IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2776 of 1988 Date of decision: 30th November, 2010 Tek Singh … Appellant Versus Shamsher Singh … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Vishal Ranjan, Advocate for the appellant. None for the respondent. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Shamsher Singh respondent-plaintiff filed a suit for permanent injunction and prayed that the defendants be restrained from interrupting the flow of water of hand-pump from the house of respondent-plaintiff towards the pond. It was stated that right of the respondent-plaintiff to enjoy easement, by prescription and necessity, was being interrupted. The appellant-defendant caused appearance and filed written statement, wherein it was stated that no outlet or drain was existing at the spot, which used to run to the pond and the outlet from where the water was passing, was owned and possessed by him. It was pleaded that a bathroom and latrine were constructed along with the hand-pump, therefore, the plaintiff- respondent has no right of easement. After completion of pleadings, the trial Court formulated the following issues: “1. Whether there exists any passage of water in the disputed property ? OPP Regular Second Appeal No.2776 of 1988 2. Whether the plaintiff has acquired right of easement of necessity to pass water through disputed site? OPP 3. Whether the plaintiff has acquired right by way of prescription to pass water through the disputed khal? OPP 4. Whether the plaintiff is entitled to the injunction prayed for? OPP 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the defendant is entitled to special costs u/s 35-A C.P.C. If so how much? OPD 7. Whether the suit is not maintainable to the present form? OPD. 8. Relief.” The trial Court held that according to the testimony of PW-1 respondent-plaintiff, the hand-pump was installed one/six months prior to the formation of Pakistan and the water goes towards the pond and the flow of water was being stopped by the appellant-defendant. It further noticed the fact that the drain in between the point ‘E’ and ‘F’ was closed only for a period of last six days. However, the trial Court held that mere running of the hand-pump for last 30 years alone is not sufficient to prove the allegation in the plaint and had dismissed the suit. The lower appellate Court, considering the fact that the hand- pump was installed about 30 years ago, i.e. one/six months before formation of Pakistan, decreed the suit by observing as under: “9. Suit of the plaintiff is for injunction that defendant be restrained from obstructing him to use the portion E to F as shown in the site plan Exhibit P-1 for flowing this water to the pond from the hand pump. It has come on the record that the said passage has been stopped for the last two months and the water on the hand pump of the plaintiff is standing. It has been recently held by our own Hon’ble High Court in case Kishan and others vs. Mukandi and another, 1987 PLJ page 173 that:- 2 Regular Second Appeal No.2776 of 1988 ‘It is the duty of the Court to mould relief according to found facts and not to enter into techanilities.’ Because of the above said observation it is therefore, held that the suit in the present form is maintainable. This issue is decided as such against the defendant.” Counsel for the appellant is not aware of the ground realities. The suit was filed in the year 1985. A period of about 25 years has elapsed. With the water-supply coming, the hand-pumps may not be existing. However, besides this passing observation, this Court is of the opinion that no fault can be found with the finding of fact returned by the lower appellate Court. Neither any substantial question of law has been formulated nor arises for consideration of this Court. Hence, no interference is warranted in the present appeal and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE November 30, 2010 rps 3