R.S.A. No.405 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.405 of 2010(O&M) Date of Decision:12.09.2011 Ram Singh ......Appellant Versus Jasbir Kaur and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Ranjit Saini, Advocate, for the appellant. Mr.K.S.Rekhi, Advocate, for respondent Nos.1 to 4. Mr.Karan Bhardwaj, Advocate, for Ms.Puneet Kaur Sekhon, Advocate, for respondent Nos.5 to 7. **** M EHINDER S INGH S ULLAR , J.(oral) The epitome of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record is that, the civil suit filed by Ram Singh son of Natha Singh-appellant-plaintiff(for brevity “the plaintiff”), for a decree of declaration to the effect that he is owner of Electric Tubewell connection bearing No.R-976 installed in his land, with a consequential relief of permanent injunction, restraining Punjab State Electricity Board, its officers and Harpal Singh son of Ganga Singh(since deceased)(now being represented by his LRs)-respondent-defendants(for short “the defendants”) from disconnecting and shifting it(Electric Tubewell connection) to some other place, except in due course of law, was decreed by the trial Court, by virtue of judgment and decree dated 09.09.2005. 2. Aggrieved by the decision of the trial Court, the LRs of Harpal R.S.A. No.405 of 2010(O&M) 2 Singh-defendant No.4 filed the appeal, which was accepted, the judgment and decree of the trial Court were reversed and the suit filed by the plaintiff was dismissed by the first Appellate Court, by means of impugned judgment and decree dated 01.09.2009. 3. The appellant-plaintiff did not feel satisfied with the impugned judgment and decree of the first Appellate Court and preferred the present regular second appeal. 4. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant appeal in this respect. 5. Ex facie, the argument of the learned counsel that since Harpal Singh-original defendant No.4 has agreed to transfer the indicated Electric Tubewell connection in the name of the plaintiff by way of copy of affidavit, Exhibit P-6, so, the first Appellate Court committed a legal mistake in dismissing his suit, sans merit. 6. What is not disputed here is that the aforesaid Electric Tubewell connection was issued by the Punjab State Electricity Board( hereinafter to be referred as the “defendant-Board”) in the name of Harpal Singh-defendant No.4. The plaintiff claimed that Harpal Singh had agreed to transfer the Electric Tubewell connection in his(plaintiff) name by way of copy of affidavit(Exhibit P-6). Once, it is proved that the Electric Tubewell connection in question was in the name of defendant No.4, then it cannot be transferred in favour of the plaintiff, without previous consent in writing of the defendant-Board. Nor any consumer part with or create any partial or separate interest in Electric Tubewell connection, in any manner, as per Clause 39.1 of the conditions of the defendant-Board. According to condition No.39.3, the consumer may at any time with the previous consent of the Board, transfer the connection as its liabilities to any other person R.S.A. No.405 of 2010(O&M) 3 approved by the Board. However, the transferee shall execute a new agreement and will deposit the ACD and the security for the meter at the prevalent rates after accounting for the ACD and security for meter already deposited by the predecessor consumer. 7. As indicated earlier, the plaintiff is claiming the ownership of Electric Tubewell connection on the basis of copy of affidavit, Exhibit P-6. Since, the original affidavit has not seen the door of the court, so, no implicit reliance can be placed on its photostat copy(Exhibit P-6) in this relevant connection. 8. Sequelly, the mere possession of the electricity bills and receipts ipso facto is not a ground to confer any right of the Electric Tubewell connection on the plaintiff, unless all the terms & conditions of transfer of the Electric Tubewell connection of the defendant-Board are complied with, which are totally lacking in the present case, as discussed hereinabove. 