1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 476 of 2001 a/w Cross Objection 22/2002 Date of Decision: 28.9.2011 Shiv Ram & others Appellants./defendants Versus Lekh Ram & others ..Respondents./plaintiffs. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 . No. For the appellants: Mr. Karan Singh Kanwar, Advocate. For the Respondents: Mr. Ashok Sood, Advocate. Sanjay Karol, J. (Oral). This is defendant’s Regular Second Appeal filed under Section 100 of Code of Civil Procedure, against the judgment and decree dated 30.6.2001 passed by learned District Judge Sirmaur at Nahan in Civil Appeal No. 21-CA/13 of 2000, arising out of judgment and decree dated 9.12.1999 passed by Sub Judge, Ist Class, Nahan in C.Suit No. 112/1 of 1998, decreeing the plaintiffs’ suit by reversing the findings of the trial Court. The suit is decreed to the following effect: “As a result of my finding on point No.1 above, the instant appeal succeeds and is hereby allowed and the suit of the plaintiffs is decreed for mandatory injunction as well as for permanent prohibitory injunction with proportionate costs and the defendants are directed through mandatory injunction to restore the kuhl from Khasra No. 244 as shown in Tatima Ex.. PW-1/A and are 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 permanently restrained from permanently closing this Kuhl. With respect to the relief of claim of damages, the suit of the plaintiff is hereby dismissed. Decree sheet be drawn accordingly. File be completed and consigned to the record room. Lower Court’s record be returned with a copy of this judgment.” 2. The appeal was admitted on the following substantial questions of law: “1. Whether the plaintiffs are entitled to decree of mandatory and prohibitory injunction in terms of Tatima Ex. PW-1/A when no right in the kuhl by way of title, easement, custom or any other right has been pleaded by the plaintiff? 2. Whether the mandatory injunction prayed by the plaintiffs is barred by limitation and the learned District Judge failed to invoke Section 3 of the Limitation Act, 1963 for this purpose? 3. Whether the learned District Judge, in the facts and circumstances of the case, has misconstrued, misinterpreted and mis-applied documentary evidence place don the record and the view taken by the learned District Judge is not possible on the basis of material on record?” 3. According to the plaintiffs they are owner in possession of land comprised in Khata Khatauni No. 119/176 min, Khasra No. 237 and 239 measuring 1.8 Bighas and 3.6 Bighas respectively, in Mauza Lana Palar, Tehsil Renukaji, District Sirmaur, H.P. The suit land is irrigated by a Kuhl (Water channel) known as Palar ka Khala, which originates from Khasra No. 214 belonging to the Government and passes through other Government land i.e khasra No. 246. It also passes through the land comprised in khasra No. 243 and 244 3 and finally irrigates his land comprised in khasra No. 239 where he has installed a small water mill used for grinding and crushing agriculture articles. The suit land was being irrigated and water mill run with the water channelised through the Kuhl in question till March, 1995. The land was being irrigated from the year 1969 onwards. It was only in the year 1995 that the defendants obstructed free flow of water by destroying the Kuhl. As such relief for mandatory injunction was prayed for. However, defendants contested the suit, stating that water mill was closed in the year 1986,1987 itself and there was no water channel adjoining to Khasra No. 239. 4. On the basis of pleadings of the parties trial Court framed the following issues:- “1. Whether the plaintiffs are entitled for relief of mandatory injunction as prayed for? OPP. 1A. Whether the defendants have constructed water mill and thereby doing so are hindering the course of plaintiff’s water mill and small scale industrial unit? OPP. 1B. Whether the defendants have started using kuhl channel of the plaintiffs to their own water mill after acquisition of patta No. 1699 in Khasra No. 248/1 , as alleged, if so its effect? OPP. 2. Whether the plaintiffs are entitled for relief of permanent prohibitory injunction as prayed for? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4 4. Whether the plaintiffs have no cause of action and locus-standi to file the suit? OPD. 5. Whether the suit is hit by provisions of O.2 R.2 C.P.C? OPD. 6. Whether the suit is bad for non-joinder of necessary parties? OPD. 7. Whether the suit is within limitation? OP Parties. 8. Relief. ” 5. The Trial Court dismissed the suit holding that no Kuhl existed over Khasra No. 244/239 and as such plaintiffs are not entitled to relief of mandatory injunction. 6. The Lower Appellate Court, after fully appreciating the material on record placed by the parties, has returned findings of fact, reproduction of which shall be beneficial:- “14. In the written statement, it has been admitted by the defendants that the lands of the plaintiffs and the defendants are irrigated from the same kuhl. However, in para-6 of the written statement an explanation has been given suggesting that for irrigation of the suit land, the plaintiff could prepare Katcha Baand whenever irrigation is needed. It has specifically been mentioned that the kuhl starts from Khasra No. 214 and 246 and thereafter the water of the kuhl is being used by all the villagers for cultivating their land and as per the custom prevailing in the area during the irrigation period, katcha baands are prepared by the needy villagers from the puccas kuhl behind the khasra No. 244 to their land and on completion of the irrigation, the same are removed from their land, but instead of it, the plaintiffs want to get pucca Baandh made through the land of the defendants. The controversy appears to have been set at rest by these 5 averments suggesting that for