Himachal Pradesh High Court
___________________________________________________________ vs Government Of Himachal Pradesh & Anr on 14 June, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
RSA No.629 of 2007
.
Date of Decision: 14th June, 2019
___________________________________________________________
Govind Ram & others ..... Appellants.
Versus
Government of Himachal Pradesh & Anr. ... Respondents.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Appellants : Mr. Sunil Mohan Goel, Advocate.
For the Respondents : Mr. Sanjeev Sood, Additional
Advocate General.
Sandeep Sharma, Judge (oral)
Instant Regular Second Appeal is directed against the judgment and decree dated 13.09.2007, passed by learned Additional District Judge(Fast Track) Kullu, H.P., in Civil Appeal No.12 of 2007, affirming the judgment and decree dated 2.2.2007, passed by learned Civil Judge (Senior Division) LahaulSpiti at Kullu, District Kullu, H.P., in Civil Suit No.126 of 2003, whereby suit for declaration and permanent prohibitory injunction having been filed by the 1 Whether reporters of the local papers may be allowed to see the judgment?
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appellants ( hereinafter referred to as the 'plaintiffs'), came to be dismissed.
.
2. Precisely, the facts of the case as emerged from the record are that plaintiffs filed suit for declaration and permanent prohibitory injunction in representative capacity on behalf of all owners and proprietors of Phati Fozzal, r to Mandalgarh and Hurang respectively, averring therein that they have been irrigating their land(s) by using water coming from Doli Nallah, which exists from the time immemorial. Plaintiffs further claimed that their right to take water from the aforesaid source is customary right, as stands recorded in the revenue record and as such, it cannot be taken away. Plaintiffs further averred that water of Doli nallah and Shalari nallah is meagre and insufficient to irrigate the land of the plaintiffs and others villagers, however, the defendants approved the water supply scheme from the above said nallahs to benefit some persons, who have otherwise no right over the water of disputed source.
Plaintiffs further averred that defendants are intending to to divert the natural flow of the water of the disputed source, ::: Downloaded on - 28/09/2019 23:28:43 :::HCHP ... 3...
causing irreparable damage to the paddy crops of the plaintiffs. Plaintiffs averred that in case the defendants are .
allowed to take the water from the disputed water source, the valuable right of the plaintiffs and others villagers to irrigate their land(s) would be greatly prejudiced and jeopardized and their land(s) would become barren.
3. Defendants by way of written statement refuted the aforesaid claim of the plaintiffs and claimed that the plaintiffs have no right, if any, over the water of the disputed source. Though, admitted that water of Doli Nallah flows through Shalari Nallah and similarly, water of Shalari Nallah flows through Jhakari Nallah, but claimed that people from village Shalari have been already provided water for drinking purpose from the spring source. which exits near Shalari Nallah. Defendants claimed that there exists a community kuhal at a distance of about 120 metres downwards from the aforesaid spring source. Defendants further averred that discharge of said kuhal is 4 LPS or 345600 litres per day, but now presently the area concerned has been brought under horticulture and as such, less ::: Downloaded on - 28/09/2019 23:28:43 :::HCHP ... 4...
quantity of water is required to irrigate the same. Defendants also claimed that remaining water of Shalari Nallah as well .
as waste water of Jhakari nallah has been tapped to the extent of 05 LPS at a distance of 55 metres away from the aforesaid community kuhal with a view to provide drinking water to the residents of village Shim and still water to the r to extent of 0.21 LPS is flowing in Jhakari nallah and as such, there is no force in the claim of the plaintiffs that with the introduction of water supply scheme, no sufficient water is left for irrigation of the land. Defendants averred in the written statement that they have constructed water supply scheme for most needy and deprived people of village Shim,which is adjoining to the source. Defendants specifically denied that plaintiffs have been sowing paddy crop because most of them are producing horticultural produce, which require very less quantity of water. Defendants further claimed that paddy is grown during the rainy season, during which period there is sufficient water in the nallah.
Defendants further submitted that they started and completed the work of tapping the water of the disputed ::: Downloaded on - 28/09/2019 23:28:43 :::HCHP ... 5...
source in month of November, 2003 and at no point of time objection, if any, ever came to be raised on behalf of the .
plaintiffs and other villagers and since then people of village Shim are being provided drinking water through that scheme.
4. On the pleadings of the parties, the learned trial "1.
r to Court framed the following issues: Whether the plaintiffs and other land owners have exclusive right to use the water of the disputed sources, as alleged? OPP.
2. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed for? OPP
3. Whether in the alternative the plaintiffs are entitled for the relief of mandatory injunction?OPP.
4. Whether this suit is not maintainable in the present form? OPD.
5. Whether the plaintiffs have no locus sandi to file the present suit? OPD.
6. Whether this suit is bad for non joinder of necessary parties?OPD.
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7. Whether the plaintiffs are estopped to file the present suit due to their acts, conduct and acquiescence? OPD.
.
8. Relief.
5. Subsequently, learned trial Court on the basis of the evidence adduced on record by the respective parties, dismissed the suit of the plaintiff vide judgment and decree dated 2.2.2007.
