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Sunder Lal and anr. Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 661 of 1969
Judge
Reported inAIR1980All203
ActsNorthern India Canal and Drainage Act, 1873 - Sections 31 and 32
AppellantSunder Lal and anr.
RespondentState of U.P. and ors.
Appellant AdvocateK.D. Pandey and ;R.C. Verma, Advs.
Respondent AdvocateStanding Counsel
DispositionAppeal allowed
Excerpt:
civil - right of irrigation - sections 31 and 32 of northern india canal and drainage act, 1873 and para 309 clause 4 of manual of orders of u. p. irrigation department - irrigation of plot of plaintiff for four fasals - plots not included in scheme of outlet no.10 - no contract in writing between parties to acquire right over canal water - right cannot be acquired by user - some provisions of act applicable - right of irrigation conferred by clause 4 of para 309 of the manual. - - the lower appellate court gave a finding that the subsequent papers filed by the state were not reliable and the court below was of the opinion that the plots of the plaintiffs were being irrigated from the outlet no......that no area shall be excluded for the reasons given in the items above, if it has been irrigated by the outlet in at least 3 fasals during five years immediately proceeding.' 3. the court below in spite of the rule, relied upon clause (f) of section 32 of the northern india canal and drainage act which provides that 'no right can be acquired by user.' section 32 of the northern india canal and drainage act applies to contracts which are to be entered into between the state and the cultivator and the contracts were to be framed in accordance with that section. the court below, however, though it noted yet completely ignored section 31 of the act which reads as under: 'in the absence of a written contract or so far as any such contract does not extend, every supply of canal.....
Judgment:

K.M. Dayal, J.

1. The present second appeal had been filed by the plaintiffs for permanent injunction and restraining the defendants from excluding their Chak from the scheme Osrabandi of outlet No. 10 of the Canal in dispute. The trial Court found that the plots of the plaintiff were not included in the Scheme of the outlet No. 10 concerned and dismissed the suit. The lower Appellate Court gave a finding that the subsequent papers filed by the State were not reliable and the Court below was of the opinion that the plots of the plaintiffs were being irrigated from the outlet No. 10. It also gave a finding that the plaintiff had irrigated his plot for four Fasals from Rabi 1971 and onwards.

2. The learned counsel for the appellant relied upon Clause 4 of the Para 309 of the Manual of Orders of the Irrigation Department. It is quoted in the order of the lower Appellate Court. It is as follows:

'Provided that no area shall be excluded for the reasons given in the items above, if it has been irrigated by the outlet in at least 3 Fasals during five years immediately proceeding.'

3. The Court below in spite of the rule, relied upon Clause (f) of Section 32 of the Northern India Canal and Drainage Act which provides that 'no right can be acquired by user.' Section 32 of the Northern India Canal and Drainage Act applies to contracts which are to be entered into between the State and the cultivator and the contracts were to be framed in accordance with that Section. The Court below, however, though it noted yet completely ignored Section 31 of the Act which reads as under:

'In the absence of a written contract or so far as any such contract does not extend, every supply of canal water shall be deemed to be given at the rates and subject to the conditions prescribed by the rules to be made by the State Government in respect thereof.'

4. It is not disputed before me that the Manual of Orders of Irrigation Department in U. P. has been framed by the State Government in pursuance of the Act aforesaid. It is found by the Court below that there is no contract in writing between the parties. Obviously Section 31 will apply and Section 32 is not applicable to the instant case. The plaintiff, in the circumstances, had a right under Clause 4 of Para 309 of the Rules quoted above to get his Chak irrigated from the outlet No. 10 in dispute.

5. In the circumstances, the appeal is allowed. The judgment and decree passed by both the Courts below are set aside and the suit of the plaintiffs is decreed with costs throughout.


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