IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 101 of 2001 Reserved on: 10.10.2011 Date of decision: 11.10.2011 Smt. Veena Sharma and another ... Appellants Versus Abdul Shakoor and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. Romesh Verma, Advocate. For the respondents: Mr. Karan Singh Kanwar, Advocate, for respondent No. 1. V.K. Ahuja, J. : This is a Regular Second Appeal filed by the appellants under Section 100 C.P.C., against the judgment and decree dated 11.12.2000 passed by the learned District Judge, Sirmour at Nahan, dismissing the appeal filed by the appellants against the judgment and decree of the Court of learned Senior Sub Judge, Nahan, dated 20.3.2000, vide which the suit of the plaintiffs for declaration, mandatory injunction and permanent injunction was dismissed. 2. Briefly stated, the facts of the case are that the appellants hereinafter referred to as the plaintiffs filed a suit for declaration, mandatory injunction and permanent prohibitory injunction as against respondent No. 1 and respondent No. 7 Municipal Committee, Nahan, 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 was impleaded as proforma defendant. It was alleged by the plaintiffs that in Missal Hakiyat Bandobast of 1989-90 Bikrami, Kahsra No. 470 measuring 30-12 Sq. Metres, situated in muhalla Ranital, Nahan, has been described as drain (Nali) owned by the Municipal Committee, Nahan. It was alleged that the domestic water of the residents of the vicinity including the plaintiffs and defendant No. 1 used to flow in the said drain since the time immemorial. It was alleged that in the recent Bandobast of 1988-89, no corresponding Khasra Numbers has been allotted to the old Khasra No. 470. It was alleged that defendant No. 1 allegedly misappropriated and included the suit land in his land comprised under Khasra Numbers 281, 282 and 284 in collusion with the Settlement staff. It was further alleged that in May, 1990, defendant No. 1 started construction and tried to block the flow of water into the said drain of the suit land. 3. Defendant No. 1 admitted that he was the owner of the land of new Khasra Numbers 281, 282 and 284, but he denied if there had been any drain in old Khasra No. 470 or the same has been mis-appropriated by him in his land comprised under Khasra Numbers 281, 282 and 284. He also pleaded that there has not been any drain in existence for the last more than 80 years and as such, the plaintiffs have no cause of action. 4. The learned trial Court framed seven issues and out of these issues, Issues No. 1 to 4 are material, which are being reproduced below:- (i) Whether there exists Municipal drain in Khasra No. 470, as alleged? … OPP 3 (ii) Whether the defendants got misplaced Khasra No. 470 in the revenue record in connivance with the revenue authorities? If so, to what effect? …. OPP (iii) Whether the plaintiffs have easementary right over drain, as alleged? …. OPP (iv) Whether the defendant No. 1 blocked the drain as alleged? …. OPP 5. Parties led their evidence and the learned trial Court vide its impugned judgment held that the plaintiffs had failed to prove the existence of any drain over the suit land and consequently dismissed the suit of the plaintiffs in full. On appeal, these findings were affirmed by the learned Appellate Court. 6. I have heard the learned counsel for the parties and have gone through the record. 7. The submissions made by the learned counsel for the appellants were that the evidence held by the plaintiffs prove the existence of the drain over the old Khasra No. 470 and since it has been misappropriated by defendant No. 1 and merged in his own land, therefore, the findings to the contrary of both the Courts below are liable to be set aside. 8. The appeal was admitted by this Court on the following substantial questions of law: “Whether the Courts below have mis-read and mis- appreciated oral and documentary evidence as well as pleadings of the parties to reject the suit of the appellants for declaration that there exists drain and they and other residents of the vicinity have a right to flow their domestic water in it, owned by Municipal Committee, Nahan over old khasra No. 470 and also for permanent 4 prohibitory injunction restraining the defendant No. 1 from raising any construction over it? 9. On appraisal of the judgment passed by the learned trial Court, it is clear that the learned trial Court had rightly referred to the provisions of Order 7 Rule 3, Rule 9 (ii) of Chapter 1-C, Vol. I of the High Court Rules and Orders, that the plaint has to be accompanied by the latest jamabandi and in case, the suit is for a specific plot with definite boundaries, it shall also be accompanied by a map showing the adjoining field numbers. It was rightly observed by the learned trial Court that since the relief claimed was for mandatory injunction, therefore, specific evidence was required to be led by the plaintiffs as to how much portion of the disputed drain has been encroached upon by defendant No. 1 by raising illegal super-structure and the specific portion must be shown in the site plan of the spot. Not only this, the plaintiffs had failed to disclose the existing site position of the disputed drain referred to the adjoining Khasra Number and from where the disputed drain comes and where it goes and nor it was accompanied by any map showing the exact location of the drain. These provisions of Order 7 Rule 3 and Rule 9 (ii) of Chapter 1-C, Vol. I, of the High Court Rules and Orders, were referred to by the learned Appellate Court and both the Courts below have concluded that the relief as sought for by the plaintiffs could not be granted in the absence of the exact location of the disputed drain or the site plan showing the location of the drain. The plaintiffs had only placed on record the copy of Missal Hakiyat Bandobast of 1989-90 Bikrami Ext. PA, wherein old Khasra Number 470 has been shown to be a drain of Municipal Committee. However, the plaintiffs had failed to place on 5 record the latest copy of revenue record showing new number of old Khasra No. 470. The plaintiffs also examined Patwari, who failed to prove that this Khasra Number 470 has been merged by defendant No. 1 or by the Settlement staff wrongly in the Khasra Numbers owned by defendant No. 1, namely, Khasra Numbers, 281, 282 and 284. It was for the plaintiffs to have proved on record that this old Khasra Number 470 has been merged wrongly in the numbers, owned by defendant No. 1, in which he had utterly failed. No official from Settlement office was examined to prove as to whether this old Khasra Number 470 existed or not showing the drain and the only conclusion which can be drawn is that Khasra Number 470 as shown in Ext. PA copy of Missal Hakiyat Bandobast of 1989-90 was not existing and a super-structure consisting of a house and latrine already existed over this Khasra Number. Once the plaintiffs had failed to prove the identity of the land in question, no relief of mandatory injunction or permanent injunction could be granted in their favour since that decree would not have been executable in any manner. 10. In view of the above discussion, it is clear that both the Courts below had come to a right conclusion that the plaintiffs had failed to prove the existence of any drain at the spot and as such, the suit of the plaintiffs was not maintainable and the plaintiffs were rightly held not entitled to the relief of mandatory injunction and permanent injunction claimed by them. The findings of both the Courts below are based upon correct appreciation of evidence and law and there need not be any reappraisal of the whole evidence led by the parties, though a brief reference has been made to the evidence led by 6 the parties that it has been concluded that the plaintiffs had failed to prove the existence of any drain at the spot. 11. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants, which is dismissed accordingly. However, the parties are left to bear their own costs. The records be returned to the Courts below. ( V.K. Ahuja ), October 11, 2011 Judge (BSS)