JUDGMENT :- This is a defendants appeal against the judgement and decree dated 17-1-1969 passed by the District Judge, Fatehpur in Civil Appeal No. 62 of 1979.

2. The suit was brought by two brothers. Suresh, aged about 28 years and Santosh Kumar, aged about 17 years for permanent injunction restraining the defendants-appellants and Ram Bhajan, defendant respondent No. 3, from interfering in irrigating their fields 156, 157, 158, 154 and 155 through water channel MN and NL shown in the sketch map attached to the plaint. They further claimed Rs. 50/-as damages for the demolition of pairhi ABCD to the south of the well. They alleged that the well and pairhi existed in plot 113 carved out in consolidation proceedings which corresponded to plot No. 319 of the settlement of the settlement of the well belonged to their ancestor Badla, that Pairhi ABCD belonged to them and that they were irrigating their fields since a long time.

3. Ram Bhajan, defendant respondent admitted all the allegations of the plaint.

4. Defendants-appellants contested the suit on the grounds that the well did not belong to the plaintiff-respondents, that the disputed well really belonged to their ancestors, that it was constructed by Bishasmbhar, Badri and Jiya Lal, that it was not constructed by Badla, that the plaintiff-respondents were never in possession of the well, that they had never demolished the water channel or the pairha.

5. There is on record Khasra of 1319F Ext. 6. It shows a well in plot No. 319. Its old No. was 323. This plot pertained to Mohal Tori Singh. There is Khatauni of this settlement, Ex. 12. relating to Thok Tori Singh. In this document the name of Badla is clearly written in column No. 3 along with some other persons. In column No. 1 old plot No. 323 is written. In column No. 5 well is mentioned.

6. It is undisputed that the present number after consolidation of plot No. 319 is 113. In consolidation proceedings the well was not allotted to any tenure-holder. The consolidation authorities made a separate khata No. 103 in respect of 7 wells situate in different plots. The well in plot No. 113 is mentioned in it.

7. The Munsif, Fatehpur, who tried the suit, held that neither of the parties was owner of the well, that the plaintiffs were owners of the pairhi, that they had a right to irrigate their fields from the well in dispute, that the defendants-appellant had demolished the pairhi and Nali in dispute, that the suit was within limitation and that it was not barred by S.49 of the Consolidation of Holdings Act. On these findings the trial court decreed the respondents suit for permanent injunction. Instead of allowing damages to the respondents, the trial court directed the appellants to construct the Pairhi and the water channel.

8. The appellants filed appeal before the District Judge. Three points were urged before him -

(1) Santosh Kumar, respondent No. 2 attained majority during the pendency of the suit before the trial court. He did not elect to proceed with the suit.

(2) The trial court did not frame a specific issue on the question of possession over the disputed well and therefore the case be remanded, and

(3) The plaintiffs respondents claim of irrigating their fields was barred by S.49 of the U.P. Consolidation of Holdings Act.

9. The learned District Judge decided all these points against the appellants. Then he dealt with the merits of the case and held that by oral and documentary evidence the respondents had proved that they had a right to irrigate their fields from the disputed well. The appeal was consequently dismissed.

10. Learned counsel for the appellants firstly contended that Santosh Kumar, respondent No. 2, had become major during the pendency of the suit before the trial court and he did not elect to prosecute the suit as required by Order XXXII, Rule 12, C.P.C. This rule lays down that a minor plaintiff shall, on attaining majority, elect whether he will proceed with the suit. Then this rule lays down that where he elec

Click Here to Read the rest of this document