Single-judge bench dismissed S.B. Civil Second Appeal where appellant challenged the dismissal of a suit seeking mandatory injunction for irrigation facilities. Court held no substantial question of law arose as findings were not perverse.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
: J U D G M E N T :
S.B. CIVIL SECOND APPEAL NO.13/2013
Panni Devi
vs.
State of Rajasthan & Ors.
Date of Judgment
:: 01st May, 2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Kailash Khatri, for the appellant.
BY THE COURT:
This second appeal under Section 100 CPC is directed against judgment and decree dated 21.09.2012 passed by Additional District Judge (Fast Track), Anoopgarh H.Q. Suratgarh, whereby, judgment and decree dated 18.09.2008 passed by Civil Judge (Junior Division), Suratgarh, District Sri Ganganagar has been upheld.
The facts in brief may be noticed thus: the appellant filed a suit for mandatory injunction with the averments that she was owner of 25 Bigha of land situated at Chak 12 SHPD “A”, Tehsil Suratgarh, Stone No. 83/361, Killa Nos. 1 to 25; the Irrigation Department had made available irrigation facilities, for which, there was a temporary Khala, from which, the plaintiff's land was being irrigated; a Naka at Killa No. 1 of Stone No. 83/361 was granted; it was alleged that the defendants while making the Khala as permanent were required to ensure the existing irrigation facilities; however, when during the course of such construction, they wanted to divide the land of the plaintiff, the plaintiff approached the Civil Court and whereafter the
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defendants started having ill-feeling towards her; the plaintiff questioned the construction of the permanent Khala, which resulted in the plaintiff getting water sufficient for irrigation of 8 Bigha of land, whereas, earlier she used to irrigate 19 Bigha of land, which has resulted in irreparable injury to her; the procedure under the Irrigation and Drainage Act was not followed, whereby, she was not given any notice; notice was sent to the respondents, to which, a reply was received, wherein, her prayer was rejected and, therefore, relief was sought seeking removal of the fall constructed at Stone No. 84/360 and construct the same at land of Stone No. 84/361 and direction to continue to provide irrigation facilities to the fields of plaintiff.
A written statement was filed by the defendants, wherein, the averments made in the plaint were denied; it was denied that the irrigation facilities provided have resulted in the plaintiff not able to irrigate her fields; the procedure adopted for the purpose of construction was indicated and it was also stated that the construction has already been taken place and payment has already been made to the contractor and, therefore, to demolish the permanent Khala and reconstruct the same would not be possible and it would result in huge loss to the State Government; objections about jurisdiction of Civil Court was also raised.
The trial court framed four issues; on behalf of the plaintiff statements of plaintiff herself and PW-2 Poonam Chand were recorded; on behalf of the defendants statements of two witnesses were recorded.
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After hearing the parties, the trial court came to the conclusion that the Court did not find it appropriate to interfere in the technical matter having been undertaken by the Department; the plaintiff has failed to clarify that the construction of fall was technically incorrect and after complaint made by her, the same was re-examined by the Department and the same was found to be proper; there was no cause to entertain the suit, though technical issues can best be dealt with by the technical experts, but it cannot be said that the Civil Court had no jurisdiction and ultimately dismissed the suit filed by the plaintiff.
Feeling aggrieved, an appeal was filed by the appellant.
The first appellate court after hearing the parties upheld the finding recorded by the trial court on coming to the conclusion that the plaintiff had failed to point out that on account of the construction of permanent Khala she has anyway been deprived of the irrigation facilities and, consequently, dismissed the appeal.
Having gone through the judgments of both the courts below and having heard learned counsel for the appellant, admittedly, the construction of permanent Khala and the fall was over in the year 2004-05 and the payment in this regard had already been made by the Department to the contractor in October, 2005 and ever since status as it then existed is continued; both the courts below have concurrently found that by the construction of permanent Khala and fall it cannot be said that the appellant has been deprived of the irrigation facilities; learned counsel for the appellant failed to point out any
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perversity in the said finding.
In that view of the matter, no substantial question of law arises for consideration in the present appeal and the same is, therefore, dismissed. The stay application is also dismissed.
No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-
2 issues framed by the court
Whether substantial question of law arises as to the deprivation of irrigation facilities due to construction of permanent Khala.
Whether the High Court can interfere with the technical findings of the lower courts regarding the construction by the Irrigation Department.
2 provisions across 1 enactments
Panni Devi
State of Rajasthan
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
