Kuldip Singh, J.
1. This appeal has been directed against the judgment, decree dated 21.11.1995 passed by learned Additional District Judge (1), Dharamshala Camp at Una, in Civil Appeal No. 39/92, RBT No. 206/94 affirming judgment, decree dated 29.2.1992 passed by learned Sub-Judge 1st Class (1), Una in case No. 84 of 1987.
2. The facts, in brief, are that Faquir Chand, original plaintiff, filed a suit against Daulat Ram, Sukh Dev, Ram Sarup and Smt. Vidya Devi for permanent prohibitory injunction restraining them from removing the pump set or interfering in any manner in the right of the plaintiff to irrigate his land measuring 25 kanals 16 marlas from well and pump set situated in land measuring 8 marlas bearing Khasra No. 114R/29 vide Jamabandi 1981-82 village Basal, Tehsil and District Una. Faquir Chand, original plaintiff, has died and his legal representatives have been brought on record.
3. The case of the original plaintiff was that he was tenant with possession on 25 kanals 16 marlas land comprised in Khasra Nos. 114R/19/4, 21/2, 22/1, 115R/1/2, 2, 3, 8/1, 9/1 and 26 situated in village Basal, Tehsil and District Una vide Jamabandi 1981-82. On coming into force of the H.P. Tenancy and Land Reforms Act, 1972 (for short 'the Act') he had become owner of this land. This land was given to him vide registered lease deed dated 23.8.1968. The whole of this land is irrigated from well and pump set situated on Khasra No. 114R/29 vide Jamabandi 1981-82 village Basal, Tehsil and District Una. The plaintiff was given right to irrigate aforesaid 25 kanals 16 marlas land vide agreement dated 23.8.1968 from well and pump set situated on Khasra No. 114R/29. The plaintiff pleaded his right to irrigate the land from the well under the Act and the defendants have no right to interfere in such right of the plaintiff. The defendants have threatened that they would not allow the plaintiff to use the well for irrigation and, therefore, plaintiff filed the suit.
4. The suit was contested and a common written statement was filed by original defendants. It was submitted that plaintiff was lessee for fixed term and after the expiry of the lease the plaintiff ceased to have any interest in the suit property. The defendants were within their right to refuse the plaintiff to use the well. The plaintiff filed replication to the written statement. The learned trial Court after noticing Rule 36 of the H.P Tenancy and Land Reforms Rules, decreed the suit on 29.2.1992. Ram Sarup defendant No. 3 assailed the judgment, decree dated 29.2.1992 by way of appeal which was also dismissed by learned Additional District Judge on 21.11.1995. Ram Sarup has come up in second appeal against judgment, decree dated 21.11.1995. The appeal has been admitted on following substantial questions of law:
(i) Whether the learned Courts below mis-appreciated the provisions of law applicable, pleadings of the parties and the evidence adduced by them in the case in hand correctly and thus the findings as arrived at stand vitiated?
(ii) Whether suit for permanent injunction is maintainable against the true owner?
(iii) Whether the person held to be owner in possession of the property can be restrained from using the same as per his desire?
5. I have heard Mr. Ajay Sharma, learned Counsel for the appellant and Mr. Naresh Kumar Thakur, learned Counsel for the respondents and gone through the record. Mr. Sharma has submitted that two Courts below have erred in relying Rule 36 of the H.P. Tenancy and Land Reforms Rules, 1975 in decreeing the suit. He has submitted that it was the case of the plaintiff that he had become owner of the suit land under the Act. The Rule 36 applies to a tenant and not to an owner. The Rule 36 prohibits landowner to curtail right of tenant but does not create right in favour of tenant. He has further submitted that right, if any, to use the well for irrigation was given by virtue of agreement dated 23.8.1968 which has come to an end by virtue of statutory force on coming into force of the Act. The plaintiff became owner of the land which was given to him under the lease. The suit has not been filed for enforcing the terms of the agreement, which had otherwise come to an end, but has been filed independent of the agreement. The Courts below have not properly appreciated Rule 36 and, therefore, both, the Courts below have erred in decreeing the suit. Mr. Thakur, on the contrary, has submitted that the plaintiff was enjoying the facility of irrigation for irrigating the tenancy land and by virtue of Rule 36 the facility of irrigation of tenancy land cannot be curtailed and the two Courts below have rightly come to the conclusion that under Rule 36 the plaintiff continued to have the facility of irrigation from the well of the defendants. He has supported the impugned judgment, decree.
SUBSTANTIAL QUESTIONS OF LAW NO. (i) to (iii):
6. Since all the substantial questions of law are inter-connected, therefore, they are taken up for disposal collectively. In order to properly appreciate the controversy between the parties. Rule 36 is reproduced hereinbelow:
36. Tenant's right to water.-Save in proportion to a reduction in the tenancy, if any, a landowner shall not be competent to curtail or terminate the supply of canal, Kuhl or use of well water enjoyed by a tenant immediately before the commencement of this Act, and a breach of this provision shall constitute a cognizable offence punishable with fine which may extend to one hundred rupees shall be triable by a Nyaya Panchayat competent to hear criminal cases.
The perusal of Rule 36 would show that the land owner shall not be competent to curtail or terminate the supply of canal, Kuhl or use of well water enjoyed by a tenant immediately before the commencement of the Act. The Rule 36 nowhere protects the facility of irrigation to an owner who was earlier tenant. The proprietary rights on a tenant under the Act are conferred automatically on the commencement of the Act as has been held in Daulat Ram etc. v. The State of Himachal Pradesh etc. 1978 ILR (Himachal Series) 742 and Shri Bishambhar Nath v. Shri Hari Chand and Ors. 1993 (3) SLJ 2906. The tenant under the Act on commencement of Act becomes an owner automatically except in those cases where in certain situation the tenant is not entitled to acquire ownership. In order to invoke Rule 36 the tenant will have to prove tenancy and his right to irrigation under the terms of tenancy. The perusal of the plaint would show that the plaintiff has referred agreement dated 23.8.1968 and its terms only as a fact to show how he came in possession of the land in question. It is not the case of the plaintiff that after conferment of proprietary rights the agreement dated 23.8.1968 continued so far plaintiff's right to irrigation from the well in question is concerned. The specific case of the plaintiff is that under the Act plaintiff has right to irrigate the land from the well. It is admitted case of the parties that the well is not on the tenancy land. The well is situated on different land owned by the defendants. The proprietary rights of the tenancy land are conferred under Section 104 of the Act. The Section 104 of the Act nowhere provides that on the conferment of proprietary rights tenant will be entitled to all other connected rights on the land of which he has been conferred proprietary rights. The Rule 36 does not create the right rather it protects the right. In order to invoke Rule 36 to have the facility of irrigation the plaintiff will have to prove his right of irrigation on the tenancy land. The Rule 36 is not applicable to ownership land. Once the plaintiff has become owner of the tenancy land he will have to show his right to irrigate the land from the well of defendants situated on different parcel of land. In the present case, it is not the case of the plaintiff that plaintiff has right to irrigate suit land of which he has become owner under some agreement. In these circumstances, the substantial questions of law No. (i) to (iii) are decided in favour of the appellant and against the respondents and, therefore, impugned judgment, decree are liable to be set aside. The Courts below have not properly appreciated Rule 36 which is applicable to tenancy land and not to the ownership land owned by an owner.
7. The result of the above discussion, the appeal is allowed. Judgment and decree dated 21.11.1995 passed by learned Additional District Judge (1), Dharamshala Camp at Una, in Civil Appeal No. 39/92, RBT No. 206/94 are set aside and suit is dismissed with no order as to costs.