Decided on May 26,1950

Partapa Baru And Ors. Appellant
Karar Singh And Anr. Respondents


Chopra, J. - (1.) THIS second appeal is directed against the decision of the District Judge, Patiala, decreeing the Respondents' suit for permanent injunction which had been dismissed by the trial Sub-Judge. The Respondents claimed that their fields Nos. 564 to 568 were irrigated from a well known as Baghwala by means of a channel passing through a field of the Appellants. They alleged that the channel which existed and was being used by them for more than 30 years had been recently dismantled by the Defendants and prayed for its restoration. The Defendants controverted these allegations and categorically denied the existence of any channel passing through their fields. They further pleaded that the Plaintiffs used to get water from wells other than Baghwala. The trial Sub -Judge found that the Plaintiffs had failed to prove their allegations and deciding the only issue framed in the case against them dismissed the suit. The learned District Judge differed from this finding and arrived at the conclusion that one of the fields namely, Khasra No. 568 had been proved to be irrigated since the last settlement from this well and by a channel passing through Khasra No. 576, a field owned by the Defendants. He accepted the appeal and decreed the suit. This is Defendants' appeal.
(2.) AS regards the existence of the channel in the Appellants' field their counsel has very little to say. The Plaintiffs' share in the Baghwala well and the irrigation of Khasra No. 568 from this well, though specifically denied in the written statement, had to be admitted by the Defendants in their statements in Court. It was further admitted by Partap Singh Defendant that this field was being irrigated from this well since the last settlement i.e., for more than 40 years. The plea subsequently taken by them was that it was being irrigated by a channel which lay on the eastern and southern boundaries of their field No. 576 while the Plaintiffs claimed that it existed on its northern and western boundaries. The dispute therefore centred round the question whether the channel existed on the eastern or the western boundary of Khasra No. 576. The local patwari besides proving the entries in the revenue records' which showed that Khasra No. 568 was since long being irrigated from Baghwala well stated that he had seen a demolished khal on the western side of Khasra No. 576. He being an independent witness his testimony would obviously carry much weight. The oral evidence produced by the Plaintiffs also supported their case. The solitary witness namely Kirpal Singh examined by the Defendants in rebuttal admitted that he was fighting out a case with one of the Plaintiffs. Otherwise also as remarked by the District Judge he does not appear to be a truthful witness. He tried to deny facts which stand admitted even by the Defendants. Sardar Tehal Singh has drawn my attention to a remark in the judgment of the trial Sub -Judge regarding certain observations made by him on the spot. What he says in the judgment delivered on 31 -1 -2003 is that he had inspected the fields in question and had found no signs of any channel in the fields of the Defendants. The counsel, therefore, wants me to discard the evidence of the patwari with respect to what he had stated to have seen on the spot. It may be remembered that the statement of the patwari was recorded long before the Sub -Judge might have inspected the spot and the signs of the khal might have been by then obliterated by the Defendants. I cannot also fail to observe that on going through the whole record I do not find any separate note of the observations made by the trial Judge on his inspection of the spot, nor does the record show as to when did he decide to go there. The Defendants closed their rebuttal on 7 -11 -2002 and the case was fixed for arguments on 21 -11 -2002. It had then to be adjourned a number of times to accommodate the counsel or because the Court had no time to attend to this case. The arguments were read on 7 -1 -2003 and the case was adjourned to 13th and then to 27th and 31st Besakh for pronouncing judgment. The case was finally decided on this last date. The record does not show that the parties ever requested the Court or the Sub -Judge himself expressed his inclination to inspect the spot. There is no indication in any of the interlocutory orders that the spot would be or had been inspected. To say the least this practice of a secret visit to the spot without a request of the patties or without informing them of the Court's intention and also of keeping no note of the observations made is highly depreciable . To make use in the judgment of certain impressions gathered on the spot without any record thereof is not permissible. I do not know how long before the judgment was written the Sub -Judge was on the spot and how far he could remember what had been seen by him there. The sooner this practice ia put an end to is better.
(3.) AFTER a careful consideration of all the evidence on the record, I see no reason to differ from the finding of the District Judge with respect to the continued existence of the Khal on the Northern and Western boundaries of the Defendants' field No. 576. It is further clear that this khal was used to irrigate Plaintiffs' field No. 568 only. It cannot, therefore, be denied that the Plaintiffs have acquired by easement a right to irrigate this field No. 668 by means of this channel. As regards the other fields viz. 564 to 567 which adjoin this field there is absolutely no evidence that they were being irrigated by the channel in question; this is not denied even by the counsel for the Respondents.;

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