P.N. Goel, J.
1. This is a defendants' appeal against the judgment and decree dated 17-1-1969 passed by the District Judge, Fatehpur in Civil Appeal No. 62 of 1967.
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 year 1319 F, that the well belonged to their ancestor Badla, that Pairhi ABCD belonged to them and that they were irrigating treir 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 Bishambhar, 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 pairhi.
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. 4 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-appellants had demolished the pairhi and Nali in dispute, that the suit was within limitation and that it was not barred by Section 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 Section 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 elects to proceed with the suit, he shall apply for an order discharging the next friend and for leave to proceed in his own name; where such an application is made the title of the suit is corrected as laid down in Sub-rule (3) of this rule. Then Sub-rule (4) provides that where the minor elects to abandon the suit, he shall, if a sole plaintiff, apply for an order to dismiss the suit.
11. It is evident that this rule is made for the benefit of the minor who attains majority during the pendency of the suit. This rule does not envisage a position where a minor does not move an application under Sub-rule (1) or Sub-rule (4). In the present case there is nothing on record to indicate that Santosh Kumar elected to abandon the suit. It will be noticed that Santosh Kumar was not the sole plaintiff in the case. His elder brother Suresh was also a plaintiff in the suit. The interest of Suresh and Santosh Kumar are common. Therefore if Santosh Kumar did not make an application saying that he would proceed with the suit, it does not mean that the suit could not proceed at all, because the suit could be proceeded with by his elder brother Suresh. It will further be noticed that it is a case of alleged trespass by the appellants, Therefore, Suresh alone could have maintained the suit even if Santosh Kumar was not impleaded as a party. The lower appellate court has pointed out that Santosh Kumar moved an application in the appeal before the lower appellate court that he had attained majority and this fact be noted on record. In this connection it is worthwhile to mention that in the memorandum of appeal Santosh Kumar, who was array ed as respondent was indicated as major. There is nothing on record to indicate that Santosh Kumar abandoned the suit or in any way repudiated the proceedings, of the suit before the trial court.
12. In the above circumstances, the omission of Santosh Kumar to have moved an application under Order XXXII, Rule 12 (1) has not placed the appellants in any position of advantage nor it has made the suit brought by his guardian and his elder brother in any way defective. Therefore this contention of the appellants' counsel is without substance.
13. The next contention of the appellants' counsel is that as the well in suit was not allotted to any tenure-holder, it should be presumed that the well vested in Gaon Sabha and therefore Gaon Sabha should be made a party. This contention does not seem to be correct for the reason that there is not a single document on record to show that the Gaon Sabha became the tenure-holder of Khata No. 113 to which the well in dispute appertained in consolidation proceedings. The only inference which can be drawn from the khatauni is that all the wells mentioned in the Khatauni were kept out of consolidation. It means that the plots in which the wells are situate were not amalgamated to or included in the chaks allotted to the tenure-holders. But this does not mean that the well would vest in Gaon Sabha. Therefore, there is hardly any need to implead Gaon Sabha in this case. There is another reason for this view. It is this that in this case the respondents complained against act of trespass of the appellants. If the respondents have a right to irrigate from the well in question, they can be granted relief as against the appellants irrespective of the fact whether Gaon Sabha is a party or not.
14. The next contention of the appellants' counsel is based on Section 30 (b) of the Consolidation of Holdings Act. Title of this section is 'Consequences which shall ensue on exchange or possession.' The section then says that with effect from the date on which a tenure-holder enters or is deemed to have entered into possession of the chak allotted to him in accordance with the provisions of this Act, the following conquences shall ensue:--
(b) The tenure-holder entering into possession or deemed to have entered into possession, shall have in his chak the same rights, title, interests and liabilities as he had in the original holdings togegether with such other benefits of irrigation from a private source, till such source exists, as the former tenure-holder of the plots comprising the chak had in regard to them,
15. The main stress of the learned counsel for the appellants is on the words 'private source'. He contends that as the well in plot No. 113, i.e. the disputed well was not allotted to any of the parties, the respondents could not claim benefit of irrigation from this well. Section 30 lies in Chap. IV relating to enforcement of the scheme of consolidation. Simply stated, the scheme of Consolidation Act is that the area of plots of tenure-holders at different places is consolidated at one place and these consolidated areas, called chaks, are allotted to various tenure-holders. After the chaks have been allotted, the chak holders are delivered possession. After the delivery of possession of the chaks, the consequences mentioned in Section 30 follow.
