- (1.) THIS is a revision against the order of the Additional Collector, Bhilwara dated 4. 10. 52. We have heard the learned counsel for the parties and examined the record. The brief facts of the case are that the applicant approached the Tehsildar Mandalgarh with a request u/s. 251 of the Rajasthan Tenancy Act, 1955 that the non-applicant was not allowing him to take water from well No. 1618 to which he was entitled in accordance with the entries in the revenue records. It was Khasra No. 1634 that was to be so irrigated. The learned Tehsildar Mandalgarh, after holding a local enquiry and taking evidence, accepted the application. But the learned Additional Collector, Bhilwara reversed the same only on the ground that it had not been proved that water was being taken by the applicant from the well No. 1618 after Smt. 2005, and hence this revision.
(2.) THE validity of the order of the lower appellate court has been challenged on the ground that it was not a case of easement and it was not necessary that a continuous user of the well should have been proved by the applicant. This contention is very well founded. Sec. 251 of the Rajasthan Tenancy Act lays down - "in the event of a dispute arising to the. . . . . . . . . the course or source by which he may avail himself of water, to which he is entitled from the tank, well or other source, the Tehsildar, may on application, after local enquiry, decide the matter with reference to the previous custom in each case and with due regard to the convenience of all concerned The previous custom referred to in this section, the learned counsel for the opposite party has contended, should be taken to mean a continuous custom and that if a party has been found not to be keeping it in use, the custom should not be presumed in his favour, This is not a sound view in law. The title of the applicant and also the use of the same by him from time to time is enough to entitle an application under this section to have the order passed in his favour. The applicant has produced evidence to the effect that he had been irrigating the disputed land from this well, and that he had irrigated this land out of this well even in Syalu of Svt. 20l4 and that it was only in Rabi of Svt. 2014 that his right had been contested and he was prevented from taking water. The finding of the learned lower appellate court also, therefore, that no water was taken out of this well after Smt, 2004 is not substantiated by the evidence produced. Even Khasra Girdawari of Smt. 2014 produced in the case goes to substantiate the claims of the applicant. Leaving this question even aside, however, if a land is entered as 'irrigable' from a particular source of water and classed as 'irrigated', on that basis, the holder of that land would be entitled to continue taking water from that well unless adjudicated upon otherwise by competent court. And it would not be necessary that he uses such water year in and year out. He would be free to utilise such water whenever he thought necessary. If any party wanted to prevent him from exercising such a right, that party should get a declaration to that effect in accordance with law from a competent Court. Of course, such a party would be within his right to charge 'pania (irrigation charges) in accordance with the custom prevailing in the village for such a user. In this case, the well No. 1618 does not belong to the applicant himself, but to the opposite party, who has purchased it from a third person and has spent some money in making it deeper and more abundant in supply of water. The applicant will, therefore, have to pay him the irrigation charges in accordance with the custom prevailing in the village. We, therefore, accept this revision, set aside the order of the learned Additional Collector, Bhiwara, and restore that of the learned Tehsildar, Mandalgarh with the proviso that the applicant will also have to pay to the opposite party irrigation charges for the use of the well in accordance with the custom prevailing in the village. .;