RSA No.540 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.540 of 1985 Date of decision : 31.5.2011 Pritam Kaur through her legal heirs … Plaintiff/Appellants Versus Sarbati and others … Defendants/Respondents CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present : Mr. H.N.S. Gill, Advocate, for the appellant(s). Mr. H.S. Dhandi, Advocate, for the respondent. *** JITENDRA CHAUHAN, J. The present appeal is directed against the judgment and decree dated 11.12.1984 passed by the learned Additional District Judge, Rupnagar allowing the appeal of the defendants/respondents against the judgment and decree dated 19.10.1982 passed by the Sub Judge, I Class, Kharar, decreeing the suit of the plaintiff/appellant. The plaintiff/appellant filed a suit for permanent injunction restraining the defendants from blocking the free flow of rainy water passing through the water channel (choe) by raising a ‘bandh’ or constructing a wall at points A to B as shown in the Site Plan, Ex.P1, situated in village Bharatpur. The plaintiff averred that she is owner-in- RSA No.540 of 1985 -2- possession of Khasra No.89 situated in village Bharatpur vide jamabandi for the year 1977-78. There is a water channel (choe) coming from the side of Village Saidpur, which passes near the field of the plaintiff and thereafter it falls in the village pond. The defendants/respondents illegally and forcibly occupied the village abadi land on both sides of the water channel (choe) and raised construction. The defendants wanted to block the flow of the rainy water passing through the said water channel (choe). She also prayed for issuance of mandatory injunction for removal of obstruction at points A to B shown in the site plan, Ex.P1. The defendants contested the suit on the grounds that there is no water channel (choe) in existence and the same has been wrongly shown by the plaintiff in the site plan. The natural flow of rainy water near the bara is from East to West keeping in view the locations of the Villages, it is impossible that the choe runs from village Bharatpur to village Saidpur as it is situated at a lower level than that of village Bharatpur. The defendants also took the stand that the natural flow of rainy water near the bara in dispute is from East to West and the rainy water never flowed through the bara in dispute. It was also stand of the defendants that they purchased the plot in dispute from Arjan singh vide registered sale deed dated 12.02.1972 and raised constructions over it. There was no question of suffering any loss by the plaintiff as natural flow of rainy water is from east to west and through the fields of plaintiff since time immemorial. After hearing both the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to the injunction prayed for ? OPP RSA No.540 of 1985 -3- 2. Whether the suit in the present form is not maintainable ? OPP 3. Whether no cause of action has arisen for filing the suit ? OPD 4. Whether the suit if false and vexatious and whether defendants are entitled to costs under Section 35-A CPC ? OPD 5. Relief. The trial Court vide judgment and decree dated 19.10.1982 decreed the suit in favour of the plaintiff. Feeling aggrieved against the judgment and decree of the learned trial court, the defendants preferred an appeal which was allowed vide judgment and decree dated 11.12.1984, dismissing the suit of the plaintiff. Aggrieved against the judgment and decree dated 11.12.1984 passed by the Ist Appellate Court, the plaintiff-appellant preferred this appeal, which was admitted on 27.8.1985. During the pendency of this regular second appeal, Pritam Kaur plaintiff-appellant expired on 4.1.2000 and her husband Umrao Singh; Ishar Singh and Darshan Singh her sons filed C.M.No.5032-C of 2001 for bringing their names on record as legal representatives of Pritam Kaur plaintiff-appellant, which was allowed subject to all just exceptions on 18.7.2001. Learned counsel for the plaintiff-appellant argued that the judgment and decree of the Ist appellate Court is perverse, against record and is result of misreading of the documentary evidence. He further argued RSA No.540 of 1985 -4- that the Ist Appellate Court has erred in not properly appreciating Ex.P.10/1 report of PW5, Gurdas Singh, Field Kanugo; report Ex.P.10 of the police regarding removal of obstruction in the shape of ‘bandh’ made by the defendants; Ex.PW7/A report dated 11.3.1981 of the Local Commissioner appointed by the learned trial court and the oral evidence produced by the plaintiff-appellant. The counsel has also drawn the attention of this Court to the report dated 15.2011 of the Local Commissioner appointed by this Court vide order dated 27.1.2011. Learned