PATEL BECHARBHAI LAVJIBHAI SINCE DECD Vs. MODH PATEL KHUSHALBHAI RAVJIBHAI

JUDGEMENT

(1.) The plaintiff-respondent and his brother Gulabchand were the owners of fields bearing survey Nos. 11 12 13 14 15 and 16 situated within the limits of the village Gota in Sabarkantha district. They sold survey numbers 11 13 14 15 and 16 to deceased Becharbhai Lavaji-. bhai and Patel Becharbhai Nathabhai by the sale deed executed on 18-1-1954 A few years after the execution of the above sale deed plaintiffs brother Gulabchand died. According to the sale deed survey Nos. 11 13 and 15 are bagayat lands; whereas the rest of the survey numbers comprised of jirayat lands. According to the plaintiff the purchasers of the aforesaid lands had no right to draw water from the well situated in survey No. 12 which continued to remain in possession of the plaintiff. Inspite of the above position the purchasers installed a pump on the above well for the purpose of drawing water for irrigating their own lands. They also wanted to make construction near the well. The plaintiff therefore filed a suit B Civil Suit No. 64 of 1968 in the court of the Civil Judge Junior Division Idar to obtain an injunction restraining the aforesaid persons front drawing water from the suit well and from installing the water pump on the suit well and making any construction near the well.

(2.) The defendants by their written statement Ex. 31 denied the suit. According to them they had purchased the lands in question with a right to draw water from the suit well. They had also contended that the suit was barred by estoppel laches and acquiescence.

(3.) The learned trial Judge dismissed the suit it so far as it related to the prayer for permanent injunction restraining the defendant from taking water from the suit well by means of a Kos or Renht. The rest of the suit was allowed. Being aggrieved by the decree of the trial court the plaintiff preferred an appeal to the court of the Joint Judge Ahmedabad (rural) at Himatnagar. The defendants had also filed cross-objections which were dismissed by the learned Judge. The appeal preferred by the plaintiff was allowed and all the reliefs asked for by him in the plaint were granted. Being aggrieved by the decree of the learned Joint Judge the defendants have come in appeal. The appellant No. 1 (defendant No. 1) having died during the pendency of the appeal his legal representatives have been brought on record.