Tejinder Singh Dhindsa, J. - (1.) This second appeal by the defendants is directed against the judgment and decree passed by the Additional District Judge, Barnala, dated 26.5.1989, whereby he has accepted the appeal and reversed the judgment of the trial Court dismissing the plaintiffs' suit.
(2.) The plaintiffs filed a suit for grant of permanent injunction for restraining the defendants from forcibly digging the khal/watercourse in the suit land comprised in khasra Nos.75//9/2(1-2), 75//12(8-0). It was pleaded on behalf of the plaintiffs that they were owners of the suit land measuring 9 kanals 2 marlas. There was no khal in existence through the land of the plaintiffs and no khal passed through the suit land. The defendants wanted to dig a khal forcibly in the suit land belonging to the plaintiffs and consequently, the suit was filed. The defendants filed a written statement taking an objection that the Civil Court had got no jurisdiction and as such, the suit was not maintainable. On merits, the defendants averred that the khal had been in existence in the suit land for a large number of years and that the plaintiffs had demolished the said khal and on an application having been filed before the Sub Divisional Officer (Canals), an order dated 5.1.1984 had been passed under Section 30 of the Northern India Canal and Drainage Act, 1873 (hereinafter to be referred as '1873 Act') for restoration of the khal. It was also pleaded that the plaintiffs had filed an appeal before the Superintending Canal Officer, Sirhind against the order passed by the Sub Divisional Officer (Canals) and such appeal had also been dismissed.
(3.) Upon the pleadings of the parties, the following issues were framed: 1. Whether there is no khal in existence in khasra No.9/2 and 12 of rectangle No.75? OPP 2. If issue No.1 is proved, whether the plaintiffs are entitled to the injunction prayed for? OPP 3. Whether civil court has got no jurisdiction to try the present case? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Relief.;