Rattan Singh vs Tarsem Lal

Rajan Gupta, J.

Civil Misc. No. 901-C of 2011

This is an application for condonation of 14 days delay in refiling the appeal. For the reasons stated in the application, same is allowed. Delay of 14 days in refiling the appeal is condoned.

RSA No. 324 of 2011

Present appeal has been preferred by defendant-appellant impugning the judgments passed by the courts below.

Learned counsel for the appellant has argued that a substantial question of law is involved in the second appeal as courts below have granted mandatory injunction without framing of any issue in this regard. Besides, they have completely misread the evidence.

I have heard learned counsel for the appellant.

Brief factual background of the case is that plaintiff filed a suit claiming that he was owner in possession of the suit land. There was a common pucca drain marked ''AB'' as shown in the site plan in existence for 60 years for irrigation purposes. Defendant thus could not demolish or block said drain, it being only source of irrigation for land belonging to plaintiff. Defendant resisted the suit and denied existence of any water drain. He claimed that plaintiff was irrigating the fields through a rubber pipe and has suppressed the material facts. He was thus not entitled to the relief claim for. Trial court after appreciating the evidence came to the conclusion that there was merit in the plea of the plaintiff and thus decreed the suit granting mandatory injunction as prayed for and gave liberty to plaintiff to construct pucca drain in the land of the defendant. The decree was unsuccessfully challenged by the defendant before the lower appellate court. Hence this appeal.

It appears that land in question was purchased by the plaintiff vide two sale-deeds dated 24.09.1990 and 30.01.1989. He was using the water drain for irrigation purposes from own tube-well. During the course of proceedings the court also appointed a local commissioner who reported that there was a proper water channel constructed in the area. Some bricks were, however, lying in the land of Rattan Singh (appellant). On the basis of evidence courts below came to the conclusion that water course was in existence on the spot when suit was filed and plaintiff had been using the same for irrigating his land. No evidence was brought on record to show that land in question had been partitioned. I find no ground to interfere with the concurrent findings of two courts below. The evidence on record has been correctly appreciated. No other question of law has been urged requiring interference in second appeal. Same is hereby dismissed.