Per Shri Chaturvedi and Kakar —This reference to Larger Bench of the Board has been made by a Division Bench vide their order dated the 7th of November, 1966.

The facts, in brief, which led to this reference are that the plaintiff respondents Rampal s/o Khairati Gujar and others filed a suit on the 21st of November, 1953, for declaration of their two-third right in a well No. 76 and for a permanent injunction against the appellant-defendant not to take water from it exceeding one-third share. The suit was decreed by the trial court on the 21st of December 1954. The appellant-defendant pleaded that he had half share in the well as a co-owner and was, therefore, entitled to take one-half of water from the well. On an appeal filed in the court of the Additional Commissioner, Ajmer, the case was remanded on the 28th of July, 1955 ordering amendment of the plaint. According to the amended plaint, so put in the trial court, the plaintiff-respondents had also prayed for issue of a permanent injunction against the appellant. This suit was rejected by the trial court on the 14th of November, 1957. An appeal was filed in the Court of the Additional Commissioner, Ajmer, who accepting the appeal set aside the order of the trial court dated, the 14th of November, 1957, and ordered declaration that in well No, 76 the respondent were entitled to get 2(lav of water and the appellant l(lav). He also ordered issue of temporary injunction accordingly. Aggrieved by this order the appellant Rampal filed a second appeal in the Board of Revenue. The appeal was put before a Division Bench and the jurisdiction of the Revenue Court was challenged by the appellant on the ground that no relief for determining the share for drawing of water can be obtained in revenue Courts. The Division Bench which heard this point examined the matter and they thought that a suit in respect of determination of share of water would lie in a revenue court, as well would be covered within the definition of holding; but as there were two cases decided by the two Division Benches of this Board in which contrary views had been taken, they referred the following question for determination by the Larger Bench :

"Whether a well if it has been given a separate khasra number and is distinct from a tenants holding would be covered within the definition of a holding under sec. 5(17) of the Rajasthan Tenancy Act, 1966, as in this case, and therefore whether a suit for declaration and permanent injunction in respect of rights in it would be triable in a Revenue Court."

Before the arguments were heard the counsel for both the parties urged that in order to give a wider scope to the reference the word and in the phrase and is distinct from a tenants holding should be substituted by or so that the reference may be read as under :

"Whether a well if it has been given a separate khasra number or is distinct from a tenants holding would be covered within the definition of a holding under sec. 5(17) of the Rajasthan Tenancy Act, 1955, as in this case, and therefore, Whether a suit for declaration and permanent injunction in respect of rights in it would be triable in the Revenue Court."

This amendment in the reference was, therefore, allowed.

The learned counsel for the appellant, Shri C.B. Sharma, argued that this well has a separate khasra number and is commonly owned. Suits for rights in wells are triable in civil courts and not in revenue courts, as irrigated fields are separately owned. He relied on two rulings of the Board of Revenue 1963 R.R.D. 275 (Hiralal versus Sri Narayan) and 1964 R. R. D. 130 (Ram Pratap versus Bherun Singh) in support of his Contention.

The learned counsel for the respondents, Shri P. D. Kudal relied on R. R. D. 1955 page 25 ( Onkar vs. Girdhari ), according to which the right to irrigate land from others well is not to be governed by Indian Easements Act alone, as well is an improvement under all the Tenancy, laws and accordingly item No. 11(B) of Group D of the First

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