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Bishunath Shukul Vs. Ganesh Datt Shukul - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All310(1); 29Ind.Cas.1002
AppellantBishunath Shukul
RespondentGanesh Datt Shukul
Excerpt:
easement - water channel blocked--power of court to direct opening of another passage without demolition of construction. - - so that i must take the court below to find that the right of easement had been enjoyed within two years prior to the institution of the suit......is a very reasonable veiw to take of the case. the appellant, however, contends that the right of easement claimed by the plaintiffs had not been used for more than two years before the institution of the suit and that their right had thus become extinct. it was alleged in the plaint that the obstructions made by the defendant which blocked the passage of water were made in asarh and kartick 1319, that is in 1912. both the courts below have found that the constructions are new. the defendant himself did not assert that they were more than two years old. so that i must take the court below to find that the right of easement had been enjoyed within two years prior to the institution of the suit. the appeal fails and is dismissed with costs.
Judgment:

1. This and the connected Appeal No. 620 of 1914 arise out of two suits brought one by Ganesh Datt Shukul and the other by Jadunandan Shukul for establishment of the right of each of them to carry water into their fields by means of a channel which runs through the defendant's field No. 32/1. The field of Ganesh is No. 31 and that of Jadunandan is No. 32/2. It was alleged that the plaintiffs had a right to irrigate their fields with water flowing through the channel and that the defendant had blocked this passage by building a wall. The defence was that the fields of the two plaintiffs were irrigated with water flowing through the fields Nos. 40 and 41, and 29 and 38. This has been found against the defendant and the Court below has held that as a matter of fact the fields of the two plaintiffs were irrigated with water flowing through the channel which existed in the defendant's field No. 32/1. This is a finding of fact and must be accepted in second appeal. The learned Judge, instead of directing the house built by the defendant to be demolished or that the channel should flow through the house, has directed that from the point Or noted on the map the defendant should open a passage for the flow of water through his field to enable the plaintiffs to irrigate their fields. This, it seems to me, is a very reasonable veiw to take of the case. The appellant, however, contends that the right of easement claimed by the plaintiffs had not been used for more than two years before the institution of the suit and that their right had thus become extinct. It was alleged in the plaint that the obstructions made by the defendant which blocked the passage of water were made in Asarh and Kartick 1319, that is in 1912. Both the Courts below have found that the constructions are new. The defendant himself did not assert that they were more than two years old. So that I must take the Court below to find that the right of easement had been enjoyed within two years prior to the institution of the suit. The appeal fails and is dismissed with costs.


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