Patna High Court
Bachu Singh And Ors. vs Bilaso Kuer And Ors. on 5 July, 1967
Equivalent citations: 1968(16)BLJR515
JUDGMENT Shambhu Prasad Singh, J.
1. This second appeal is by defendants first party against the concurrent judgments and decrees of the two courts below decreeing the suit of the plaintiffs for declaration that plot No. 366 of village Sahopur is, a tank and plot No. 367 a Karha and are sources of irrigation in respect of paddy and rabbi crops grown on the lands to the north of the tank in Kita Nonphar and the landlords (defendants second party) had no right to settle the aforesaid two plots with the appellants, and the latter had no right to cultivate, and for an injunction directing the appellants to restore the two plots to their original state.
2. Briefly stated, the case of the plaintiffs was that plot No. 366 was a reservoir receiving water from various plots, including the Karha plot No. 367, as detailed in the plaint, and the tenants of Kita Nonphar, including the plaintiffs, had been irrigating their lands from time immemorial by cutting the northern Alang of the tank. In the year 1950, the defendants first party obstructed to the exercise of the said right by the plaintiffs and other tenants by filling up the Karha (plot No. 367) and cutting the western Alang of the tank in plot No. 366. They also started cultivating these two plots and asserted that they had taken settlement of these two plots from the landlords (defendants second party).
3. The defence of the defendants first party, that is, the appellants, was that the two plots became culturable soon after the publication of the record of rights in the year 1916 and the landlords started cultivating them; that no one had any right of any irrigation from these two plots and that they took settlement from the landlord on 14th December, 1941, which was legal and valid.
4. The suit was decreed on 7th April, 1954, but the trial court while decreeing the suit observed that the plaintiffs would obtain permission from the defendants for taking out water from plot No. 366 for irrigational purposes. On appeal by the plaintiffs, the Subordinate Judge modified the decree of the trial Court by removing the condition of obtaining permission from the defendants before taking out water and confirmed the decree of the trial Court in other respects by his judgment and decree dated 24th September 1955. There was a second appeal by the defendants first party (Second Appeal No. 1986 of 1955), which was disposed of by this. Court on 1st of December 1958. The judgments and decrees of the Courts below were set aside and the case was sent back to the trial Court for a fresh disposal in the light of the observations made and directions given in the judgment. According to the directions given in the said judgment, the case was to be reheard by the trial Court and it was to give an opportunity to the plaintiffs to suitably amend the plaint by specifying the plots and the area to the north of plot No. 366, to which right of irrigation appertained. It was also left open to the plaintiffs to confine the suit either to themselves or to take steps under Order 1, Rule 8, Code of Civil Procedure for making it representative suit, if all the owners of the plot were not already on the record as plaintiffs. The trial Court was also directed to give an opportunity to the defendants to amend their written statement or put an additional written statement after the amendment of the plaint by the plaintiffs, and to allow the parties to lead further evidence, if they so liked, on the question of their title. Accordingly, the plaintiffs took steps in the trial Court for amending the plaint and for obtaining permission of the Court to sue on behalf of those owners of lands in Kita Nonphar whose lands were irrigated with the water from the tank and were not plaintiffs to the suit. They added two schedules to the plaint; one showing the plots with their areas belonging to them and the other showing the plots belonging to other villagers. The Court allowed the amendment and gave them the necessary permission to sue under Order 1, Rule 8, Code of Civil Procedure. Steps were also taken for notice to the villagers as required under order 1, Rule 8, Code of Civil Procedure.
5. The trial Court again decreed the suit directing the appellants to restore plot No. 366 by making it 3 feet deep so that water may flow towards plot No. 366 and also to restore plot No. 366 to its original position by making the western Alang chest high. It declared that the plaintiffs and other villagers, whom they represented, had right to irrigate their lands from water of the tank in plot No. 366 and the defendants had no right to cultivate that plot and plot No. 367. It also restrained permanently the defendants from changing the condition of these two plots. On appeal, the Subordinate Judge confirmed the decree passed by the trial Court and recorded the following findings:
(i) Though plot No. 366 was recorded as Ghairmazrua Malik, it was in fact a pokhar and a source of irrigation for the tenants since at least the survey record of rights, and that right of the tenants was not lost or discontinued;
(ii) The right exercised by the tenants was not prescriptive, but based on lost grant;
(iii) Though it was not necessary to find out whether there was a settlement in favour of the defendants 1st party, they were not able to prove their alleged settlement and have failed to prove their cultivating possession of the two plots for more than one or two years before the date of the suit; and,
(iv) The permission of the landlord to cut the Alang of the tank, as recorded in the fard-ab-pasi, was only a mode as to the exercise of their right of irrigation by the tenants and it did not affect their right of irrigation itself.
