Case: Raruha Singh Vs. Achal Singh &amp; Others

he held that the appellant had not acquired a right of easement for flowing the water over the aforesaid course. According to the trial judge the sluice at point M. 2 as alleged by the plaint had not been proved nor was he satisfied about the appellants case about the obstruction in 1954. On these findings the appellants claim for a two-fold injunction was dismissed.5. The appellant then took the matter before the Additional District Judge. The appellate court considered the evidence and found that the appellant had proved his case that the water was flowing through the red dotted line openly as alleged by the appellant. It also held that the obstruction pleaded by the appellant had been established. In dealing with the principal question about the acquisition of the right of easement the appellate court observed that the learned trial judge was patently in error in assuming that Panbharan had been constructed in 1953 A. D. In fact evidence showed that it had been constructed in Sambat 1953 and this mistake had clearly vitiated the whole of the reasoning of the learned trial judge. It appears from the judgment of the appellate court that this position was conceded by the respondents learned counsel. The appellate court also examined the question as to whether Khasra No. 137 is a Bharri or Bandhiya and on that question he made a finding in favour of the appellant after considering the material evidence led in the case. As a result of its findings the appellate court allowed the appeal and decreed the appellants claim.6. The respondents then took the matter to the High Court in appeal. The High Court examined the plaint and came to the conclusion that the flow into Khasra No. 137 through the field of the respondents was through a natural course and it also thought that from the said Bandhiya the water was taken to Khasra No. 254 again through natural course. The only artificial channel which the High Court assumed had been pleaded by the appellant was the one seasonally constructed at points M. 2 and M. 3 on the map. The High Court, therefore, came to the conclusion that the case fell under S. 17(c) of the Easements Act, and no right could therefore have been acquired by the appellant as alleged by him. Incidentally the High Court also considered the evidence and it appears it was inclined to take the view that the evidence adduced by the appellant was not satisfactory. On this view the High Court allowed the appeal and dismissed the appellants suit.7. Now it is plain that in assuming that the allegations made by the appellant in his plaint attracted the provisions of S. 17(c) of the Easements Act the High Court has made out an entirely new case for the respondents. We have already set out the allegations in the plaint in some detail and we have noticed that the issues framed both in the trial court as well as in the appellate court clearly assumed that the red dotted line on which the appellant relied was alleged by him in substance to be an artificial channel. It is on this footing that the appellants claim to have acquired a right by 40 years user was considered in both the courts. It was this claim which was disputed by the respondents and on which both the parties led evidence. Therefore, in our opinion, it was not open to the High Court to read the plaint and that too in a very technical manner and to hold that the courts below had completely misjudged the character of the appellants claim. Since the parties had proceeded to trial on the definite understanding that the channel through which the water flowed right up from the start up to the end was alleged to be an artificial channel it was too late for the respondents to suggest that the plaint should be strictly read and the provisions of s. 17(c) of the Easements Act should be invoked.8. Incidentally we may point out that the High Court should not have entered into the question of appreciating the evidence as it appears to have done in the last portion of its judgment. This Court has repeatedly pointed out that in second appeal the High Courts jurisdiction is confined to questions of law. In this particular case the District Court had pointed out that the trial court had made an obvious mistake in regard to the date of the construction of the Panbharan. After all the questions at issue had to be tried in the light of oral evidence and surrounding circumstances. In such a case, if the appellate Court recorded definite findings it was not open to the High Court to attempt to reappreciate that evidence. However, the decision of the High Court is based principally on the view that the High Court took about the application of S. 17(c) of the Easements Act to the allegations made by the appellant in the plaint; and as we have held in the circumstances of this case it was not open to the High Court to adopt such a course. If the channel represented by the red dotted line on the map was alleged to be an artificial channel there can be no doubt that S. 17(c) would be inapplicable.9. At the hearing of this appeal a preliminary objection was raised by the learned counsel for the respondents that leave should not have been granted because the appeal is against the decision of a single judge and the appellant did not avail himself of the right to make an appeal under the Letters Patent. Besides, it was urged that this Court usually does not, and should not, interfere with the decision of a single judge in a second appeal. There is considerable force in this contention. However, since leave has been granted we do not think we can or should virtually revoke the leave by accepting the preliminary objection.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. Now it is plain that in assuming that the allegations made by the appellant in his plaint attracted the provisions of S. 17(c) of the Easements Act the High Court has made out an entirely new case for the respondents. We have already set out the allegations in the plaint in some detail and we have noticed that the issues framed both in the trial court as well as in the appellate court clearly assumed that the red dotted line on which the appellant relied was alleged by him in substance to be an artificial channel. It is on this footing that the appellants claim to have acquired a right by 40 years user was considered in both the courts. It was this claim which was disputed by the respondents and on which both the parties led evidence. Therefore, in our opinion, it was not open to the High Court to read the plaint and that too in a very technical manner and to hold that the courts below had completely misjudged the character of the appellants claim. Since the parties had proceeded to trial on the definite understanding that the channel through which the water flowed right up from the start up to the end was alleged to be an artificial channel it was too late for the respondents to suggest that the plaint should be strictly read and the provisions of s. 17(c) of the Easements Act should be invoked.8. Incidentally we may point out that the High Court should not have entered into the question of appreciating the evidence as it appears to have done in the last portion of its judgment. This Court has repeatedly pointed out that in second appeal the High Courts jurisdiction is confined to questions of law. In this particular case the District Court had pointed out that the trial court had made an obvious mistake in regard to the date of the construction of the Panbharan. After all the questions at issue had to be tried in the light of oral evidence and surrounding circumstances. In such a case, if the appellate Court recorded definite findings it was not open to the High Court to attempt to reappreciate that evidence. However, the decision of the High Court is based principally on the view that the High Court took about the application of S. 17(c) of the Easements Act to the allegations made by the appellant in the plaint; and as we have held in the circumstances of this case it was not open to the High Court to adopt such a course. If the channel represented by the red dotted line on the map was alleged to be an artificial channel there can be no doubt that S. 17(c) would be inapplicable.At the hearing of this appeal a preliminary objection was raised by the learned counsel for the respondents that leave should not have been granted because the appeal is against the decision of a single judge and the appellant did not avail himself of the right to make an appeal under the Letters Patent. Besides, it was urged that this Court usually does not, and should not, interfere with the decision of a single judge in a second appeal.There is considerable force in this contention. However, since leave has been granted we do not think we can or should virtually revoke the leave by accepting the preliminary objection.