khasra No. 239 the plaintiffs had been getting water from the said kuhl. The only point for determinations is whether the same used to pass through khasra No. 244 in the form of katcha kuhl or not. A special custom has been claimed by the defendants to deny the right of the plaintiffs to have the said irrigation channel through khasra No. 244. For this purpose, the defendants have examined few witnesses and have also referred to the wazibul Arz. 15. I have gone through the contents of Wazibul Arz Ex. DW-1/B, the translated copy of which is on record, but the learned counsel for the defendants could not show me any of the clause suggesting that as per custom of taking irrigation water, the villagers are required to make Katcha Baandhs only during the time of irrigation. To support their contention, the defendants examined few witnesses, but I find that none of the witnesses could give any satisfactory evidence that the plaintiffs have no right to take water through the land comprised in Khasra No. 244. Here, I may like to refer to the statement of DW-2 Hem Chand, who has stated in cross-examination that it is not known to him as to how much land the plaintiffs own and what are their khasra numbers and how these lands are irrigated, though he has admitted that the land of the plaintiff is irrigated by a kuhl. He has also admitted that his own lands are not irrigated by any kuhl. Similar is the statement of DW-3 Kali Ram. He has also admitted in cross examination that it is not known to him as to who other than Shiv Ram get their land irrigated through the disputed kuhl and who gets its water in the end. He has also admitted that how the water of this kuhl is utilized by other beneficiaries is also not known to him. The same type of replies have been given in cross-examination by DW-6 Inder Singh. 6 16. The witnesses of the plaintiffs have been discarded by the learned trial court because they were not from the same village or that one of the witnesses wanted to have his daughter married in the family of the plaintiffs. However, the quality of evidence adduced by the defendants cannot be taken to be in any way better than the evidence adduced by the plaintiffs. On the other hand, it is admitted case of the defendants that there existed water mill of the plaintiffs in Khasra NO. 239, which was found lying closed in the year 1986.-1987 and was also found closed in the second all India Industrial Census conducted in the year 1990. Though by these averments, the defendants have tried to prove that at present, the plaintiffs are neither having their water mill nor small scale industrial unit, but they have definitely admitted that these units did exist before the year 1986-1987. Here again, the learned trial court has referred to mark-A the report of the General Manager, District Industries Centre, Nahan. In my view by relying on this document, the defendants have admitted the existence of the water mill and small scale industrial unit of the plaintiffs in the suit land. 17. The land comprised in khasra No. 237 and 239 is mentioned as kuhl Avval suggesting that best possible irrigation facility is available to this land. This fact is evident from Ex. PW-1/B, copy of jamabandi for the year 1996-1997. Even the land comprising in khasra No. 238 is shown as kuhl Doyam suggesting that the same is also irrigated though a kuhl. Khasra No. 244 owned by the defendant is also classified as kuhl Avval. In Tatima Ext. PW-1/A, the existence of kuhl has been shown in khasra No. 244. It is the case of the defendants that this kuhl after khasra No. 244 goes to Khasra No. 235. This contention of the defendants cannot be accepted as correct because khasra No. 235 is Ober Doyam meaning 7 threby it is a land depending upon rains and is not irrigated by any kuhl. This kuhl could not have gone to khasra No. 235. With respect to the description of khasra No. 235, a reference can be made to Ext. PW-1/E, copy of jamabandi for the year 1996-97”. (Emphasis supplied) 7. The Lower Appellate Court has arrived at the aforesaid findings by taking into account the fact that tatima (Ex. PW-1/A) was got prepared by the plaintiffs alone. Significantly the same was prepared not for the purpose of establishing their right but only to show the extent of damages caused to the water channel. 8. Perusal of the record only shows that existence of the water mill on the plaintiffs’ land comprised in Khasra No. 239 is not in dispute. In fact there is an admission on the part of the defendant that there is a water mill, which however, is lying closed since the year 1986. Water mill could have been run only by channelising the water. That there is only one water channel which fed the water mill in question is also apparent from the record. That apart, plaintiffs’ case is essentially based on revenue documents which clearly establishes the fact that this land is in fact irrigated. As such, it cannot be said that lower appellate court erred in decreeing the plaintiffs’ suit. Findings of fact have been recorded not on the basis of tatima (Ex. PW-1/A) entire evidence (oral and documentary) has been correctly and completely appreciated by the Courts below. It also cannot be said that lower appellate court misconstrued , misinterpreted or misapplied the documentary evidence placed 8 on record by the defendants. The findings of fact cannot be said to be erroneous/perverse either. 9. With regard to the question of limitation, records reveals that plaintiffs had approached the Court within time. That apart the issue No.7 was not pressed by the defendants even before the trial Court. As such, in my considered view no question of law much less a substantial question of law arises for consideration in this appeal. The same is accordingly dismissed. Cross objections are also dismissed. (Sanjay Karol),Judge. September 28, 2011 (Priti)