The lower appellate Court also rejected the petition of the appellants for taking certain documents in additional evidence.
6. It appears that plaintiff No. 9, Rambarat Singh, died in the year 1954 when the appeal was pending before the lower appellate Court before the order of remand by this Court. Defendant No. 24, Kazi Ehsan Ahmad, also died on 16-11-1959 when the suit was pending before the trial Court after remand. An application was filed in this Court alleging that no substitution was made in their places and praying for bringing their heirs on the record. A counter affidavit was filed on behalf of the plaintiffs respondents that substitution was made in place of the deceased plaintiff No. 9. At the time of argument it was conceded by learned Counsel for both the parties that on the date Kazi Ehsan Ahmad (defendant No. 24) died, he was left with no interest in the subject matter of the suit as the estate had vested in the State of Bihar and non-substitution of his heirs in his place did not affect the suit in the least, and that it was not necessary to bring his heirs on the record of the appeal. However, it was contended by Mr. Lalnarain Sinha, who appeared for the appellants, that non-substitution of the heirs of Rambarat Singh (plaintiff No. 9) resulted in abatement of the appeal of the plaintiffs before the lower appellate Court before remand as against his heirs and the decree passed by the trial Court on 7th April 1954 cannot be modified, as that will lead to inconsistent decrees. On behalf of the plaintiffs respondents it was argued that as, in fact, substitution was made in place of Rambarat Singh, the appeal before the lower appellate Court before remand by this Hon'ble Court could not and did not abate, and that even if there would have been no such substitution, now the suit being one under Order 1, Rule 8, Code of Civil Procedure, it will not affect the result of the suit or the appeal. Mr. Sinha conceded that in a suit under Order 1, Rule 8, Code of Civil Procedure, non-substitution of the heirs of one of the plaintiffs will not result in the abatement of the suit or the appeal; but he further contended that the suit was not maintainable under Order 1, Rule 8, Code of Civil Procedure, and, therefore, it has to be treated as an ordinary suit. The decree of the lower appellate Court, against which Second Appeal No. 1986 of 1955 was filed, shows that one Kedar Singh was named as an appellant in it as son of Rambarat Singh, deceased. The name of Rambarat Singh is not there in the copy of the decree. From the memorandum of appeal of Second Appeal No. 1986 of 1965, it appears that the present appellants, who were appellants in that appeal as well, made Kedar Singh a respondent to that appeal and described him as son of Rambarat Singh. The plaint shows that Kedar Singh was not a party to the suit. In the circumstances, it can easily be inferred and held that Kedar Singh was substituted in place of Rambarat Singh when the appeal was pending before the lower appellate Court before remand by this Court. Further, it will appear from the discussions hereafter that there is no merit in the contention of Mr. Sinha that the suit was not maintainable under Order 1, Rule 8, Code of Civil Procedure. In that view of the matter, even if there was no substitution in place of Rambarat Singh, that would, not result in abatement of the suit or the appeal.
7. It was contended by Mr. Lalnarain Sinha appearing for the appellants that as the plaintiffs and other villagers whom they purported to represent owned different plots and had distinct rights in respect of them. Though they had similar interest, they cannot be said to possess "the same interest" in the subject matter of the suit as contemplated by Order 1, Rule 8, Code of Civil Procedure. According to him, "the same interest" means identical interest in entirety in the land to be irrigated. In the case of The Duke of Bedford And Ellis 1901 A.C. 1, Lord Macnaghten, with whom majority of their Lordships agreed, while interpreting Rule 9 of Order 16 of the Rules of the Supreme Court, which also contains the expression "the same interest", observed:
Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent.
It would thus appear that the expression "the same interest" in rule S of Order 1 cannot be interpreted to mean identical interest in its entirety, as contended by Mr. Sinha. It means nothing more than common interest. In the case of Sivagurunatha Chettiar v. Ramaswami Iyengar 15 I.C. 399, Abdur Rahim, J. of Madras High Court also held that Order 1, Rule 8 of the Code of Civil Procedure applies not only to cases where concurrent interests are concerned but also where they are similar though distinct. Rule 8 of Order 1 of the Code of Civil Procedure is nothing but a rule of procedure for the convenience of the litigants where the number of persons interested in the subject matter of litigation is numerous, and there will be no justification for putting a stricter interpretation on the expression "the same interest" as not to cover cases of similar but distinct interest of persons having common grievance.