counsel for the respondents on the other hand submitted that the judgment of the Ist appellate Court is well reasoned and no substantial question of law arises for determination of this Court. I have heard the learned counsel for the parties and have gone through the entire record with their able assistance. The following question arises for determination of this Court: “Whether the judgment and decree of the lower Ist Appellate Court is perverse, based on misreading of documentary evidence?” Explanation (i) of Section 7 of the Indian Easement Act, 1882 reads as under: “( i ). The right of every owner of upper land that water naturally rising in, or falling on such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.” In case Ambica Saran Singh Vs. Debi Saran Singh-AIR 1914 Allahabad 436, it was held that “It is not open to the person on the adjoining land to build bunds so as to obstruct flow of water.” RSA No.540 of 1985 -5- In case Sheik Hussain Sahib Vs. Pach Pulusu Subbayya-AIR 1926 Madras 449 (FB) it was held that “If the owner of the lower land obstructs, he will be restrained if the obstruction causes or tends to cause damage to the owner of the land on the higher level.” In case Munna Lal Vs. Municipal Board, Cawnpore-AIR 1936 Allahabad 676 it was held that “It is immaterial whether the water flows in a definite channel or not.” In case Kaosal Mohan Powar Vs. Kodu Dajiba Powar-AIR 1946 Nagpur 75 it was held that “A person who rightfully possesses land on a higher level has the right to discharge the surplus rain water which falls on his land on to the land on the lower level when it has a natural drainage in that direction. The owner of the lower land is bound to accept this water and cannot arise artificial barriers on his land which will cause the water to accumulate on another’s property. He cannot do this even if it is necessary to protect his own property. Of course such a right can be acquired in special ways, which must be pleaded and proved.” In Sampuran Singh Vs. Arjan Singh-AIR 1961 Punjab 414 = 1961 Punjab Law Reporter 90, it was held that “Illustration (i) to Section 7 of the Indian Easement Act only connotes that if there is a defined channel and the water can get through that channel it must not be allowed to sprawl on the adjoining land. But if there is no defined channel from which the water can flow, then the land which is naturally situate at a lower level has to take the burden of the natural flow of water.” In Patneedi Rudrayy Vs. Velugubantla Venkayya-AIR 1961 Supreme Court 1821 = 1962(1)SCR 836, it was held that “The owner of the lower land is bound to accept water discharged from the higher land and cannot raise artificial barrier on his land which will cause the water to accumulate on another’s property. He cannot do this even if it is necessary RSA No.540 of 1985 -6- to protect his own property. Of course, such a right can be acquired in special ways which must be pleaded and proved.” PW4 Umrao Singh, husband and attorney of Smt Pritam Kaur, the plaintiff-appellant, appeared as witness to support the case. The findings of the Ist appellate Court that the plaintiff has failed to lead any satisfactory evidence is erroneous and perverse. The trial court decided issue no.1 which is the main issue in favour of the plaintiff while decided issues no.2 to 4 against the defendants. The Ist appellate Court has factually and legally erred in reversing the findings on issue no.1. The Ist appellate Court has taken note of the fact that Pritam Kaur plaintiff-appellant has not herself stepped into the witness box. It is true in certain cases where a party in person does not appear as a witness, adverse inference is drawn against him/her. The instant case is based on the documentary evidence. PW Umrao Singh, the husband and attorney of the plaintiff is fully acquainted with the facts appeared in the witness box. In rural society, generally the women folk normally do not go to the police station and the courts unless and until their presence is very much required and it cannot be dispensed with by some reason. So, the testimony of PW Umrao Singh, the husband and attorney of Smt Pritam Kaur, the plaintiff-appellant, is of a good and trustworthy witness. In this case, the plaintiff has proved his case by producing cogent and reliable evidence. PW 5, Gurdas Singh, Field Kanugo, a revenue official, deposed that as per the orders of the Tehsildar, on the application ExP.9 of the plaintiff-appellant, he visited the spot on 28.1.1981 in the presence of Sarpanch Sukhwant Singh; DW3, Patwari Halqa Piara Singh (retired); Capt. Budh Singh, Gurdev Singh, Gurbaksh Singh, Member Panchayats; Bhajan Singh son of a