R. S. A. No. 4397 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4397 of 2010 (O&M) Date of Decision : May 05, 2011 Pehlad Singh .... Appellant Vs. Parbhati and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Bhupinder Singh Bairagi, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 13223-C of 2010 : Allowed as prayed for. Main Appeal : Pehlad Singh – plaintiff having lost in both the courts below has filed the instant second appeal. Appellant-plaintiff filed suit against Parbhati, his wife, a son and two daughters i.e. five defendants. However, defendant no.5 Chander Kala (daughter of Parbhati) was given up. Defendant no.3 Ajit Singh (son of Parbhati) was also given up as he has since died. The suit proceeded R. S. A. No. 4397 of 2010 (O&M) 2 against defendants no.1, 2 and 4, who are respondents no.1 to 3 herein. Plaintiff's case is that there was water connection pipe leading from street to his house and a drain for passage of filthy water leading from his house to the street. The defendants, whose house adjoins the said water pipe and drain, threatened to block the same. Plaintiff sought permanent injunction restraining the defendants from doing so. It was then alleged that during pendency of the suit, defendants disconnected the water connection and also blocked the drain. Mandatory injunction for restoring the same was also claimed. Defendants, in their written statement, denied the existence of the disputed water connection pipe and the drain. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Hisar, vide judgment and decree dated 26.11.2008, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Fast Track Court, Hisar, vide judgment and decree dated 23.03.2010. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. There is only sole statement of plaintiff regarding existence of alleged water connection pipe and drain. The said statement is not R. S. A. No. 4397 of 2010 (O&M) 3 sufficient to prove existence thereof. On the contrary, there is statement of Parbhati – defendant no.1 himself and also statement of Hoshiyar Singh (DW-1) in support of defendants' version. The defendants have also examined Om Parkash (DW-3) – Fitter in Public Health Department. He has deposed that defendants never removed any water pipe line nor had broken any drain etc. Plaintiff's self-serving oral statement is fully rebutted by the evidence of the defendants. It is thus not proved that any water connection pipe or drain of the plaintiff existed or that the same were removed/broken or blocked by the defendants. Consequently, it is manifest that the plaintiff has been rightly non-suited by the courts below. In addition to the aforesaid, it may be noticed that the plaintiff did not examine any official from Public Health Department to depict that the plaintiff had obtained any water supply connection from the said Department or that water pipe line for the same was in existence at the disputed site. Consequently, adverse presumption arises against the plaintiff. It would also not be out of place to notice that the plaintiff sought mandatory injunction directing the Public Health Department to re-connect the water connection pipe to the plaintiff's house, but Public Health Department or State Government was not even impleaded as party and obviously, no such direction could be given in the absence of the Department or State being party to the suit. R. S. A. No. 4397 of 2010 (O&M) 4 For the reasons aforesaid, I find no merit in the instant second appeal. Plaintiff has been rightly non-suited by the courts below. Concurrent finding recorded by both the courts below against the plaintiff does not warrant interference in the instant second appeal as the said finding is not depicted to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. May 05, 2011 ( L. N. MITTAL ) monika JUDGE