Deoki Nandan, J. - (1.) THIS is a defendants' appeal in a suit for injunc tion restraining the defendants from interfering with the plaintiff's user of a pukka well and two Neem trees, situate in plot no. 425 having an area of 1 Bigha 5 Biswas, in village Madrak and.directing them not to irrigate their fields from the well or to destory the trees. The plaintiff's case was that he had purchased plot no. 425 along with the well and the Neem trees from defendant no. 4, Smt. Nathia, daughter of Har Govind, by sale-deed dated 22nd August, 1966, and that the defendants asserted their rights on the well and the trees and wanted to forcibly cultivate their fileds from the well. It was further pleaded in the plaint that Har Govind the father of Smt. Nathia defendant no. 4 was the brother of Ulfat, both being, among others, sons of Manggu. Ulfat had two sons Chhokhey Lal and Khamni. The defendants were the three sons ofKhamni. In this manner Smt. Nathia was the defendants' fathers' brothers' daughter. The plaintiff pleaded that there was a plot no. 683 before consolidation of holdings operations. The well and the trees were situated thereon and that on consoli dation holdings, the said plot no. 683 was included in plot no. 425 which was allotted to Smt. Nathia as Sirdar, and having deposited ten times rent thereof on 22nd August, 1966, she became a Bhumidhar and sold the land along with the well and the trees to the plaintiff. The defendants' case was a denial of the allegation that the well and the trees in dispute were situate in plot no. 425 and an assertion of the fact that plot no. 683 consisted of 17 Biswas of land out of which only 15 Biswas were included in plot no. 425 during consolidation of holdings operations and that the remaining two Biswas, which contained the well and the trees, were allotted to the defendants. They further asserted that the well had been constructed by their father Khamni some 23-24 years before. The written statement is dated 5th September, 1969, and accordingly 23-24 years before that would take us to the year .1945-46 which was before the Abolition of Zamindari. The further plea raised by the defendants was that they had been irrigating their fields from the well in question openly as of right and without any interruption or obstruction from any one for more than 20 years, and were also entitled to continue to do so under section 30 of U. P. Consolidation of Holdings Act. About the trees it was alleged that they were planted by their father Khamni and tended by them and were situated in their plot no. 423 which was Abadi. The learned Munsif framed the following issues : 1. Whether the plaintiffs the owner of the well and trees in suit ?
(2.) WHETHER the well' and trees in dispute lie in plot no. 425 ? If so its effect ? Whether the defendants 1st party have a right to irrigate their plots by the well in suit as an easementary right and us 30 of U. P. C.H. Act ? To what relief, if any, is the plaintiff entitled ? On Issues nos. 1 and 2 the learned Munsif held that the plaintiff is not the owner of the well and the trees in suit and the well and the trees did not lie in plot no. 425, and on issue no. 3 that the defendants first set, i.e. the defen dant-appellants have a right to irrigate their plots from the well in suit as an easementary right as also under section 30 of the U. P. Consolidation of Holdings Act. In the result the learned Munsif dismissed the plaintiff's suit with costs to the defendants nos. 1 to 3, who are appellants in this Court. On appeal by the plaintiff to the District Court, the learned Additional Civil Judge, Aligarh, who heard and decided it, was highly critical of the findings of the learned Munsif on issues nos. 1 and 2. The learned Additional Civil Judge held that there was abundant material on record that plot no. 425 belonged to the plaintiffs, and that having confirmed, on 13th March, 1974, the report of the survey commission, which was issued by the trial court to an Advocate Sri. D.N. Varshni. It was not open to the trial court to have touched that report at the time of judgment and it should have been accepted as it was good, bad or indifferent. The learned Judge has gone on to hold that the trial court was bound to act upon the survey report as it was with regard to the correctness of the survey report the learned Additional Civil Judge, observed as follows : "Mr. Kapoor appearing for the respondents made an abortive bid to sustain the finding and the course as adopted by the learned court, but I must say very frankly that after having gone through the report, and the date therein, and the reasonings as given, the correctness of this report was not open to challenge. The learned commissioner had done his best in the circumstances as obtaining on the spot, and nothing better could have been expected in those circumstances. The learned Munsif had rightly upheld the report and made it part of the record, and it was only an error on its part to have gone against it. During the course of several years some Abadi cropped up, and therefore, that portion of this ex-plot no. 683 could not be measured by this learned Commissioner. The remaning area of 15 Biswas was available to him and he w.