6. Feeling aggrieved and dissatisfied with the dismissal of the suit, plaintiffs filed civil appeal under Section 96 of the Code of Civil Procedure in the Court of learned Additional District Judge(Fast Track) Kullu, H.P., however fact remains that same was also dismissed vide judgment and decree dated 13.09.2007. In the aforesaid backdrop, plaintiffs have approached this Court in the instant proceedings, praying therein to decree their suit after setting aside the judgments and decrees passed by the learned Courts below.
7. On 31.12.2007, this Court admitted the appeal at hand on the following substantial questions of law: ::: Downloaded on - 28/09/2019 23:28:43 :::HCHP ... 7...
"(1) Whether both the learned Courts below have erred in not granting the relief of permanent prohibitory and mandatory .
injunction in favour of the plaintiffs when there was a concurrent finding in favour of the plaintiffs that the plaintiffs and other land owners have exclusive right to use the water of the disputed source.
2. Whether the defendants can interfere in the exclusive rights of the plaintiffs and other land owners to use the water from the disputed sources which stands proved from revenue records and records of rights to the prejudice of the r plaintiffs and other land owners?.
8. Having heard learned counsel representing the parties and perused the evidence, be it ocular or documentary led on record by the respective parties, this Court finds no force in the arguments of Mr. Sunil Mohan Goel, learned counsel representing the plaintiffs that learned Courts below have failed to appreciate the evidence in its right perspective, rather this Court finds that there is no evidence, worth the name, led on record by the plaintiffs to demonstrate that plaintiffs have exclusive right, if any, to use the water of Doli Nallah for irrigating their land(s).
Though, plaintiffs have stated in their plaint that right to use water flowing from Doli Nallah and Shalari Nallah is ::: Downloaded on - 28/09/2019 23:28:43 :::HCHP ... 8...
their customary right, but interestingly, this Court was unable to lay its hand to any evidence, be it oral or .
documentary led on record to the effect that water flowing from the above said nallahs was being exclusively used by the plaintiffs or other villagers of village Jhakari from the time immemorial, rather evidence available on record clearly r to reveals that water supply scheme commenced in the month of November, 2003 and same was completed 12.11.2003 and at no point of time, objection, if any, ever came to be raised on behalf of the plaintiffs or other affected parties. Aforesaid no objection on the part of the plaintiffs and other villagers certainly corroborates the stand taken by the defendants in their written statement that they have setup water supply scheme not at the source, but 50 meters away from that using remaining and waste water.
9. Issue with regard to right to use the water from the disputed source stands decided in favour of the plaintiffs and same has attained finality because defendants has not laid challenge, if any, to such findings given by the learned trial Court. Question which remains to be decided in the ::: Downloaded on - 28/09/2019 23:28:43 :::HCHP ... 9...
instant proceedings is that "whether courts below erred in declining the prayer for permanent prohibitory injunction, as .
prayed for by the plaintiff or not". Admittedly plaintiffs or other villagers are neither in possession of the disputed source or having any title qua the same, rather disputed source/property belongs to State of Himachal Pradesh and as r to such, no injunction, if any, could be granted against the true owners, who otherwise have not denied the right, if any of the plaintiffs to use water flowing from the disputed source.
If the statements having been made by PW1 and PW2 are read juxtaposing revenue entries in the jamabandis Ex.P1 to Ex.P6, it certainly suggest that right of the plaintiffs and other villagers to irrigate their land from the disputed water source stands recorded in the revenue record, but that may not be sufficient to conclude that plaintiffs and other villagers have exclusive right to use water flowing from the disputed source, which is admittedly Government property.
10. Leaving everything aside, there is no plausible explanation rendered on record by the plaintiffs that why they failed to object the approval of water supply scheme ::: Downloaded on - 28/09/2019 23:28:43 :::HCHP ... 10...
from the disputed source in the month of November, 2003 when work was commenced. Suit at hand came to be filed .
after completion of work of water supply scheme, which as per record was completed on 12.11.2003. Otherwise also, it is not in dispute that even as of today plaintiffs and other villager of village Jhakhari have been using water from the r to disputed source for the purpose of irrigating their land.
Substantial questions of law are answered accordingly.
11. This Court sees no irregularity and infirmity, if any, in the judgments passed by the courts below, rather, same are based upon correct appreciation of the evidence available on record. This Court is fully satisfied that both the courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever, in the present matter. Since both the Courts below have returned concurrent findings, which otherwise appear to be based upon proper appreciation of evidence, this Court has very limited jurisdiction/scope to interfere in the matter. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by ::: Downloaded on - 28/09/2019 23:28:43 :::HCHP ... 11...
Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, herein below: .
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
[1313 12. Consequently, in view of the discussion made hereinabove, this Court is of the view that the judgments and decrees passed by both the Courts below are based on correct appreciation of the evidence, be it ocular or documentary on ::: Downloaded on - 28/09/2019 23:28:43 :::HCHP ... 12...
the record and, as such, present appeal fails and same is accordingly dismissed.
.
Interim directions, if any, are vacated. All miscellaneous applications are disposed of.
(Sandeep Sharma ) 14 June, 2019 th Judge (shankar) ::: Downloaded on - 28/09/2019 23:28:43 :::HCHP