HOSHIARA AND OTHERS Vs. LAKSHMI NARAIN AND OTHERS

JUDGEMENT

(1.) This second appeal by the defendants is directed against the judgment and the decree passed by the Senior Sub Judge with Enhanced Appellate Powers, Sonepat, dated October 4, 1976, whereby he accepted the appeal and reversed the judgment of the trial Court dismissing the plaintiffs' suit.

(2.) The plaintiffs, claiming themselves to be the owners of the suit land and in possession thereof, brought a suit for injunction restraining the defendants from constructing a water course in their land. It was pleaded that the defendants in order to irrigate their land comprised in Khasra Nos. 28/1, 10, 11, 20 and 21/2, wanted to dig a water course along the boundary line of the land of the plaintiffs to which they had no right to do. It was alleged that there was a sanctioned water course along Killa No. 34/5/1 and other land and that there was no private agreement between the parties for running the water through the water course along the land of the plaintiffs. The suit was contested by the defendants on various pleas. It was pleaded by them that the water course along the land of the plaintiffs was in running condition even prior to the consolidation of holdings and the plaintiffs had agreed for the use of the same and that they (defendants) had also acquired a right of easement to run the said water course. On the pleadings of the parties, several issues were framed by the trial Court. The parties led evidence on those issues. The trial Court while relying on a Single Bench decision of this Court in Umed Singh v. State of Haryana,1970 PunLJ 503 found that even temporary water courses are covered by the Northern India Canal and Drainage Act and the Irrigation Department is competent to restore the same. In view of this finding, the trial Court held that the plaintiffs were not entitled for the injunction prayed for and accordingly dismissed their suit. Feeling aggrieved from the judgment and decree of the trial Court, the plaintiffs preferred an appeal which was heard by the Senior Sub Judge, Sonepat, with Enhanced Appellate Powers who upset the findings of the trial court, on Issue Nos. 4 and 6. Consequently, the appeal was allowed, the judgment and decree of the trial Court was set aside and the injunction as prayed for was granted in favour of the plaintiffs. Feeling dissatisfied from the judgment and decree of the first appellate Court, the defendants preferred R.S.A. No. 1750 of 1976 in the Court.

(3.) The contention raised before me by the learned counsel for the defendant- appellant is that the lower appellate Court has gravely erred by reversing the well-considered findings of the trial Court under Issues Nos. 4 and 6 and that the law laid down in a Division Bench decision of this Court in Jagar Singh v. Superintending Canal Officer, 1972 PunLJ 147 has been misconceived and misapplied in the present case. I regret my inability to accept this contention of the learned counsel.