Lambardar; Chowkidar Jagat Singh and RSA No.540 of 1985 -7- Smt Pritam Kaur plaintiff-appellant and other members. He submitted his report Ex.P.10/A on 28.1.1981. This report has bearing on the case. It is mentioned that there was a ‘bandh’ at the spot resulting into accumulation of water. The water was seeping through the ‘bandh’ and falling into the village pond. On the western side of the ‘bandh’, the land consisting of khasra No.89 belonging to Smt Pritam Kaur, the plaintiff-appellant is situated. The wheat crop was sown in it. There was possibility of destruction of the wheat crop. In his report, the Kanugo also suggested the Panchayat to persuade Ram Kishan and others not to obstruct the flow of water. Thereafter, the matter was reported to the police. The matter was compromised with intervention of the Panchayat as reflected in Ex.P.10. The compromise, Ex.P.10, was submitted to the police, whereby the Sarpanch informed the Police that the obstruction of water was got removed and there was no storage of water. The compromise, Ex.P.10, is written by the Sarpanch, Sukhwant Singh, all the members Panchayat and the defendant, Ram Kishan. The S.H.O. of Police Station, Mubarikpur, also visited the spot on 10.2.1981 and found no obstruction in flow of water. Accordingly, the application was filed. PW7, Shri Brij Mohan Lal, Local Commissioner, visited the spot on 10.3.1981 in the presence of the village Panchayat. Abstract from report, Ex.PW7/A, of this report is as under: “About 2,1/2’ to 3’ high wheat crop is standing in the whole of khasra no.89, which measures about half a killa. On taking a complete round of khasra no.89. I found that water about 3” to 4” deep was standing in the entire field. Though at present the wheat crop standing therein does not exhibit any RSA No.540 of 1985 -8- visible signs of damage, it is likely to be adversely affected if the accumulated water is not drained off soon.” The plaintiff proved the ownership of khasra no.89 vide jamabandi Ex.P.12 of the land shown in the Site plan is Ex.P.11. This Court vide order dated 27.01.2011 appointed a Local Commissioner to know the status of the area with regard to the construction, existence of channel, natural flow of water and size of the pond. The local commissioner visited the spot on 8.02.2011 in the presence of the parties. Shri Rajpal Shekho, Naib Tehsildar; Patwari Gurmail Singh; Bhajan Singh Lambardar and Surmukh Singh, Chowkidar, assisted the local commissioner. The spot was also photographed. The abstract from the report of the Local Commissioner is reproduced below:- “4. That as per my spot inspection, I found that pond is in existence which measures approximately 178 feet. However, in front of the pond there exists construction belonging to respondent, which is already shown in photograph marked as Annexure B. 5. That the fields of the appellant is situated on the backside of the construction, which is shown in the photographs marked as Annexure C, where wheat crop is standing. 6. That due to the construction, the water concerning to the fields of appellant cannot go to the pond and even otherwise the rainy water as well as waste water of the village is also not being drained in the pond. The waste water as per the photographs is standing in the choe which is marked as Annexure D. RSA No.540 of 1985 -9- 7. That there is no pucca drain existed at the spot. There is choe in existence which drains the rain water from the village to the pond passing through khasra no.89 and then from the area where the new house has been constructed and then ends to the pond where all the water gets collected as a result of natural flow of water. The photograph of choe is marked as Annexure E.” It is necessary to mention here that while deciding application under Order XXXIX rule 1 and 2 of the Code of Civil Procedure, the learned trial court observed as under in order dated 15.4.1981:- “…………….Arguments have not been addressed as Mr K.S. Bains has made a statement stating therein that in view of the averment made by the defendants in paras 9 and 10 of the application filed by them on 12.3.81 praying for vacation of status quo order passed by the court, the plaintiff applicant does not press his application filed along with the suit. The defendants in paras 9 and 10 of the application dated 12.3.81 have inter alia under taken that they would remove the construction made by them in the bara aforesaid at their own expenses and risk in case the plaintiff ultimately succeeds in establishing his rights for passing water through points A and B. In this view of the matter the application filed by the plaintiff/applicant under Order 39 Rules 1 and 2 CPC fails and the same