\s able to perform his job sufficiently well. I must say that like a drowning man these respondents are making attempt to catch a straw in the ocean, including in unnecessary hair spliting in order to 'sustain the judgment with a view to grab the properties in suit, but the record itself does not permit them to have it, and as I shall show presently, they are clearly exposed." In the view that he took, the learned Additional Civil Judge held that the well and the trees in suit were situate in plot no. 425, and without going into the law governing the ownership of wells and trees situate in a village, he held that since they were situated in plot no. 425 which belonged to the plaintiff, the well and the trees must also be held to belong to him and on this basis decreed the suit with costs throughout. However, having reached this conclusion the learned Judge has also dealt with the finding of the learned Munsif on issue no. 3 in the following words : "No argument was advanced about easementary right of the defendants to irrigate their plots from this disputed well. As I had said during the narration of pleadings of the parties, the defendants did not disclose in the written statement the plots numbers which formed dominent tena-ment. No evidence was adduced worth the name and the entries of the consolidation run counter to their plea. They could not establish any such right to irrigate any plot from the disputed well." Sri G.P. Bhargava, learned counsel for the appellants urged at the very outset that the reversal of the finding of the trial court on the right of the defendant-appellants under section 30 of the U. P. Consolidation of Holdings Act, is wholly illegal. It cannot be gain said that the trial courts' finding on this point was in favour of the defendant appellants. The plaintiff was the appellant before the lower appellate court, and notwithstanding a findings about the ownership of the well and the trees, and plaintiff would not succeed in the appeal unless he was able to get over the findings of the trial court on issue no. 3, for, if the defendant-appellants had a right to irrigate their fields from the well in question, under section 30, U. P. Consolidation of Holdings Act, the decree for injunction could not have been granted to the plaintiff. However, from the above observations of the lower appellate court in dealing with this issue, it is clear that either the correctness of that finding was not seriously challenged before the lower appellate court by the learned counsel for the plaintiff, who was the appellant before it, or if it was chal lenged, the lower appellate court failed to notice his arguments. It was certainly not for the defendants to advance arguments in support of the find ing unless it was first displaced by the arguments raised by the plaintiff, who was the appellant before the lower appellate court and the lower appellate court thought it necessary to call upon the defendants, who were the respon dents before it, to support the finding of the trial court. The observation of the lower appellate court, that the defendants did not disclose in the written statements the plot numbers which formed the dominant tenement is neither here nor there. From the very relief claimed by the plaintiff, it is clear that they defendants were irrigating some fields belonging to them from the well in suit, for if they had not been irrigating their fields from the well in suit there was no occasion for the plaintiff to have claimed a decree of injunction restraining them from doing so. Moreover the defendants have in their written statement positively asserted in two paragraphs nos. 13 and 14, that they were irrigating their fields from the well openly as of right of without any interruption or obstruction by any one and that they had a right of easement as also a right under section 30 of the U.P. Consolidation of Holdings Act to do so. It was, in my opinion, not necessary for them to specify the plot numbers of the fields which were being irrigated by them from the well, as on the own case of the plaintiff, that the respondents were irrigating their fields from the well or at any rate trying or intending to do so, it cannot be denied that the defen dants had certain fields to irrigate from the well in question. The learned counsel for the plaintiff- respondents in this court, has not been able to point out any entry from the consolidation records, referred to by the lower appellate court, which may be running counter to the defendant appellants case on this point. Under the circumstances, it is impossible to sustain the finding of the lower appellate court on issue no. 3, and inasmuch as the learned counsel for the plaintiff respondents only repeated the observations of the lower appellate court discussed above in his arguments against the finding of the learned Munsif on issue no. 3, which as demonstrated above, have no substance the finding of the learned Munsif on issue no. 3 must be restored as correct. This is sufficient for the dismissal of the plaintiffs' suit and it is strictly not necessary for me to deal with the main issue with regard to the ownership of the well and the trees. However, since in the course of hearing arguments in the appeal, I have come to the conclusion that the finding of the lower appellate court on this point also cannot be sustained. I must express my reasons there for. As I was rather disturbed by the observations made by the learned Additional Civil Judge, against the findings of the learned Munsif on issue nos. 1 and 2, and her manner of dealing with the problem I called upon the learned counsel for the plaintiff-respondent- to show how he supported the view adopted by the lower appellate court that the opinion expressed by an Advocate appointed as Commissioner to survey some land, is final and binding on the court appointing him, once the report is confirmed and admitted as evidence in the case. Sri A.K. Gupta holding the brief of Sri V.K. Gupta, cited before me the Privy Council decision in Chandan Mull Indra Kumar and others v. Chiman Lal Girdhar Das Parikh and another A.I.R. 1940 P. C. 3. Having carefully gone through the judgment of the Privy Council, I do not think that the Privy Council, has laid it down to be the law that a survey commissioner's report, "good, bad or indiiFerent", is binding on the court issuing the commission once it is confirmed and admitted as evidence in the case. On being confirmed, the report of a survey commissioner is undoubtedly read as evidence in the case, but that does not mean that any opinions expressed therein by survey commissioner are conclu sive and binding on the court. The report has to be examined in the light of the other evidence and the other evidence judged in the light of the report and the court has to arrive at its findings on the basis of the entire evidence on the record in the light of the pleadings of the parties on the issues that arise for decision in the case. In the course of the hearing before me I had occasion to look at the survey commissioner's report and the map prepared by him which is paper no. 65-C on the record. 