Mehar Singh vs Prem Singh

J.V. Gupta, J.

This is plaintiffs'' second appeal. Their suit for permanent injunction was decreed by the trial Court, but was dismissed in appeal.

The plaintiffsappellants filed the suit for permanent injunction restraining the defendant from obstructing them from taking the water to their fields from the tubewell of Jagat Singh through the watercourse AB as shown in the site plan Exhibit P.5. The right to carry the water through the said Khal was claimed inter alia on the ground of easement by way of necessity as well as by way of prescription. The suit was contested by the defendant on the ground that the Khal in dispute does not exist at the site and the plaintiffs have not acquired the right of easement either by way of necessity or by prescription. On trial it was found by the learned Sub Judge that no easement of necessity has been proved. However, it was found that the plaintiffs are entitled to the relief of permanent injunction as they have acquired the right of easement or by prescription. It was specifically found that the plaintiffs have shown that they enjoyed the use of this water course for the last more than 20 years peacefully as of right and without any interruption. As a result of this finding the plaintiffs'' suit for permanent injunction was decreed. In appeal the learned Senior SubJudge with enhanced appellate powers reversed the said finding of the trial Court on the ground that no specific plea for acquisition of right of easement by prescription was taken in the plaint and secondly it has not been proved that they have been using this Khal for carrying the tubewell water for more than 20 years. Consequently the plaintiffs'' suit was dismissed. Dissatisfied with the same, the plaintiffs have filed this second appeal in this Court.

The learned counsel for the appellants contended that in the replication filed on behalf of the plaintiffs it was specifically stated in para 4 thereof that the Khal in issue continues to be in existence for the last more than 50 years and the Khewatdars/Cosharers have been using the same peacefully without interruption. This argued the learned counsel, the approach of the lower Appellate Court was wrong and the finding arrived at is vitiated. It was also contended that the plaintiffs claimed the right to carry the water through the Khal in dispute, whether the water is taken from the well or from the tubewell was thus immaterial for the purposes of the suit.

After hearing the learned counsel for the parties and going through the relevant evidence on the record, I find force in the contention raised on behalf of the appellants. There was a specific issue framed as to whether the plaintiffs were entitled to the relief of injunction as prayed for. Under this issue the trial Court found that the plaintiffs were entitled to the relief because they have acquired this right of easement by prescription. Admittedly in the replication filed on behalf of the plaintiffs, it was specifically pleaded in para 4 thereof. Thus it could not be said that the plaintiffs did not take this plea in the trial Court. Replication is also a part of the pleadings and before the evidence was led by the parties, the defendant knew the case set up by the plaintiffs in their replication read with their plaint.

Moreover, the plaintiffs claimed the right of easement to carry the water through the Khal in dispute. It was immaterial whether the water from the well or from the tubewell was taken through the said Khal. Of course, according to the plaintiffs, at present it is the water of the tubewell which is being carried through the said Khal. But there is nothing on the record to show that because of this there was any change or alteration made by the plaintiffs in the Khal in dispute which exists there for the last more than 20 years. In the absence of any such evidence it could not be held that the plaintiffs were not entitled to use the said Khal for carrying the tubewell water. However, it may be made clear that in case the plaintiffs make any change or alteration in the Khal in dispute because of the use of the tubewell water, the defendant will be entitled to seek his remedy in accordance with law. Consequently, the appeal succeeds and the judgment and decree of the lower Appellate Court are set aside and that of the trial Court decreeing the plaintiffs'' suit is restored. However, there will be no order as to costs.