16. In the present case the chaks of the parties were carved out and in all probability they came into possession of their chaks. But the well in dispute or the plot in which the disputed well lies was not allotted to any of the parties. It would not be wrong to say that this well or the plot in which the disputed well lies was not allotted to any tenure-holder. Its necessary consequence is that Section 30 as a whole does not apply to the present case.
17. The learned counsel for the appellants referred to the cases of Fattan v. Balli, 1963 Rev Dec 325 and Ram Chander v. Dharam Prasad, 1972 Rev Dec 167. In both these cases the well was allotted to the chak of the defendant. Therefore, both these cases are not applicable to the present case.
18. The appellants' counsel then referred to the case of Rameshwar v. Uma Shanker, 1978 Rev Dec 195. In this case there was dispute of irrigation from a tank. The plaintiff came with the allegation that he used to irrigate from the tank in suit. During consolidation proceedings the tank was allotted to the defendants. In this case also the tank was not kept out of consolidation. There was a further finding in this case that the plaintiff had his own private source of irrigation. In view of two facts-- (1) the plaintiff did not allege that he was the owner of the tank and (2) the plaintiff had another source of irrigation, it was held that the courts below were not justified in granting relief of injunction. This case is also not applicable to the facts of the present case.
19. In this connection it has to be remarked that the Khasra and Khatauni of the year 1319 F clearly indicated that the well belonged to the respondents' ancestor Badla. Ordinarily heirs of Badla would be the owners of the well. The respondents clearly alleged in the plaint that they were owners of the well.
20. It was pointed out that because the well was not allotted to the respondents in consolidation proceedings so the trial court held that the respondents were not the owners of the well. This inference is not correct in law. Once a party is shown to be owner of a well, his ownership cannot be divested unless there is a transfer or there is some statutory provision. In the present case, as mentioned above, not only this well but 6 other wells of other plots were kept out of consolidation. This fact alone is not sufficient to extinguish the rights of the plaintiff-respondents in the well.
21. It was pointed out that the plaintiffs-respondents did not file cross-objection against this finding of the trial court before the lower appellate court. Order 41, Rule 22 lays down that any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided by the court below, but take any cross-objection to the decree which he could have taken by way of appeal. In the present case the trial court decreed the respondents' suit for the reliefs claimed by them. Therefore, there was no occasion for the respondents to have filed an appeal or a cross-objection. Without doing so, they could urge before the lower appellate court that they were owners of the well and had a right to irrigate their fields from it. Unfortunately this point was not raised before the lower appellate court. The present appellants raised only 3 points before the lower appellate court which were decided against them. The lower appellate court then touched the respondents' right to irrigate. The lower appellate court clearly found that the respondents had satisfactorily proved that they had a right to irrigate their fields. The appeal filed by the appellants was dismissed by the lower appellate court. Therefore, the respondents again got no occasion to file an appeal or a cross-objection. The legal position as to the ownership of the well is too clear and which has been indicated just above.
22. As the well belonged to the respondents' ancestor in the settlement, it continued to belong to them. Khatauni prepared in the consolidation proceedings keeping the wells apart from consolidation does not take away ownership of the respondents.
23. From what has been discussed above, the appellants do not get any advantage from the provisions of Section 30 (b) of the Consolidation of Holdings Act.
24. The appellants' counsel lastly pointed out that plots 154 and 155 which belonged to some other persons were allotted to the respondents in consolidation proceedings, that there was nothing to show that these two plots were used to be irrigated from the well in suit and as such the respondents were not entitled to claim relief in respect of these two plots. This contention is no doubt borne out by para 5 of the plaint; but it has been indicated above that the disputed well was of the respondents' ancestor and as such continued to belong to them. If the respondents wish to irrigate these plots allotted to them in consolidation from the well which belongs to them the appellants cannot come in the way.
25. The result of what has been said above is that no interference can be made by this Court in the decree passed by the courts below.
26. The appeal is accordingly dismissed with costs to respondents Nos. 1 and 2.