M.M. Kumar, J. - (1.) This revision petition filed under Sec. 115 of the Code of Civil Procedure is directed against the order dated 1.9.1980 passed by Sub Judge, Ist Class, Phillaur on an application moved by the petitioner for amendment of the decree passed in Civil Suit No.82 of 1972, decided on 2,3.1973.
(2.) The plaintiff -petitioner (for brevity, 'the plaintiff) had filed a suit for permanent mandatory injunction to the effect that defendant -respondent (for brevity, 'the defendant') be restrained from digging pits and excavating earth from field Nos. 23/2 and 3/1. Further directions were sought against the defendant to order her to fill up the pits which she had dug with the object of stopping the passage of the water channel from the well Rahawala to the plaintiff's land as described in the plaint situated in village Nawan Pind Naicha, Tehsil Phillaur.
(3.) In order to settle the controversy, the trial Court framed three issues. On the first two issues, the findings recorded by the trial Court went in favour of the plaintiff. On issue No.1, whether a water channel existed on the boundary (butt) between Khasra Nos.22/2, 23/3, 2/1 and 3/1 the trial Court returned the finding that the water channel existed on the boundary of aforementioned khasra numbers. For reaching the aforesaid finding, the trial court referred to an order passed by the Sub Divisional Officer (Civil), Phillaur wherein the Sub Divisional Officer (Civil), had held vide his order dated 11.1.1967 that Malkiat Singh, husband -attorney of the defendant had forcibly demolished the Khaal in existence and had diverted the flow of water to another direction and had directed the reconstruction of the Khaal as it existed before in conformity with the consolidation scheme. This order was challenged by Shri Malkiat Singh, husband -attorney of the defendant and also by the defendant herself in two separate suits. These judgments have been exhibited as Ex. P4, P3 and P7. The effect of these judgments was that both the suits were dismissed and restoration of the old khaal was ordered. The learned Sub Judge dealt with the aforementioned issues in the following words: "These judgments reveal that the old water channel running from the well 'Rahawala' located in Khasra No. 6/27 was ordered to be restored. I find that in these orders the Khasra numbers in which the water channel flows were not mentioned. This omission has been made up by the attorney of the defendant and witness. Malkiat Singh (DW4) who is the husband and attorney of the defendant, stated in cross examination that the dispute regarding the same khal was taken up in the Court of SDO (C) Phillaur and the had appeared in that case. Similarly Ajit Singh (DW1) who is the husband and attorney of the defendant, stated in cross examination that he also stated that a case regarding the same water channel went up in the Court of SDO (Civil). This means that the orders of the courts referred to above relate to the water channel in dispute and to no other, The SDO (Civil) Phillaur passed an order for the restoration of the water channel when it has been demolished by Malkiat Singh. His order was upheld by the Civil Courts also. It is, therefore, manifest that the water channel existed on the boundary of Khasra numbers 22/2, 23/2, 2/1 and 3/1. On behalf of defendant no arguments were addressed on this issue. This issue is, therefore, decided in favour of the plaintiffs, ";