IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 78 of 1999. Judgement reserved on: 27.4.2009 Date of decision: May 4, 2009. Gulab Singh & anr. ….. Appellants. Vs. Harnam Singh …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. G.D. Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. For the Respondent : Mr. K.D. Sood, Advocate. Kuldip Singh, Judge. This appeal has been directed against the judgement, decree dated 1.12.1998 passed by learned Additional District Judge, Sirmour District at Nahan in Civil Appeal No. 34-N/13 of 1998, affirming the judgement, decree dated 22.5.1998 passed by learned Sub Judge, Rajgarh, District Sirmour in Civil Suit No. 52/1 of 1995. 2. The facts in brief are that respondent had filed suit for permanent prohibitory injunction restraining the appellants from interfering and breaking the Kuhal of respondent and from lifting water from Kuhal comprised in khata khatauni No. 14/18 min khasra Nos. 51, 46, 49, 36 measuring 0.14 bigha, village Neri Jagela, Tehsil Rajgarh, District Sirmour. The further case of the respondent is that Whether the reporters of the local papers may be allowed to see the Judgment? …2… he is owner in possession of land comprised in khata khatauni No. 8/11 min khasra No. 31, measuring 1.8 bigha, village Neri Jagela. On 11.9.1995, appellants started installation of water pump to lift water from Kuhal to village Samala without any right, title or interest and thereby they tried to diminish the water supply of respondent for irrigation. The point is shown as khasra No. 48/1 in tatima from where water is being lifted. The appellants on 11.9.1995, disrupted the water supply of respondent to khasra No. 31 at point “A” shown in tatima by breaking the Kuhal without any right, title or interest. 3. The appellants contested the suit and took preliminary objections of maintainability and estoppel. On merits, they denied that land in question was being irrigated from the Kuhal, which comes from khasra No. 51. The correctness of tatima was not admitted. The khasra No. 51 is owned and possessed by the appellants and others. The respondent has no locus-standi to file the suit. The appellants being co-owners of land comprised in khasra No. 51 have every right to use the said land in any manner. It was denied that any legal right of the respondent was injured or water supply was diminished. The respondent filed replication and reiterated his stand. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit land is being irrigated from Kuhal comprised in khasra No. 51, khata/ khatauni No. 14/18 min? OPP. 2. Whether the defendants have disrupted the flow of kuhal to the suit land? OPP. 3. Whether defendants have started diminishing of quantity of water in the said Kuhal by installing pump without any right, title or interest? OPP. 4. Whether the suit is not maintainable in the present form? OPD. …3… 5. Whether the plaintiff is estopped by his acts, conduct and acquiescence to file the present suit? OPD. 6. Relief. The learned Sub Judge answered issues No. 1 to 3 in affirmative, issues No. 4 and 5 in negative and decreed the suit on 22.5.1998. The first appeal filed by the appellants was dismissed on 1.12.1998 by the learned Additional District Judge, hence the matter has come in second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the plaintiff is not entitled to discretionary and equitable relief of injunction against appellants in view of the report of Local Commissioner that there is sufficient water available on the spot. 2. Whether in the absence of specific claim of easementary rights against appellants suit cannot be entertained and findings are without jurisdiction. 3. Whether the respondent has the alternative remedy of partition of land and therefore, he is not entitled to decree of injunction. 4. I have heard Mr. G.D.Verma, Senior Advocate, learned counsel for the appellant and Mr. K.D. Sood, learned counsel for the respondent and have also gone through the record. It has been submitted on behalf of the appellants that the two courts below have erred in decreeing the suit on the basis of Local Commissioner report, which on its face is not enough to determine the controversy. The respondent has not pleaded any legal right in support of relief of permanent prohibitory injunction. The respondent in paragraph-2 of the plaint has pleaded that Kuhal passes through khasra No. 51 and …4… irrigates the land comprised in khasra No. 31 referred in para-1 of the plaint. The appellant No. 1 is co-sharer in land comprised in khasra No. 51 and therefore, he cannot be restrained from using the water flowing in Kuhal. The learned counsel for the respondent has supported the impugned judgement, decree and has submitted that two courts below after carefully going through the material on record have rejected the contentions of the appellants and decreed the suit of the respondent and no case for interference has been made out by the appellants. 