9. Therefore, to me, the first Appellate Court, having scanned the entire evidence on record and the terms & conditions of transfer of the Electric Tubewell connection, in the right perspective, has rightly negatived the claim of the plaintiff, through the medium of impugned judgment and decree dated 01.09.2009, the operative part of which is as under:- “In my view, the very foundation of the case of Ram Singh respondent/plaintiff was weak. He brought this suit for declaration on the strength of affidavit dated 20.3.1995, photo-stat copy of which is Ex.P6. The affidavit is not helpful to plaintiff Ram Singh. On merits, the contents are different from the testimony of its attesting witness PW4 Baldev Singh. There is no mention of any payment made by Ram Singh to Harpal Singh. In copy of affidavit Ex.P6, whereas, attesting witness Baldev Singh has deposed that Ram Singh paid Rs.7,000/- to Harpal Singh for transfer of the connection. PW4 Baldev Singh made the contradictory statement. In the cross-examination against the contents of his examination-in-chief recorded in affidavit Ex.PW4/A. Affidavit Ex.PW4/A of Baldev Singh shows that original affidavit of Ex.P6 was typed, signed and attested on 20.3.1995 and R.S.A. No.405 of 2010(O&M) 4 it was read over by the Typist at Khem Karan to Harpal Singh and admitting the contents, Harpal Singh thumb marked the same. On the contrary, in the cross-examination reveals that the affidavit was brought to PW4 Baldev Singh after it was typed and thumb marked by Harpal Singh. PW4 categorically stated that Harpal Singh did not thumb mark the affidavit in his presence. The present suit for declaration was instituted by plaintiff Ram Singh after five years of the affidavit in dispute. Report of Local Commissioner Ex.P4 also raises serious doubts regarding the land in which the disputed tubewell connection is running. Tubewell connection of Harpal Singh in khasra No.138//4/1 is linked with the disputed connection No.R-976 more than with the tubewell connection of plaintiff Ram Singh in khasra No.215//3/1 as per report of Local Commissioner. Keeping in view the factual position discussed above, the ld.lower Court was not justified in granting declaration to the plaintiff regarding ownership of tubewell connection No.R-976 in favour of respondent-plaintiff Ram Singh mainly on the basis of adverse inference drawn against the defendant for non- production of the disputed record. Plaintiff Ram Singh neither sought permission from the ld.lower Court to produce the secondary evidence of affidavit dated 20.3.1995 nor brought any suit for mandatory injunction for transferring the electricity connection in his favour as per procedure. In absence of such claim, grant of declaration that Ram Singh was owner of the disputed tubewell connection No.R-976 is not sustainable. I arrive at a conclusion that Ram Singh plaintiff did not follow the procedure for transfer of the tubewell connection as envisaged in condition No.39.1 and 39.3 as per Conditions of Supply as framed by P.S.E.B., Patiala in the year 1999 reproduced in the foregoing para of this judgment. In the absence of such procedure, grant of declaration that Ram Singh was owner of the disputed tubewell connection was not justified. It is, therefore, held that the impugned judgment suffers from illegality and perversity and is not sustainable. The appeal is accepted and the impugned judgment is set aside and as a result of which, civil suit filed by plaintiff Ram Singh stands dismissed with no order as to costs.” 10. Learned counsel for the appellant-plaintiff did not point out any material, much less cogent, to contend that how and in what manner, any interference is warranted in the impugned judgment and decree of the first R.S.A. No.405 of 2010(O&M) 5 Appellate Court. 11. No other meaningful argument has been raised by the learned counsel for the appellant, to assail the findings of the first Appellate Court. All the remaining contentions, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiff, have already been duly considered and dealt with by the first Appellate Court, in this relevant context. 12. Meaning thereby, the first Appellate Court has recorded the cogent grounds in this regard. Such judgment, containing the valid reasons, cannot possibly be interfered with by this Court, while exercising the powers conferred under Section 100 CPC, unless and until, the same is illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of the well-articulated decision arrived at by the first Appellate Court in this relevant behalf. 13. Neither any question of law, much less substantial, is involved in this regular second appeal, nor any other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 14. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. September 12, 2011 (MEHINDER SINGH SULLAR) seema JUDGE