge (Junior Division), Bhiwani vide judgment and decree dated 6.5.2002 decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Bhiwani vide judgment and decree dated 30.7.2009. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. It is undisputed that plaintiff is owner in possession of the suit land. However, defendant claimed existence of sanctioned water course in the disputed land. Defendant has miserably failed to establish his said version. The defendant examined Roshan Lal DW1, Assessment Clerk from the Irrigation Department. However, he stated in cross-examination that he did not know whether the water course existing in the suit land is sanctioned one or not. There is also no other evidence to depict that there is any sanctioned water course existing in the disputed land although it was specific stand of the defendant in the written statement that there is sanctioned water course existing in the disputed land. Since there is no sanctioned water course in the disputed land, plaintiff's suit has been rightly decreed as he is owner in possession of the suit land. Regular Second Appeal No. 1870 of 2010 -3- Learned counsel for the appellant vehemently contended that water course includes water course sanctioned by law, water course by agreement or water course by prescription and in this case there is water course by agreement dated 12.12.1993 Ex. D1 on which the plaintiff admitted his signatures. The contention although apparently attractive is completely devoid of merit. This compromise purports to have been effected by Panchayat with the consent of defendant and plaintiff's son Ramesh Chand. The plaintiff is not even party to this compromise. Perusal of photostat copy of compromise Ex. D1 as shown by learned counsel for the appellant reveals that apparently it does not bear the signatures of the plaintiff himself. Moreover, this compromise was arrived at during the pendency of the suit and if any such compromise had been arrived at during the pendency of the suit, it should have been got recorded in the court under Order 23 Rule 3 of Code of Civil Procedure. However, no such step was ever taken by the defendant. In addition to it, no such compromise or agreement was even pleaded by the defendant in his written statement and the aforesaid evidence and contention are completely beyond pleadings. It may also be added that the plaintiff stated that signatures on this document had been obtained forcibly and under threat. Thus, examined from any angle, the so called compromise does not help the appellant in any manner. Learned counsel for the appellant next contended that Warabandi had been fixed and therefore, the disputed water course should be treated to be sanctioned water course. Reliance was placed on judgment Regular Second Appeal No. 1870 of 2010 -4- of this Court in Brij Lal and Ors. Versus State of Punjab, 1982 All India Land Laws Reporter 510. The contention is misconceived and devoid of merit because the defendant has failed to depict that Warabandi had been sanctioned with reference to the disputed water course allegedly passing through the suit land. For the same reason judgment of Full Bench of this Court in Karam Singh vs. Superintending Canal Officer, Sirhind Canal, 1988 PLJ 408 is not applicable to the facts of the instant case. Reliance on behalf of appellant has also been placed on judgment of this Court in Phuman Singh vs. Superintending Canal Officer, 1985 Recent Revenue Reports 368. However, in that case the petitioner applied for restoration of the demolished water course which the petitioner was using for more than 20 years. It was held in writ jurisdiction that canal authorities are bound to order restoration of the demolished water course. Said order was passed pursuant to provisions of section 30-FF of the Northern India Canal and Drainage Act. However, no such case is made out by the defendant in the facts of the instant case. For the same reason judgment of Division Bench of this Court in Amarjeet versus Divisional Canal Officer, Sonipat, 2001 (4) RCR (Civil) 745 is not attracted to the facts of the instant case. Learned counsel for the appellant also contended that jurisdiction of civil court to try the suit is barred. The contention cannot be accepted because there is no sanctioned water course existing in the suit land. Consequently, civil court only has jurisdiction to injunct the defendant from digging any water course through the suit land or to close or fill up the water course dug through the suit land. Canal authorities under Regular Second Appeal No. 1870 of 2010 -5- the Haryana Canal and Drainage Act can order sanction of a new water course or can adjudicate regarding the sanctioned water course but cannot injunct a person from illegally interfering in the possession of another person over the land of the latter. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below in favour of the plaintiff is justified by the evidence on record. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. Therefore, the said finding does not call for interference in second appeal. No question of law much less substantial question of law arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) April 20, 2011 Judge 'dalbir'