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Bhondoo and ors. Vs. Udatoo - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2741 of 1967
Judge
Reported inAIR1970All307
ActsEasements Act, 1882 - Sections 1; Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 7 - Order 41, Rule 33
AppellantBhondoo and ors.
RespondentUdatoo
Advocates:S.N. Doyal, Adv.
DispositionAppeal dismissed
Excerpt:
.....299: there is an imposing array of authority for the view that in those parts of the country where indian easements act is not in operation, there is no reason why the principles underlying the provisions of the indian act, should not be followed in so far as they embody the rules of equity, justice and good conscience. where the provisions of the act coincide with the equitable principles, the indian easements act will equally serve as a safe guide and as the measure and standard of such principles' i respectfully agree with those observations. now, order 41, rule 33 of the code of civil procedure clearly declares that the appellate court shall have power to pass any decree which ought to have been passed or made as the case may require and this power may be exercised by the court in..........garhwal which merged in 1949 in the united provinces, and urges that there is no law applying the indian easements act, 1882 to that area. he has referred to the provisions of the merged states (laws) act, 1949 to show that the indian easements act, 1882 is not one of the acts mentioned in the schedule to that act reference has also been made to section 3(2) of the u.p. merged states (application of laws) act, 1950 and it is pointed out that in the absence of the notification contemplated by section 3(3) the indian easements act, even if referred to by section 3(2), cannot be said to have been extended to that area.learned counsel for the plaintiff-respondent concedes that the indian easements act does not apply as such to the district of tehri garhwal. but he relies upon the principles.....
Judgment:

B.S. Pathak, J.

1. This is a defendant's appeal arising out of a suit for an injunction.

2. The suit was brought on the allegation that the plaintiff had been taking water to his field through a Gool which passed through two plots belonging to the defendants, that the defendants had demolished a portion of the Gool and thus stopped the water flowing to the plaintiff's fields. The plaintiff prayed for a permanent injunction restraining the defendants from interfering with his taking water to his field through the said Gool.

3. The suit was contested on the ground that no Gool at all passed through the said plots and there was no right in the plaintiff to receive water passing through the defendants' fields.

4. The suit was decreed by the trial Court and a perpetual injunction was granted in the terms prayed for by the plaintiff. The defendants appealed. The learned Civil & Sessions Judge modified the decree of the trial Court in so far that a mandatory injunction was granted directing the defendants to restore the Gool in question to its original condition as marked in the map forming part of the decree.

5. Learned counsel for the defendants-appellants points out that the matter arises in the district of Tehri Garhwal, that the district originally formed the State of Tehri Garhwal which merged in 1949 in the United Provinces, and urges that there is no law applying the Indian Easements Act, 1882 to that area. He has referred to the provisions of the Merged States (Laws) Act, 1949 to show that the Indian Easements Act, 1882 is not one of the Acts mentioned in the schedule to that Act Reference has also been made to Section 3(2) of the U.P. Merged States (Application of Laws) Act, 1950 and it is pointed out that in the absence of the Notification contemplated by Section 3(3) the Indian Easements Act, even if referred to by Section 3(2), cannot be said to have been extended to that area.

Learned counsel for the plaintiff-respondent concedes that the Indian Easements Act does not apply as such to the district of Tehri Garhwal. But he relies upon the principles incorporated in the provisions of that Act. It does appear that in respect of areas where the Indian Easements Act in terms does not apply, the Courts in this country have applied the principles incorporated there. It is not necessary to set out the several decisions of the Courts in that regard. It seems to me sufficient to refer to what was said by Tek Chand, J. in Nunia Mal v. Mahadev, AIR 1962 Punj 299:

'there is an imposing array of authority for the view that in those parts of the country where Indian Easements Act is not in operation, there is no reason why the principles underlying the provisions of the Indian Act, should not be followed in so far as they embody the rules of equity, justice and good conscience. Where the provisions of the Act coincide with the equitable principles, the Indian Easements Act will equally serve as a safe guide and as the measure and standard of such principles'

I respectfully agree with those observations. In the circumstances, I have no hesitation in holding that the courts below were plainly right in recognising a right in the plaintiff-respondent to flow water through the Gool passing through the defendants-appellants' fields for the purpose of irrigating his own fields.

6. The next contention of learned counsel for the defendants-appellants is that the plaintiff-respondent had merely prayed for a prohibitory injunction and the lower appellate Court should not have granted a mandatory Injunction instead. It cannot be disputed that the appellate Court had as wide a jurisdiction as the trial Court in granting relief, and it is now settled law that when disposing of a suit the trial Court has power to mould the relief and to grant such appropriate decree as is called for by the merits of the case. It is pointed out that having regard to the terms of the trial Court decree, it was for the plaintiff-respondent to have appealed and to have claimed a mandatory injunction, and in the absence of such appeal, it is said, the lower appellate Court should not have granted the decree which it did. Now, Order 41, Rule 33 of the Code of Civil Procedure clearly declares that the appellate Court shall have power to pass any decree which ought to have been passed or made as the case may require and this power may be exercised by the Court in favour of all or any of the respondents, although such respondents may not have filed any appeal or objection. It seems to me that what the lower appellate Court did cannot be said to have exceeded the power conferred upon it by Order 41, Rule 33.

7. The last contention of learned counsel for the defendants-appellants is that the terms of the decree made by the lower appellate Court are vague and consequently effect cannot be given to the decree. The lower appellate Court has decreed a mandatory injunction directing the defendants to 'restore the Gool in question to its original condition as marked in the map 7C Ex. I forming part of the decree........'. The map referred to here is the settlement map, as is clear from the observations contained in the judgment of the lower appellate Court. It is, therefore, apparent that in complying with the decree the defendants must proceed according to the position of the Gool as shown in the settlement map. No question of vagueness can then arise.

8. The appeal fails and is dismissed. In the circumstances, there is no order as to costs.


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