RARUHA SINGH Vs. ACHAL SINGH

JUDGEMENT

(1.) In the suit from which this appeal by special leave arises the appellant had claimed a mandatory injunction against the defendants (respondents) requiring them to remove the obstruction to the flow of water from Khasra No. 2 to Khasra No. 254 as shown in the map attached to the plaint as well as a perpetual injunction restraining the respondents from repeating such acts in future. The appellant's claim was dismissed by the trial court. On appeal before the Additional District Judge the appellant succeeded and both the injunctions claimed by him were ordered to be issued. The respondents then moved the High Court of Madhya Pradesh by second appeal which was allowed and the appellant's claim dismissed with costs throughout. It is against this decree that the appellant has come to this Court by special leave.

(2.) In his plaint the appellant alleged that until the abolition of proprietary rights under the Madhya Pradesh Act I of 1951 he was a protected Thekedar of village Kongiya Kala for about 40 years. He held and was in possession of 20 pieces of Malik Makbuza lands and 11 Raiyati lands which were specified in paragraph 2 of the plaint. Of these lands Khasra No. 137 is a Bandhiya known as 'Baderatwa'; Khasra Nos.. 254, 253, 255, 450 and 447 also constitute another Bandhiya known as 'Banbharan', while Khasra Nos.. 245 and 246 constitute 'Hiriya-Sahi' Bandhiya. According to the appellant these Bandhiyas were used by him for collecting water for irrigation of his other adjacent fields. The appellant's field, Khasra No. 2 which is known as Budhwa Bharri adjoins Mouza Kansitola khar. The rain water of the said khar in its natural course flows into the appellant's fields. The said rain water also flows into the adjacent lands of Khasra No. 123 belonging to respondent 1, that land being on a lower level, and from the said land it flows through Khasra Nos.. 133 and 136 into Baderatwa Khasra No. 137. At this latter Khasra water is collected and let off as required for filling Khasra No. 254 and others. When the rainfall is normal the water is let off through Khasra No. 156 at or near point M. 1 shown in the map, and when the rainfall is excessive it is let off at point M. 2 in Khasra No. 137 and through Khasra No. 136 at point M. 3 as well as through artificial channels seasonally prepared across the 'dharsa' Khasra No. 114. The water thus reaches Khasra No. 163 wherefrom it goes to Khasra Nos.. 159, 233, 251 and 252 and then into Khasra No. 254. In the said Khasra the water is collected and used for irrigating the appellant's paddy fields on the east and south of Panbharan. The plaint specifically alleged that the course through which the water flows from Khasra No. 2 until it reaches Khasra No. 254 had been shown on the map in the red dotted line. According to the plaint the appellant had been enjoying the natural right to have the water of his field Khasra No. 2 flow off into the field of respondent 1, Khasra No. 123, and through it to the appellant's other fields uninterrupted for more than 40 years but the same had been obstructed in June 1954. It is this obstruction which gave the appellant a cause of action for the present suit.

(3.) This claim was denied by the respondents. In regard to the appellant's allegation that the course through which water flows had been shown in red dotted line on the map the respondents alleged that it was not a natural flow nor was the appellant ever taking the water through that passage. In regard to the user for 40 years on which the appellant relied the respondents made a general denial. As will presently appear we have set out the pleadings at some length because the only question which arises for our decision in this appeal is whether the High Court was justified in dismissing the appellant's claim on the ground that his case as made out in the plaint had been misunderstood by the two courts below.