8. The other contention of Mr. Sinha was that the Court of appeal below has erred in holding that in the circumstances of the case, the plaintiffs could have the right on the basis of a lost grant. He submitted that no specific case of lost grant was made out in the plaint, and as the parties to the suit did not proceed on that assumption till the order of remand was passed by this Court, now the plaintiffs cannot be allowed to put forward a case of lost grant. The learned appellate court in its judgment has referred to various paragraphs of the plaint, where a case of user from time immemorial was made out, and according to it, the plaintiffs, therefore, could not be debarred from claiming the right of irrigation on the basis of a lost grant. In support of this view it has relied on a Division Bench decision of this Court in the case of Krishna Chandra Mandal v. Ram Sahay Katari A.I.R. 1917 Pat. 530. In that case, the plaintiffs in the plaint had stated "that the plaintiffs from the time of their ancestors have all along taken water from the said tank as of right peaceably and openly for over 20 years from the places mentioned in the schedule". It was held that on such a pleading, the plaintiffs could be granted a decree on the basis of a lost grant. The view taken by the Court of appeal below is also supported by another Bench decision of this Court in the case of Kartic Manjhi v. Benamali Mukherji 11 P.L.T. 637. We have ourselves verified the plaint of the present suit and the learned Court of appeal below is right in observing that the plaintiffs did make out a case of user from time immemorial in it. It appears, therefore, to be correct in its view that the plaintiffs could be granted a decree on the basis of a lost grant and has rightly distinguished the single Judge decision in the case of Raj Nandan Singh v. Ram Kishun Lohar . In that case, the defendants had made out a definite case of customary right, and not. of a right on the basis of a lost grant, and, therefore, they were not allowed to proceed on the basis that they had a right based on a lost grant. In our opinion, failure on the part of the plaintiffs to make out a definite case of a lost grant in their arguments before the two Courts below, and in this Court before remand, cannot debar them from doing so (subsequently when the pleadings and evidence do make out such a case.
9. The only argument advanced on behalf of the appellants which remains to be considered is that the Courts below were not justified in injuncting them completely from cultivating the land. In this connection it was rightly contended that the plaintiffs in their plaint never challenged the settlement in their favour and, therefore, the Court of appeal below was not justified even in cursorily examining the evidence on the question of settlement and recording a finding that the defendants first party failed to prove the settlement in their favour. The area of plot No. 366 which is a tank is only 6.99 acres, and the land which is to be irrigated in Kita Nonphar is about 19 acres. In the circumstances, there will be no justification for keeping the entire plot No. 366 barren for irrigating only a small area of about 19 acres. It is true that after remand, this point does not appear to have been specifically raised in the two Courts below by the defendants first party, but as there was a specific direction from this Court to examine this question after the remand, and it. is a pure question of law which arises on proved or admitted facts, the appellants are entitled to raise it before this Court. It is well settled that proprietors are entitled to every inch of land in their estate, and they or the settlees from them can use the land in any reasonable manner subject to the established rights of the public or the tenants in such lands. In our opinion, therefore, there is substance in this contention of the learned Counsel for the appellants and the Courts below have erred in injuncting them completely from cultivating plot No. 366, the tank. So far as plot No. 367, which is a Karha is concerned, any cultivation by the appellants is bound to interfere with the flow of water, and thus reasonable exercise of the right of irrigation by the plaintiffs respondents. The injunction, therefore, in respect of plot No. 367 cannot be modified.
10. In the result, the appeal is partly allowed and the order of permanent injunction passed by the Courts below is modified to this extent that the appellants are held entitled to cultivate the tank in plot No. 366, but only in such a manner as not to interfere with the right of the plaintiffs and the villagers whom they represent to take water therefrom for irrigating their lands in Kita Nonphar. But the order of the Courts below to restore plot No. 367 by making it 3 feet deep so that water may flow towards plot No. 366 and also to restore plot No. 366 in its original position by making the western Alang chest high, is confirmed. It is also made clear that if on account of the cultivation by the appellants, this tank becomes incapable of being used as a reservoir, the plaintiff's shall be entitled to get it restored to a condition so that it may be used as a reservoir for the purpose of irrigating their lands and the lands of the villagers whom they represent. The parties shall bear their own costs, so far as this Court is concerned.
Ramratna Singh, J.
11. I agree.