KISHORE KUMAR AND OTHERS Vs. JAGAT SINGH

JUDGEMENT

(1.) By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned Additional District Judge, Sirmaur District at Nahan, (H.P) , in Civil Appeal No.19- N/13 of 2003, dated 28.2.2005, vide which, the learned lower Appellate Court, has set aside the judgment and decree passed by the then learned Senior Sub Judge, Sirmaur District at Nahan, in Civil Suit No.45/1 of 2001, dated 14.1.2003.

(2.) Material facts necessary for adjudication of this Regular Second Appeal are that appellants/plaintiffs (hereinafter referred to as 'plaintiffs') maintained a suit for declaration and Permanent Prohibitory Injunction against the respondent/defendant (hereinafter referred to as 'defendants') alleging that the plaintiffs are residents of Village Dhar Kiyari, Tehsil Nahan, comprised in Khasra No.434/51 min, measuring 0- 9 bigha, Khasra No.52, measuring 4-3 bigha, Khasra No.53, measuring 0-3 bigha, Khasra No.63, measuring 5-9 bigha, Khasra No.71, measuring 0-8 bigha, Khasra No.72, measuring 0-10 bigha and Khasra No.73, measuring 2-14 bigha, situated in mauza Dhar Kiyari, Tehsil Nahan, District Sirmaur, which is being irrigated by the 'Kuhl' known as 'Ogal-Ki-Kuhl/Chasma Khala-Ki-Kuhl', which starts from the edges of Khasra No.351 and 352 and old Khasra No.85 and the plaintiff as well as their predecessor-in-interest had been irrigating their land. The plaintiffs are paying land revenue at the rate applicable since last settlement i.e. Samvat 1984-85 and having been using the same continuously openly and exclusively without any hindrance from anybody including the defendant. In the year 1998, defendant for the first time attempted to take water source through a rubber pipe of dia and to cause loss to the free flow of 'Kuhl' of the plaintiffs, therefore, they were constrained to lodge a complaint with Tehsildar, Nahan, but Tehsildar, Nahan, did not take any action in the matter. In the year 2001, the defendant again laid the rubber pipe with a view to take water from the source of disputed 'Ogal-Ki-Kuhl', despite the fact that he has no right, title or interest over the same, as the disputed 'Kuhl' is the exclusive source of water of the plaintiffs and despite their repeated request, the defendants did not desist from his illegal acts.

(3.) Defendant contested the suit and filed written statement whereby preliminary objections regarding maintainability, locus standi, cause of action and estoppel were taken. On merits, the plaintiffs were denied that any 'Ogal-Ki-Kuhl/Chasma Khala-Ki-Kuhl' started from the edges of Khasra No.351 and 352 and also denied that the plaintiffs have been irrigating their land through this 'Kuhl'. It is stated by the defendant that there exists a natural water source in the Government land, since time immemorial and the defendant is using its water for drinking purposes continuously without any obstruction from anyone. It is further stated by the defendant that the plaintiffs have no right, title or interest for taking of water by the defendant to his house for drinking purposes and it was stated that the Tehsildar, Nahan, rightly not entertained an application moved by the plaintiffs before him. The plaintiffs have failed to mention the existence of any 'Ogal-KiKuhl/Chasma Khala-Ki-Kuhl' and the defendant is using the water of the source continuously without any obstruction from anyone. The defendant has no source for drinking water except the source existing in the Government land and has not done any act, which is detrimental to the plaintiffs and the defendant has a right to get drinking water from the water source, which is existing in the Government land.