is dismissed with no order as to costs……” Ram Kishan, the defendant appeared as DW1. DW2, Mangal Singh, belongs to another village, Beropur, and his evidence is not being RSA No.540 of 1985 -10- taken into consideration. DW3, Piara Singh, retired Patwari, cannot be believed as after retirement he has chosen not to support the revenue document report dated 28.1.1981 Ex.PW10/A prepared by his superior officer PW5 Gurdas Singh, Field Kanugo, for the reasons best known to him. In cross examination this witness stated that he did not accompany the Kanungo, Gurdas Singh to the spot at Village Bharatpur, and the latter got his (DW3 Piara Singh) signatures on the report prepared him (PW5 Gurdas Singh). From his report, at least one thing is clear and proved that PW5 Gurdas Singh, Field Kanugo, did inspect the spot on 28.1.1981, prepared report at the spot and got signatures of the village Panchayat including village Patwari, DW3 Piara Singh, since retired. So, only to this extent he is to be believed so far as his testimony corroborates the report Ex.PW10/A. The defendant Ram Kishan is left with his own statement for consideration of this Court. Water always flows from higher side towards lower side. It never accumulates on the higher side. There is no defined channel to pass the natural flow of water. From the oral and documentary evidence it is clear that the rainy water comes from village Saidpur side, goes to the unmetalled track between the fields of village leading from Saidpur to village Bharatpur, where the land of the plaintiff-appellant is situated. Then the rainy water falls into ‘phirni’ of village Bharatpur and passes by the side of Khasra No.89, owned and possessed by Pritam Kaur plaintiff-appellant and ultimately, falls in the village pond. When the pond is filled to its capacity, the water goes to village Chadiala through unmetalled drain. The report Ex.PW10/A of PW5, Gurdas Singh Field Kanugo; Report Ex.PW7/A of PW7, Shri B.M.Lall Garg, Local Commissioner; Compromise Ex.P.10 regarding removal of obstruction by the village Panchayat in the presence of RSA No.540 of 1985 -11- the police and Report dated 15.2.2011 of the Local Commissioner appointed by this Court clinches the controversy. The defendant could not produce any document to prove his case except sale deed Ex.D1 and plan Ex.D1/A, attached therewith that he had purchased this land from Arjan Singh. There is no dispute about the ownership of the land of Ram Kishan defendant. The only dispute is that the defendant is obstructing the natural flow of water, which he has no right to do so under the Indian Easement Act. There is no channel to regulate the natural flow of water. Thus the plaintiff clearly had the easementry right to unobstructed natural flow of water from her fields at a higher level to that of the defendants at the lower level. The defendants cannot build ‘bunds’ at points A to B as shown in site plan Ex.P.11 so as to obstruct flow of water. The arguments of the learned counsel for the respondent that water of village Saidpur flows towards western side so water does not come to village Bharatpur is not supported by any oral or documentary evidence. None of the villagers came to support this plea. The bald statement of Ram Kishan defendant is not sufficient to provide his plea unless and until it is corroborated by some document. Ex.P.10 dated 10.2.1981, compromise written by the Sarpanch of the village and signed by the entire Panchayat including the defendant Ram Kishan is sufficient to hold that the defendant is obstructing the natural flow of water. The next argument of the learned counsel for the respondent that level of the land of the appellant is lower than that of the defendants, and it is not possible that water would pass through the land of the respondents is also not supported by any oral or documentary evidence. The defendant has not placed on record any plan to prove the natural flow of water as alleged by him and to rebut the oral and documentary evidence RSA No.540 of 1985 -12- produced by the plaintiff. . The issue wise findings of the trial court are well reasoned and convincing. Keeping in view the totality of the circumstances, as discussed above, this court is of the opinion that the judgment and decree of the Ist Appellate Court is perverse and unsustainable. Resultantly, this regular second appeal No.540 of 1985 is allowed, judgment and decree dated 11.12.1984 of the Ist Appellate Court is reversed while judgment and decree dated 19.10.1982 passed by the learned trial Court is restored. However, there is no order as to costs. 31.5.2011 ( JITENDRA CHAUHAN ) atulsethi JUDGE Note : Whether to be referred to Reporter : Yes / No