Harjitendra Singh vs State of Rajasthan

Rajesh Balia, J.—In this second appeal, plaintiff has challenged the judgment and decree passed by District Judge Shriganganagar dt. 10.4.1992 who dismissed the suit for permanent injunction by reversing the judgment and decree passed by Munsif and Judicial Magistrate First Class Sri Ganganagar dt. 5.10.1987

Plaintiff-appellant Larjitonadrajeet Singh filed a suit alleging that a Khatedar tenancy existed in favour of the plaintiff''s grandfather Darbara Singh. Plaintiffs father died during the lifetime of Darbarasing and after the death of Darbarasingh he became Khatedar of land in dispute. The land in dispute is a garden for which additional water supply was sanctioned by the Irrigation Department since 1947. According to the plaintiff''s allegation, about 2 1/2 years before filing the suit, respondent disconnected the supply of water to the plaintiffs garden. Principal ground on which the restoration of supply of water to the garden by grant of permanent injunction, was claimed was that the order of closure of water supply was passed without notice to the plaintiff. The defendants in their written statement claimed that notices Ex. 17 were issued to the plaintiff in the year 1976 before passing the order. Thereafter when the plaintiff did not appear inspite of service, water of supply was closed vide order Ex. 18 in 1976. Defendants also pleaded that the suit was barred by time in as much as the order of closing the water supply was passed in 1976 and the suit has been filed in 1982.

The trial court found that notice was issued in the name of Darbarasingh and order was also passed in the name of Darbarasingh who had died long before Ex. 17 and Ex. 18 were issued. Both the notices as well as order being against a dead person were nullity notwithstanding the fact that they were served on plaintiff. The Court noticed that Ex. 18, the order passed in pursuance of Ex. 17, does not bear date of its making, nor does it show the date on which it was served on the plaintiff. There is no other evidence except the statement of plaintiff to show as to when water supply was actually stopped. According to plaintiff, water supply was stopped about 2 1/2 years before filing the suit. The trial court also came to the conclusion that since orders were passed against a dead person the cause of action of filing a suit arose when the water supply was actually stopped and since the only evidence available on record was that the water supply was stopped within 3 years before filing of the suit, the suit was held to be within time. On these findings suit of the plaintiff was decreed by the trial court in the following terms.

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On appeal, lower appellate court reversed both he findings, it held that because notices were served on the plaintiff, the fact that they were issued in the name of dead person is of little importance. also came to the conclusion that plaintiff has failed to prove that water supply was stopped within three years of filing the suit. Hence the suit was barred by time. On these findings decree passed by the trial court was reversed and suit of the plaintiff was dismissed. Hence this second appeal.

Heard learned Counsel for the parties.

Having carefully considered contention raised before me and the judgment under appeal, in my opinion appeal deserved to be allowed.

From the notice Ex. 17 and Ex. 18, certified copies of which are made available to me by learned Counsel for the appellant, it is apparent that notices were issued to Darbarasingh who was a dead person. yet the appellate court has come to the conclusion that from Ex. 17 it appears that notices have not been given to Darbarasingh by relying on the note appended to the notice. In fact from note appended to Ex. 17 it is clear that the respondents knew that Darbarasingh is no more Khatedar of land in question. Yet notice was issued in the name of Darbarasingh. From the note it also appears that respondents knew that who is the new Khatedar and that he resides at Chandigarh. The defendants, who wanted to take away the valuable rights of the plaintiff regarding supply of water to land in dispute, decided for inexplicable reason not to issue the notice in the name of new Khatedar at the address known to them and rest contended with issue of notice in the name of person who to their knowledge was not Khatedar. Thus lower appellate court has clearly misread Ex. 17. Moreover it hardly needs an argument that notice in the name of dead person is nullity and proceedings founded thereon also cannot be sustained merely because the notices was served on the grand son of the dead person who presently claims to be the Khatedar tenant of land in question. Likewise the trial court while deciding the issue no. 5 has categorically found that Ex. 18, which is said to be an order for closure of water supply to plaintiff''s land does not bear any date of its passing nor does it bear any date when it was served on the plaintiff. No evidence was produced by the defendants to show when water supply was actually stopped in pursuance of the order Ex. 18. The unrebutted evidence about closure of water supply remains to be plaintiff''s statement that it was slopped, about 2 1/2 years before filing of the suit. The lower appellate court has also not come to the conclusion that these findings are wrong. Yet it has come to the conclusion that from Ex. 18 it is proved that the water supply was stopped in 1976. Without the date on which Ex. 18 was passed, without a date on which it was served on the plaintiff, without other documentary evidence and without alluding to oral evidence led by defendants, if any, it is not explicable that on what basis finding by the trial court was reversed by the lower appellate court. If the statement of plaintiff remains unrebutted about the date on which the water supply was actually stopped, in my opinion, lower appellate court could not have in law levelled the finding of the trial court that water supply was disconnected within three years of filing of the suit. If that is accepted there is no dispute, the suit must be held within time.

It has also been urged by the learned Counsel that even on. merit the order Ex. 18 is invalid in as much as if water supply to the plaintiff''s land were to be disconnected on the ground that the garden for which water Supply was sanctioned, was not properly maintained, it was incumbent upon the defendants to have first given an opportunity to the plaintiff for restoring proper maintenance of garden before taking recourse to stopping supply of water to the plaintiff''s land in dispute. Afore said contention of learned Counsel for the appellant appears to be correct.

In view of the aforesaid discussion the appeal is allowed. Judgment and decree passed by Addl. District Judge No. 1 Shriganganagar Camp Karanpur dt. 10.4.1992 is set aside and the judgment & decree passed by the Munsif and Judicial Magistrate First Class, Shri karanpur dt. 5.10.1987 is restored.

There will be no order as to cost of this appeal.

Before parting of the case it may be observed that the order passed in this case will not effect the jurisdiction of respondents to take action against the plaintiff in accordance of law.