R.S.A. No. 2429 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 2429 of 2010 (O&M) Date of decision : 23.7.2010 ... Ajit Singh ................Appellant vs. Narinder Pal Singh and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. S.S. Siao, Advocate for the appellant Sh. Vikas Bahl, Advocate for respondents No. 1 and 2. Sh. S.K. Gupta, Advocate for respondents No. 3 to 7. ... K.C. Puri, J. This is an appeal directed by one of the defendants – Ajit Singh, against the judgment dated 29.4.2010 passed by Sh. Nirbhow Singh Gill, Additional District Judge, Saheed Bhagat Singh Nagar, vide which the appeal preferred by defendant-appellant against the judgment dated 31.8.2009, passed by Sh. Vijay Kumar, Additional Civil Judge (Senior Division), Balachaur (Nawanshahr), was dismissed. Briefly stated, Narinder pal Singh and Surinder Pal Singh – R.S.A. No. 2429 of 2010 -2- plaintiffs filed a suit for mandatory injunction directing defendants No. 1 to 5 to disconnect electric connection released in favour of defendant No.6, illegally and arbitrarily and for release of connection in favour of the plaintiffs being the legal heirs of Chain Singh s/o Kartar Singh, r/o village Mehandpur, Tehsil Balachaur, District Nawanshahr. The case of the plaintiffs as set forth in the plaint is that they are the real nephews of Chain Singh s/o Julla r/o village Mehandpur, Tehsil Balachaur, District Nawanshahr. Said Chain Singh executed registred Will dated 16.4.1998 in favour of the plaintiffs qua his entire movable and immovable property. Chain Singh died on 9.7.1998. After the death of Chain Singh mutation No. 2824 qua inheritance of Chain Singh was entered in favour of the plaintiffs on the basis of the said Will. It is further stated that thereafter an agreement qua partition was entered into after the death of Chain Singh between plaintiffs and brothers of Chain Singh including Ajit Singh – defendant/appellant. Ajit Singh misrepresented himself as heir of Chain Singh and got the demand notice dated 10.4.2001 issued in the name of Chain Singh and thereafter, the Punjab State Electricity Board released the electric connection in the month of June 2005 in favour of Ajit Singh. Legal notice dated 23.8.2005 was served but in vain. Defendants No. 1 to 5 appeared and filed written statement, taking preliminary objections that suit is not maintainable. Legal objections of no cause of action, estoppel, etc. were taken. It was further stated that defendants No. 1 to 5 have no knowledge of Will R.S.A. No. 2429 of 2010 -3- dated 16.4.1998 and mutation of inheritance of Chain Singh in favour of plaintiffs. However, it is admitted that 5 HP motor for Tubewell was applied by Chain Singh. Since the Board authorities have no knowledge about legal heirs of Chain Singh and as such, the connection was released in favour of Ajit Singh – defendant No.6 Defendant No.6 filed separate written statement, taking preliminary objections that suit is not maintainable in the present form, plaintiffs have not approached the Court with clean hands, plaintiffs are estopped from filing the present suit by their act and conduct. Plaintiffs have no cause of action and no locus standi to file the present suit. The Will has no concern with the electric connection released in the name of defendant No.6 in the month of June, 2005. It was further stated that Ajit Singh has not made any misrepresentation to be heir of Chain Singh, nor prepared any forged or fabricated document. The connection has been released in accordance with law. However, it is admitted that Chain Singh died on 9.7.1998. He was co-sharer with defendant No.6 alongwith others in the joint land in village Mehandpur. After issuance of demand notice, Ajit Singh informed the Punjab State Electricity Board authorities that Chain Singh has died and that electric connection may be released in his name. No objection from other co-sharers was made. It is further pleaded that plaintiffs are not co-sharers with defendant No.6 in the suit land, as they have sold the land inherited by them from Chain Singh to Sucha Singh and Nasib Singh vide sale deed dated 29.5.2000. Replication was filed, wherein the allegations raised in the R.S.A. No. 2429 of 2010 -4- written statement were denied and those of plaint were reiterated. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP. 2. Whether connection in dispute has been legally and lawfully released in favour of defendant No. 6? OPD 1-5 3. Whether the suit is not maintainable in the present form? OPD 4. Whether plaintiffs are estopped from filing present suit by their act and conduct? OPD 5. Whether plaintiffs have not approached the Court with clean hands? 6. Whether plaintiffs have no cause of action to file the present suit? OPD 7. Whether this Court has got no jurisdiction to try and decide this suit? OPD 8. Relief. Plaintiff No.2 -Surinder Pal Singh appeared himself as PW- 1 and also examined PW-2 Harbaksh Singh Nambardar, PW-3 Rattan Lal, Clerk, PSEB. In rebuttal, Ajit Singh – defendant appeared as DW-1 and relied upon sale deed dated 29.5.2000 Exhibit D-1. Defendant also examined DW-2 Santosh Kumar and closed the evidence. Learned trial Court after appraisal of the evidence, returned the finding on all the issues in favour of the plaintiffs and R.S.A. No. 2429 of 2010 -5- consequently, decreed the suit of the plaintiffs. Defendants No. 1 to 5 were directed to disconnect the electric connection in favour of defendant No.6 and release the same in favour of the plaintiffs within two months from the date of passing of the judgment. Feeling dissatisfied with the above said judgment dated 31.8.2009, passed by Sh. Vijay Kumar, Additional Civil Judge (Senior Division), Balachaur (Nawanshahr), the Ist appeal was preferred by the defendant-appellant and the same was decided by Sh. Nirbhow Singh Gill, Additional District Judge, Saheed Bhagat Singh Nagar, and the said appeal was dismissed vide judgment dated 29.4.2010. Still feeling dissatisfied with the judgments dated 29.4.2010 and 31.8.2008, referred to above, the defendant-appellant Ajit Singh has preferred the present regular second appeal. In paragraph No. 9 of the grounds of appeal, the appellant has mentioned that following substantial questions of law are involved in the present appeal:- 1. Whether no cause of action accrued to the plaintiff- respondents to file the present suit and the suit is more vexatious, baseless and abuse of the process of law and the Court as it was filed in May, 2005 when respondents No. 1 and 2 were not the co-sharers in the joint land owned by the appellant and others like Sucha Singh s/o Nasib Singh? 