9911796707
TMI Blog1960 (3) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s claim was dismissed by the trial court. On appeal before the Additional District Judge the appellant succeeded and both the injunctions claimed by him were ordered to be issued. The respondents then moved the High Court of Madhya Pradesh by second appeal which was allowed and the appellant's claim dismissed with costs throughout. It is against this decree that the appellant has come in this Court by special leave. 2. In (sic) plaint the appellant alleged that until the abolition of proprietary rights under the M. P. Act 1 of 1951 he was a protected Thekedar of village Kongiya Kala for about 40 years. He held and was in possession of 20 pieces of Malik Mukbuza lands and II Raiyati lands which were specified in paragraph 2 of the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;Panbharan, The plaint specially alleged that the course through which the water flows from Khasra No. 2 until it reaches Khasra No. 254 had been shown in the map in the red dotted line. According to the plaint the appellant had been enjoying the natural right to have the water of his field Khasra No. 2 flow off into the field of respondent 1, Khasra No. 123, and through it to the appellant's other fields uninterrupted for more than 40 years but the same had been obstructed in June 1954, It Is this obstruction which gave the appellant a cause of action for the present suit. 3. This claim was denied by the respondents. In regard to the appellant's allegation that the course through which water flows had been shown in red dotted line ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on pleaded by the appellant had been established. In dealing with the principal question about the acquisition of the right of easement the appellate court observed that the learned trial judge was patently in error in assuming that Panbharan had been constructed in 1953 A, D In fact evidence showed that it had been constructed in Samvat 1953 and this mistake had clearly vitiated the whole of the reasoning of the learned trial judge. It appears from the judgment of the appellate court that this position was conceded by the respondent's learned counsel. The appellate court also examined the question as to whether Khasra No. 137 is a Bharri or Bandhiya and on that question he made a finding in favour of the appellant after considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assumed that the red dotted line on which the appellant relied was alleged by him in substance to be an artificial channel. It is on this footing that the appellant's claim to have acquired a right by 40 years user was considered in both the courts. It was this claim which was disputed by the respondents and on which both the parties led evidence. Therefore, in our opinion, it was not open to the High Court to read the plaint and that too in a very technical manner and to hold that the courts below had completely misjudged the character of the appellant's claim. Since the parties had proceeded to trill on the definite understanding that the channel through which the water flowed right up from the start up to the end was alleged to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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