CHINTAMANI Vs. MOHAN SINGH

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment and decree dated 9 -8 -1982 passed by the I Additional District Judge, Nainital in Civil Appeal No. 159 of 1980, Mohan Singh and Anr. v. Chintamani and Ors. By the impugned judgment and decree, the first Appellant court has partly allowed the appeal preferred by the Defendant Nos. 1 and 2 against the judgment and decree dated 25 -9 -1980 passed in Original Suit No. 7 of 1980 by the trial court.

(2.) THE following substantial questions of law are involved in this appeal:

(3.) THE Defendant Nos. 1 and 2 resisted the suit and filed their written statement. They denied that the Plaintiffs were the owners in possession of the plots detailed in the plaint. According to them, plot Nos. 295 and 272 were in possession of the Defendants from long before and the Plaintiffs had no concern therewith. They denied that the Plaintiffs had acquired any easementary right as alleged by them. They denied to have diverted the course of natural rivulet. According to them, they had their filed (sic) in plot No. 272 and they had effected some improvement therein. They also claimed that they had only constructed a wall to safeguard their fields from erosion by the flowing water of the rivulet. It was asserted that the suit is bad for non -joinder of the State.