S.P.Srivastava - (1.) THIS is a defendants second appeal arising out of a suit for recovery of damages along with an interest at the rate of 6% per annum pendente lite and future.
(2.) THE trial court had decreed the suit in part assessing the extent of damages to be only Rs. 5,500 as against Rs. 11,000 as claimed. THE defendants felt aggrieved by the same, preferred an appeal which was dismissed, hence, the present second appeal. I have heard the learned counsel for the parties and have carefully perused the record. The facts in brief, shorn of details, lie in a narrow compass. Prior to the filing of the suit giving rise to the present appeal, the plaintiff had filed a suit being suit No. 1 of 1976 seeking a decree of permanent prohibitory injunction restraining the defendants from demolishing or damaging the nali detailed in the map attached with the plaint which was used for irrigating the agricultural holdings of the plaintiff, further requiring the defendants not to interfere in the plaintiffs use of nali in dispute for the purpose of irrigating his agricultural holdings.
(3.) DURING the pendency of the aforesaid suit, the defendants has demolished a large part of the nali in suit. The plaintiff in the circumstances got his plaint amended and claimed a further relief claiming a decree of mandatory injunction requiring the defendants to restore the nali in question to its original condition and in case they failed to do so prayed that the same be allowed to be restored by the plaintiff through court. The aforesaid suit had been filed asserting that the plaintiff had acquired a prescriptive right of assessment. In regard to the user of the nali for the purpose of irrigating his agricultural holdings taking water from the two tanks apart from his own well. A part of the nali in dispute passed through the land belonging to the defendants. The suit referred to above who dismissed by the trial court but an on appeal by the plaintiff reversing the decree of the trial court, his suit was decreed by the first appellate court. The appellate decree was for a mandatory injunction directing the defendants to restore the nali in suit within three months and further restraining them permanently from interfering with the right of the plaintiff to irrigating his fields through the nali in suit from his tube well installed in chak No. 621 and from the tank in plot Nos. 602 and 610 as shown in the map attached with the plaint. The decree further provided that if the defendants failed to restore the nali within three months from the date of the decree, the plaintiff would be entitled to get it restored at the cost of the defendants.;