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GANGA DAS versus ATUL SINGH

High Court of Judicature at Allahabad

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Ganga Das v. Atul Singh - SECOND APPEAL No. 357 of 1975 [2007] RD-AH 12799 (25 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgment Reserved on 10.7.2007

Second Appeal No. 357 of 1975

Ganga Dass and others.....................................Plaintiffs/appellants

Vs.

Atal Singh and others..............................Defendants/ Respondents

(District-Meerut)

Hon. Pankaj Mithal,J.

Heard Sri V.K. Goel, learned counsel for the appellant and perused the record. No one turns up for the respondents despite list being revised.

The only question of law posed in this appeal is whether the plaintiffs who are admittedly the joint owners of the well can be restrained or restricted from irrigating their fields through the said well?

The relevant facts in short are that that the plaintiffs (four in numbers) filed Original Suit No. 185 of 1968 for permanent injunction restraining the defendants (nine in numbers) from interfering in their right to irrigate their plot No. 1249 area 15 Biswa and 1295 area 1 Bigha 3 Biswa (renumbered as plot No. 398 in the consolidation operations) from the well situate on plot No. 919 described at the foot of the plaint. The suit was decreed in part. The lower Appellate Court held that the plaintiffs have only 1/8th share in the well and  no share in the persian wheel. Therefore the defendants were restrained from interfering with the plaintiffs right to irrigate their above fields from the said well but the plaintiffs were only permitted to draw water from the well only once in a week as their share in the well was 1/8th. The plaintiffs were not held entitled to use the Persian wheel installed on the well to draw the water and were given liberty to make their own arrangement for the purpose. Not satisfied the plaintiffs preferred Civil Appeal No. 190 of 1973. In appeal before the lower Appellate Court the decree passed by the Court of first instance was modified and restriction for drawing water once in a week was lifted for irrigating their above fields. Despite the above, plaintiffs have preferred the second appeal.

Sri V.K. Goel, learned counsel for the appellant has made two submissions. First, the Courts below have erred in holding that the plaintiffs have only 1/8th share in the well in dispute. Actually, the plaintiffs have 1/4th share in the well. Secondly, as the plaintiffs are co-owners, their right to draw water from the said well is unlimited and cannot be restricted in any manner i.e., for drawing water for limited period or for irrigating only limited land/fields.

I have perused the record.

The findings of the lower court that the plaintiffs have only 1/8th share in the well suffers from no infirmity. The lower court has rightly recorded that Pratap and Jhandu were the original owners of the well. They have transferred only 1/4th share in the well in favour Dharma. The rights of  Dharma in the well devolved upon his two sons Navnidhi and Chandar in equal proportion i.e., to the extent of 1/8th each. Navnidhi gifted his above right to his grandson Suraj Pal. Plaintiffs have purchased the said rights from Sural Pal vide sale deed dated 13.11.1967 (Exhibit-5). According to this sale deed he had sold his entire property along with right of irrigation to the plaintiffs as Suraj Pal had acquired only 1/8th right in the well. Therefore, the plaintiffs could not acquire anything more than the share of Suraj Pal. In view of the above reasoning given by the lower court the Appellate Court has confirmed the finding with regard to share of the plaintiffs to be 1/8th in the well. I find no error of law or any perversity in the said finding. The said finding as such requires no interference in the second appeal.

As regard to second submission of the plaintiffs that they are co-owners and as such have unrestricted and unlimited right to  draw water from the well to irrigate all their fields including those they have acquired or likely to acquire subsequently over and above fields purchased by them by the sale deed dated 13.11.1967 executed by Suraj Pal, the above argument although attractive is totally misconceived. A perusal of the plaint establishes that the plaintiffs in the relief clause has claimed permanent injunction restraining the defendants from interfering in their right to irrigation of plot No. 1249 area 15 Biswa and plot No. 1295 area 1 Bigha and 3 Biswa which was renumbered as plot No. 398 in consolidation operations from the well in dispute. Therefore, the plaintiffs themselves have claimed right to irrigate only the above two fields and not more. Thus they are not entitle to any relief beyond the relief as claimed above. The Appellate Court while allowing the appeal has modified the decree of the lower Appellate Court  by lifting the restriction imposed upon the plaintiffs to draw water from the said well only once a week for the purposes of irrigating their plot Nos. 1249 and 1295. Therefore, the desired relief as was prayed for by the plaintiffs in the suit was granted to them. The plaintiffs as such are not the persons aggrieved or adversely affected by the decree passed by the lower Appellate Court. They have not claimed any right of irrigation from the said well in respect of other fields except plot Nos. 1249 and 1295. The above view of mine finds support from the decision of the Supreme Court AIR 2003 SC 1989 Ravindra Narain Vs. Union of India wherein it has been laid that unless a person is prejudicial or adversely affected by a decree he is not entitle to file an appeal.

Learned counsel for the appellant has placed reliance upon para 10 reported in AIR 1984 SC 1789 Ayyaswami Gounder and others Vs. Munnuswamy Gounder and others wherein the Supreme Court on the basis of admitted co-ownership of right to use common land and common water channel held that it includes unrestricted user rights. The said case law is not applicable to the facts and circumstances of the case inasmuch as no unrestricted and unlimited right to irrigate fields have been claimed by the plaintiffs in the suit except to restrain the defendants from interfering in their right to irrigate their plot Nos. 1249 and 1295. The Courts below have granted relief to the plaintiffs in respect of the above plots. Therefore the plaintiffs are not entitle to any further relief.

Water is a natural resource though it is in abundance but still scarce. No one has any plenary right to continue drawing water from a well continuously and indefinitely. If such a use is permitted the well will soon dry. A well as such can only be used for irrigating limited land. Therefore also the plaintiffs cannot be permitted to use the well in dispute for irrigating their other fields other than plot Nos. 1249 and 1295 which appeared to have been purchased by them from Suraj Pal vide sale deed dated 13.4.1967 along with right to use this well for the purposes of irrigation. Therefore, The above submission is devoid of merit.

For the reasons stated above, the appeal lacks merit and fails. It is accordingly dismissed.

SKS

25.7.2007


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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