RSA No. 3113 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 3113 of 2011 (O&M) Date of decision : 1.8.2011 ... Daya Nand and another ................Appellants vs. Raghbir Singh and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. R.S. Longia, Advocate for the appellants. ... K.C. Puri, J. This is an appeal directed by the defendant-appellants against the judgment dated 8.4.2011 passed by Mrs. Manisha Batra, Additional District Judge, Kurukshetra, vide which the appeal preferred by the defendant-appellants against the judgment and decree dated 6.12.2008 passed by Ms. Renu Rana, Civil Judge (Junior Division), Kurukshetra, was dismissed. Briefly stated, Raghbir Singh adopted son of Smt. Dakhan wd/o Asa Ram filed a suit for permanent injunction and mandatory injunction. It is alleged that plaintiff Raghbir Singh alongwith his sons Sukhdev Singh and Sukhvinder Singh is owner in possession of land measuring 8 Kanals comprised in Khewat No. 10 min, Khatoni RSA No. 3113 of 2011 -2- 40 min, Rect No. 3 Killa No. 23(8-0), situated within the revenue estate of village Bapdi, Tehsil Thanesar, District Kurukshetra vide jamabandi for the year 1999-2000. In 1972 he got installed a tube- well in the western corner of Khasra No. 23. About one month before filing of the case, bore had become out of order due to low level of the water. He informed the defendants, who asked him to dig a new bore within the said killa number. Therefore, he dug out the bore in the eastern corner of said Khasra number. However, on 28.6.2006, defendants came and removed the cable due to which he has suffered great loss and could not plant his paddy crop. Cable was removed in the presence of Chhatarpal, though he is paying the electricity bills regularly. He repeatedly requested defendants to return his cable but they were adamant and refused. Hence the present suit. Defendants No. 1 to 3 objected the suit of the plaintiff on the ground of locus standi, concealment of true and material facts, maintainability, cause of action and suit being bad for non-joinder of necessary parties. It is further submitted that there are two tube well connections in the name of plaintiff. After the death of his father Duli Chand, tube well connection No. BRA-379 was given to Daya Nand and Om Parkash and tube-well connection No. BRA-257 came to the share of plaintiff in family settlement. Thus, tube-well connection No. BRA-379 is in possession of Daya Nand and Om Parkash. However, as it stands in the name of plaintiff, therefore, he wants to install another tube-well with the same number BRA-379 in the eastern corner of Killa No. 23. He was running it illegally. The same was detected during the inspection. Brothers of plaintiff have filed a RSA No. 3113 of 2011 -3- complaint alongwith an affidavit not to shift or disconnect connection No. BRA-379. Tube-well bearing number BRA 379 is still running on the western corner of Killa No.23. Defendants No. 4 and 5 also raised similar preliminary objections besides concealment of material facts and jurisdiction. They have also pleaded that there are two tube-well connections bearing No. BRA-257 and BRA-379 in the name of plaintiff being Karta of the family. During the life time of father of plaintiff and defendants, family settlement took place wherein tube-well connection No. BRA-379 was given to them and tube-well connection No. BRA-257 was given to the plaintiff. From the pleadings of the parties, following issues were framed:- i) Whether the plaintiff is entitled to permanent injunction and mandatory injunction as prayed for? OPP ii)Whether defendants are in possession of tube-well No. BRA 379. If so, its effect? OPD iii)Whether plaintiff has no locus standi to file and maintain the present suit? OPP iv)Whether the suit is not maintainable? OPD v) Whether the plaintiff has no cause of action to file and maintain the present suit? OPD vi)Whether the suit is bad for want of non-joinder of necessary parties? OPD vii)Whether plaintiff is estopped by his own act and conduct to file the present suit? OPD RSA No. 3113 of 2011 -4- viii)Whether this Court has no jurisdiction to try and entertain the present suit? OPD ix)Relief. Plaintiff examined himself as PW-1 and closed the evidence after tendering certain documents. In rebuttal, Om Parkash appeared as DW-1, Jagdish Chand appeared as DW-2 and Sahab Singh, LDC appeared as DW-3. Learned trial Court, after appraisal of the evidence, returned the finding on all the issues in favour of the plaintiff and consequently, decreed the suit of the plaintiff and a decree for permanent injunction was passed in favour of the plaintiff against defendants, restraining defendants from interfering in the smooth running of tube-well No. BRA-379. However, prayer for mandatory injunction was declined. Feeling dissatisfied with the above said judgment, Daya Nand and Om Parkash – contesting defendants filed an appeal. The said appeal was dismissed vide judgment dated 8.4.2011 passed by Mrs. Manisha Batra, Additional District Judge, Kurukshetra. Feeling dissatisfied with the judgment and decree dated 8.4.2011 passed by Mrs.Manisha Batra, Additional District Judge, Kurukshetra and judgment and decree dated 6.12.2008 passed by Ms. Renu Rana,Civil Judge (Junior Division), Kurukshetra, the defendant- appellants have preferred the present regular second appeal. The appellants in paragraph No. 9 of the grounds of appeal have mentioned that following substantial questions of law have arisen in the present appeal:- RSA No. 3113 of 2011 -5- a) Whether a settlement only with regard to use of two tube- wells installed on a large chunk of land is required to satisfy all the tests of a family settlement? b) Whether such a settlement has always to be proved by documentary evidence or can also be a matter of presumption on the facts and circumstances of the case? c) Whether the suit of the plaintiff was not liable to be dismissed on account of concealment of facts and attempting to mislead the court on the part of the plaintiff? d) whether the impugned judgments and decree are not vitiated on account of relying upon inadmissible documents in evidence having directly affected the decision of the case? Learned counsel for the appellants has submitted that there were two electric connections and out of which one was being used by the plaintiff bearing No. BRA-257. The connection in question bearing No. BRA-379 was being used by the defendant-appellants from the very beginning. No doubt originally the connection was installed in Killa No. 23, but later on it was shifted to Killa No. 22 owned by the appellants. Both the Courts below have not taken into account the documentary evidence in this regard. I have carefully considered the submission made by counsel for the appellants and have also gone through the record of the case. Regular Second Appeal can be entertained only if any substantial question of law has arisen. In the present case, both the Courts below after appraisal of the evidence, came to the conclusion that plaintiff is the owner of the electric connection No. BRA-379 and RSA No. 3113 of 2011 -6- the same is installed in his land and there was no family settlement regarding the said connection to the defendant-appellants. So that being a finding of fact, cannot be interfered in the Regular Second Appeal. There is nothing on the file to show that any evidence has not been discussed by the trial Court or there is misreading or misinterpretation of the evidence. There is nothing on the file that plaintiff is guilty of concealment of any material facts. There is nothing on the file that judgment and decree of both the Courts below are vitiated on account of relying upon inadmissible evidence have direct affect on the decision of the case. So, no question of law, much less the substantial question of law has arisen in the present appeal. Consequently, the appeal is without any merit and the same stands dismissed. A copy of the judgment be sent to the trial Court for strict compliance. ( K.C. Puri ) 1.8.2011 Judge chugh