5. Substantial questions of law No.1 & 2 are interconnected, therefore, both are being taken up together for disposal. In the headnote of the plaint, the respondent has referred khasra Nos. 36, 46, 49, 51 but without any supporting averments regarding his right. In the body of the plaint, the respondent has pleaded that he is owner in possession of khasra No. 31 and through Kuhal flowing on khasra No. 51 the land comprised in khasra No. 31 was being irrigated. In the body of the plaint, there is no reference of khasra No. 46, 49 and 36 but in prayer in addition to khasra No. 51, the khasra Nos. 46, 49 and 36 have also been included. The respondent has not pleaded any legal right with respect to his entitlement to irrigate the land comprised in khasra No. 31 through Kuhal flowing on khasra No. 51. Ex. PW 2/A is the tatima, which was prepared by PW 2 Surinder Singh Patwari, who has stated that from point “A”, the Kuhal after crossing khasra Nos. 40 and 32 reaches khasra No. 31. There were old marks of Kuhal. He has stated that he visited the spot on 24.11.1995. There was no water in the Kuhal and it was stopped. …5… 6. PW 1 Harnam Singh has stated that on 19.11.1995, the respondent had broken the Kuhal. On 11.9.1995 they tried to install pump on khasra No. 48. In cross-examination, he has admitted that Sohan Singh is the owner of khasra No. 48. He has further stated that after crossing khasra No. 48, kuhal irrigates the land of appellants. He has also stated that Gulab Singh is his real brother and he has several pending cases against the appellants. In Ex. PW 1/A jamabandi 1989-90, respondent is shown owner in possession of khasra No. 31 and nature of land is shown irrigated. In Ex. PW 1/B jamabandi 1989-90 the respondent, appellant No.1 and others have been shown owners in possession of khasra No. 51 Kuhal. In jamabandi 1989-90 Ex. PW 1/C Sohan Singh has been recorded as owner in possession of land comprised in khasra No. 48 Charand (pasture). In the plaint, it has been pleaded that the point from where the water is being lifted is shown khasra No. 48/1 in the tatima. There is no question of lifting the water from khasra No. 48 or any part thereof. The nature of land comprised in khasra No. 48 has been shown as Charand in jamabandi 1989-90 Ex. PW 1/C. I have gone through the report of Local Commissioner dated 24.5.1998, wherein the Local Commissioner has observed as follows:- “ (1) That suit land of the plaintiff is irrigated by the aforesaid is Kuhal from suit land (sic). (2) That the defendant has tapped the water from the said Kuhal and it diminishes the water supply in the Kuhal but not substantially. Hence the report is submitted, in this Hon’ble Court.” …6… 7. The Local Commissioner report practically is of no help to the respondent as the conclusion drawn by Local Commissioner shows that though the water flow in the Kuhal diminishes on tapping of water by the appellants but it does not diminish substantially. In these circumstances, it cannot be said that after tapping of the water by the appellants, no water is left in the Kuhal for irrigating the land of respondent in khasra No. 31. PW 2 has stated that Kuhal was stopped when he visited the spot on 24.11.1995. The respondent has not prayed for mandatory injunction. There is no foundation in the plaint with respect to legal right of the respondent for irrigating his land comprised in khasra No. 31. The khasra No. 48 is not owned by respondent from where the appellants intended to lift the water. The evidence has not been properly construed. The two courts below have not properly appreciated the material on record. The impugned judgement and decree are not sustainable. The substantial questions of law No. 1 and 2 are accordingly decided in favour of the appellants. 8. The case of the appellants is that respondent has alternative remedy of partition of suit land, therefore, he is not entitled to injunction. The suit cannot be thrown out on the ground that respondent instead of filing a suit for injunction should go for a suit for partition. It is a different matter that in the present case the respondent has not established his legal right to seek decree of permanent prohibitory injunction. The substantial question of law No. 3 is decided against the appellants. 9. No other point was urged. …7… 10. As a result of above discussion, the appeal is allowed. The impugned judgement, decree dated 1.12.1998 passed by learned Additional District Judge, Sirmour District at Nahan in Civil Appeal No. 34-N/13 of 1998 affirming the judgement, decree dated 22.5.1998 passed by learned Sub Judge, Rajgarh, District Sirmour in Civil Suit No. 52/1 of 1995, are set-aside and the suit of the respondent is dismissed with no order as to costs. May 4, 2009. ( Kuldip Singh ), (Hem) Judge.