2. Whether the plaintiff-respondents No. 1 and 2 have concealed material facts while filing the suit and their suit is liable to be dismissed on this ground alone? R.S.A. No. 2429 of 2010 -6- 3. Whether the respondents No. 1 and 2 could file the present suit without availing the statutory remedy of appeal provided under the Electricity Act, 2005 and the Rules 2005, made thereunder? 4. Whether the relief sought by the respondents can be granted in law to them after they cease to be co-sharers? However, during the course of arguments, learned counsel for the appellant has raised the following substantial questions of law:- 1. Whether, if one of the co-sharers applies for the tubewell connection in his name in a joint land, the tubewell becomes the joint property? 2. Whether after the sale of land through sale deed Exhibit D- 1, the plaintiffs remain co-sharers and have any interest in the tubewell? 3. Whether plaintiffs have concealed the material facts from the Court regarding sale of the land to Sucha Singh through sale deed Exhibit D-1 and by their act have committed fraud upon the Court, as well as, on the defendants and on that account judgments of both the Courts below are vitiated? Learned counsel for the appellant has submitted that the land was joint when Chain Singh applied for the electric connection. The said connection for all intents and purposes would be joint with the defendant-appellant. In view of authority reported as Gopi Ram vs. Shyam Sunder and others 2006 (2) RCR (Civil) 710 (Pb), the R.S.A. No. 2429 of 2010 -7- electric connection has been rightly issued in favour of the appellant. I have carefully considered the said submission, but do not find any force in that submission. Counsel for the respondents No. 1 and 2 has brought to my notice that no Khasra number has been mentioned for installation of the connection. Admittedly, Chain Singh alone has applied for the electric connection on 23.5.1988. Said Chain Singh executed Will dated 16.4.1998 in favour of the plaintiffs, now respondents No. 1 and 2. Chain Singh died on 9.7.1998. The validity of the Will has not been challenged in the written statement, nor during the course of arguments. Even otherwise also, the registered Will dated 16.4.1998 in favour of the plaintiffs, now respondents No. 1 and 2, has been duly proved on the file. There is a recital in the Will that plaintiffs shall be the owners of the property owned by Chain Singh. Chain Singh admittedly died on 9.7.1998. The demand notice was issued in the year 2001 and the appellant has concealed the factum of Will in favour of the plaintiffs. The land was not joint in the year 2005 when the connection was released. The authority Gopi Ram's case (Supra), is not applicable to the facts of the present case, as connection was not meant to be installed in the joint land. It is settled law that once a connection is released on the basis of misrepresentation of the fact, that cannot be allowed to remain in the land of the appellant. There is finding of fact recorded by both the Courts below that plaintiffs have a legal right to have the connection on the basis of registered Will dated 16.4.1998 as the connection is movable property, which has been inherited by the plaintiffs. That being a finding of fact, cannot be interfered in the R.S.A. No. 2429 of 2010 -8- regular second appeal. Learned counsel for the appellant has further contended that vide sale deed Exhibit D-1, the plaintiffs have sold the land to Sucha Singh alongwith the share in tubewell. So, it is contended that the plaintiffs have not legal right to file the present suit. It is further contended that plaintiffs have concealed the factum of sale of land to Sucha Singh. The Hon'ble Apex Court in authority reported as A.V. Papayya Sastry and others vs. Government of A.P. and others 2007 (2) R.A.J. 451, has held that a litigant is bound to produce all relevant documents to the litigation. If he withholds a vital document to gain advantage on other side, he would be guilty of playing fraud on the court and opposite party and judgment will be vitiated on that account. I have considered the said submission and have also gone through the record of the case. The plaintiffs have sold only a small portion of land inherited by them from Chain Singh. There is other land inherited by them from Chain Singh. The demand notice for connection in question was issued in the year 2001 and it was released in the year 2005. The sale deed Exhibit D-1 is of year 2000. So, the tubewell in question cannot be sold by the plaintiffs as the same has not been installed. The recital in sale deed Exhibit D-1 is ritual in nature. The authority in A.V. Papayya Sastry's case (Supra), is rather helpful to the case of the plaintiffs, as the defendant -appellant has got released the connection without disclosing the fact that the appellant has no right of inheritance to the property of Chain Singh – deceased. R.S.A. No. 2429 of 2010 -9- The mutation of land of Chain Singh had already been attested in favour of the plaintiffs, much before the issuance of demand notice. So, the appellant is rather guilty of the concealment of material facts. It was not the requirement of law to mention that some land has been sold by the plaintiffs inherited from Chain Singh, for the decision of the present case. So, it cannot be said that there is concealment on the part of plaintiffs. The stand of Electricity Board is clear that it has released the connection in favour of the appellant as the authorities of Punjab State Electricity Board were not in knowledge of the fact that Chain Singh has executed Will dated 16.4.1998 in favour of the plaintiffs and that property of Chain Singh has been inherited by the plaintiffs. In view of the above discussion, all the points for determination, referred to above, stand determined against the appellant. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 23.7.2010 Judge chugh