Himachal Pradesh High Court
Ram Swarup And Others vs Narinder Parkash And Others on 7 May, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 263 of 2013 .
Reserved on: 4.5.2015 Decided on: 7.5.2015 ______________________________________________________ Ram Swarup and others. ...Appellants.
Versus Narinder Parkash and others. ...Respondents. ______________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate.
For the Respondents : Mr. Neeraj Gupta, Advocate for respondent No.2.
None for other respondents.
____________________________________________________________ Justice Rajiv Sharma, Judge.
This Regular Second Appeal is directed against the judgment and decree dated 5.1.2013 rendered by the Addl. District Judge, Fast Track Court, Solan in Civil Appeal No. 10 FTC/13 of 2010.
2. "Key facts" necessary for the adjudication of this appeal are that the appellants-plaintiffs (herein after referred 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:08:09 :::HCHP 2 to as 'plaintiffs' for convenience sake) have stated that they are owners-in-possession of the land situated in village .
Dangheel and Bhuira pargana Pashgaon, Tehsil Kandaghat, District Solan. These villages are adjacent to each other. It is stated that out of land located in village Dangheel and Bhuira, land measuring more than 150 bighas was being irrigated through Kuhal No.5 known as "Nal Ka Banda"
since time immemorial openly, peacefully, continuously and uninterruptedly. Respondents-defendants (herein after referred to as 'defendants' for convenience sake) have no right to cause any kind of interference in the flow of water from Kuhal No.5 known as "Nal Ka Banda" in any manner. The Kuhal originates from "Sharatu Ka Nala at point 'A' as shown in rough site plan. Besides "Pataru Ka Nala" and Bagh Ka Nala are the tributaries of Sharatu Ka Nala. Pataru Ka Nala merges in the Sharatu Ka Nala at point 'B' and Bagh Ka Nala joins the Sharatu Ka Nala at point 'C'. It is stated that the defendants who are inhabitants of the villages Sayola and Kharanji threatened to tap the water from Sharatu Ka Nala and Bagh Ka Nala with the help of Alkathene pipe to their houses.
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3. The suit was contested by defendants No. 3, 4, 6 and 7. Defendant No.2 has filed separate written statement.
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According to the defendants, plaintiffs have not disclosed Khasra numbers and area which were irrigated by them from different water sources. It was denied that the land of the plaintiffs was being irrigated from Kuhal No.5 since time immemorial. It was also denied that the defendants were interfering with the flow of water of Kuhal No.5. The source of Kuhal No.5 Nal Ka Banda was also denied. It was denied by defendant No.2 that he was causing interference in the Kuhal. After the death of Sant Ram, he was using the water peacefully, continuously and without any interruption.
Defendant No.5 has also stated that the lands were being irrigated as per Riwazat Ab Pashi.
4. Issues were framed by the Civil Judge (Junior Division) on 28.9.1999. She dismissed the suit on 30.3.2010. Plaintiffs filed an appeal before the Additional District Judge, Fast Track Court, Solan. He dismissed the same on 5.1.2013. Hence, the present appeal.
6. Mr. G.D. Verma, learned Senior Advocate, for the appellants, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below ::: Downloaded on - 15/04/2017 18:08:09 :::HCHP 4 have misconstrued and misread the oral as well as documentary evidence. He then contended that in order to .
ascertain the exact position at the spot, local commissioner ought to have been appointed. He has further contended that the suit was maintainable on behalf of the plaintiffs.
7. Mr. Neeraj Gupta, Advocate, has supported the judgments passed by both the Courts below.
8. I have heard the learned counsel for the parties and have gone through the records carefully.
9. Since all substantial questions of law are interlinked, they are being discussed together to avoid repetition of discussion of evidence.
10. PW-1 Ram Swaroop has proved site plant Ext.
PW-1/A. According to him, the original source of water of Nal Ka Banda was from Sharatu Ka Nala, Patru Ka Nala and Bagh Ka Nala. According to him, defendants have no right to interfere in Sharatu Ka Nala and Pataru Ka Nala.
According to him, if the water is used by the defendants, the supply of water to their lands would be drastically reduced.
The sketch PW-1/A was prepared by his son namely Susheel, who was student of +2 in Chail. However, Ext. DW-4/C relied upon by the defendants has been prepared by DW-4 ::: Downloaded on - 15/04/2017 18:08:09 :::HCHP 5 Dharmender Verma, who was qualified draughtsman. He has prepared Ext. DW-4/A after visiting the spot in the presence .
of 6-7 villagers. PW-1 has admitted that below Nal Ka Banda, there is Bagh Ka Nala and there are houses of Kartar and Phulma Devi. There are 3 flour mills, one run by Bhagat Ram second by Phulma Devi and third one by Shiv Ram.
11. PW-2 Sant Ram has placed on record Hindi translation of documents Ext. PW-2/A to Ext. PW-2/C.
12. DW-1 Narender Parkash has led his evidence by filing affidavit Ext. DW-1/A. In his cross-examination, he has denied that Sharatu Ka Nala emerges into Pataru Ka Nala.
13. DW-2 Hari Krishan has led his evidence by filing his affidavit Ext. DW-2/A. He has denied the suggestion that Bagh Ka Nala emerges into Sharatu Ka Nala.
14. DW-3 Dharam Dutt has corroborated the statements of DW-1 Narender Parkash and DW-2 Hari Krishan, respectively. He has proved map Ext. DW-4/C. He has placed on record, copy of diploma certificate Ext. DW-
4/B.
15. DW-5 Hardev has deposed that they wanted to take water forcibly from Sharatu Ka Nala.
::: Downloaded on - 15/04/2017 18:08:09 :::HCHP 616. There is no specific reference to Khasra numbers in the pleadings of the plaintiffs. The map Ext. PW-1/A is a .
rough map. The map placed on record by defendants is Ext.
DW-4/C. The plaintiffs have also not mentioned Khasra numbers, which are being irrigated through Kuhal No. 5. It is not mentioned from which point, the pipes have been installed by the defendants. The plea of Mr. G.D. Verma, learned Senior Advocate that the local commissioner has not been appointed merits rejection. The plaintiffs, as noticed hereinabove, have not given even the Khasra numbers, which were alleged to have been irrigated from Kuhal No.5. Ext. P1 to Ex. P4 Riwazat Ab Pashi do not support the case of the plaintiffs. The factual position as shown in Ext. DW-4/C is in conformity with the statements of the witnesses with regard to the source of water. Ext. DW-4/C has been prepared by an expert and PW-1/A has been prepared by the plaintiff and his son. The son of the plaintiff has not appeared in the Court.
The plaintiffs have also not added other co-villagers as party.
17. Both the learned Courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments and decrees passed by the Courts below.
::: Downloaded on - 15/04/2017 18:08:09 :::HCHP 718. In view of the analysis and discussion made hereinabove, no question of law, much less to say substantial .
question of law, involved in the present appeal, and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.
(Justice Rajiv Sharma), Judge.
7.5.2015 *awasthi* ::: Downloaded on - 15/04/2017 18:08:09 :::HCHP