1 also have before me Ext. 13 which is certified copy of the map prepared by the Consolidation Authorities, the correctness of which is not open to question. A bare look at the said map Ext. 13 would show that the north western side of the plot no. 425 which is also the south eastern side of the plots nos. 423 and 424, is almost a straight line. On the other hand in the map prepared by the survey commis sioner, there is an angular bungle at the junction of the plots nos. 423 and 424.in this north western boundary of plot no. 425, and it is interesting to note that the well and the trees in question are situate in the area covered by this angular bungle. Having carefully looked into the report of the survey commissioner and the analysis of measurement made by the learned Munsif with respect thereto and the undisputed fact that the survey commissioner could find no fixed point for starting the meausurements, I am satisfied that the learned Munsif as fully justified in rejecting the opinion of the Survey Com missioner, and in coming to the conclusion that it was not proved that the well and the trees in question lay in plot no. 425. There is one more aspect of the matter which is no less important. It was the plaintiff's positive case that the plot no. 425 along with the well and the trees was allotted by the Consolidation Authorities to his predecessor-in-interest namely Smt. Nathia defendant no. 4. There is no dispute that plot no. 425 included 15 Biswas out of the land of plot no. 683 and that the well and the trees were situate in plot no. 683 as it was before consolidation opera tions. It is also not disputed that although plot no. 683 had an area of 17 Biswas, only 15 Biswas out of it were included in plot no. 425 and further that this area of 2 Biswas, whereever it lay, was sufficient to cover the well and the trees in question. Now, the most important document, namely C.H. Form 23, Part II, which would have clearly shown the treatment meted out by the Consolidation Authorities to the well and the trees, does not appear to have been produced by the plaintiff respondent, although it was for him to establish, as one of the basic fact on which the right claimed by him was built up that the well and trees were allotted to Smt. Nathia by the Consolidation Autho rities as part of plot no. 425. It may be here observed that in the course of her observations on issue no. 3 the learned Munsif observed that the well was assessed at Rs.500/-, that it was for Smt. Nathia to raise an objection there but since she did not do so, therefore, she was ousted from the possession of the well. It was contended by the learned counsel for the plaintiff-respondent that these observations were based on no evidence. Now the assessment of compensation as made by the consolidation authorities is shown in C. H. Form No. 23, Part II, and if the contention of the learned counsel that there was no evidence in support of the contention be correct, it also shows that a copy of the relevant entries from C. H. Form No. 23, Part II, was not filed in the case. As observed above it was for the plaintiff-respondent to have done so in order to establish one of the basic facts on which his case was built up. On the other hand it is clear from a perusal of the other evidence on the record, particuarly Ext. 9, discussed by the learned Munsif in her judgment, that the well was built by Khamni, the father of the defendant appellants. Sri Bhargava for the appellants contended that having been built by Khamni, the well must be held to belong to him even if it was situated in land held by Smt. Nathia, or before her by her father Har Govind. Sri Bhargava, referred to section 9 of the U. P. Zamindari Abolition and Land Reforms Act, and to the fact that the opening words "All Wells", were substituted for the words "All private wells in holding, grove or Abadi", with retrospective effect from 1-7-1952 by U. P. Act No. XVI of 1953. In view of this provision, there is no escape from the conclusion that the well must have belonged to Khamni and after him to his sons, the defendant-appellants, even if it was situated in the land comprised in some one else's holding. The treatment of plot no. 683 by the consolidation authorities in leaving out an area of two Biswas there from and the subsequent entry in the Khasra of 1377 F vide Ext. AI, support the inference that the well and the trees were not situate in plot no. 425 and were the property of the defendant appellants. The lower appellate court has un necessarily been critical of the entry in 1377 F, and that too on bare suspicion without any material or evidence to cast any doubt about its correctness. In the result, the appeal succeeds and is allowed with costs. The judg ment and decree of the lower appellate court are set aside and the decree of the trial court dismissing the suit is restored with costs throughout.;