RSA No.3866 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3866 of 2008 Date of Decision:22.03.2010 Buta Singh .... appellant Versus Banta Singh .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sandeep Arora,Advocate for the appellant Mr.Satbir Singh, Advocate for the respondent **** RAKESH KUMAR GARG J. This is plaintiff's second appeal challenging the judgment and decrees of the courts below whereby his suit for permanent injunction restraining the defendant-respondent from interfering in any manner or dispossessing him from the tube well in dispute without due course of law was dismissed. As per the averments made in the suit, the respondent had no right, title or interest in the tube well connection but he was illegally and forcibly and without adopting due course of law was trying to take the possession of the tube well. As he was the sole owner of the tube well electric connection, the plaintiff requested the defendant not to adopt the illegal manner. However, defendant refused. Hence the suit. The suit was contested by the respondent contending that RSA No.3866 of 2008 2 the defendant never threatened the plaintiff and therefore the question of any request made by the plaintiff in this regard does not arise. The partition application was pending in the Court of Tehsilar, Gurdaspur and since the tube well in dispute was jointly possessed by the parties in suit. It was further submitted that a compromise was effected between the parties in which price of the tube well was settled at Rs.90,000/-. The plaintiff did not comply with the compromise and failed to execute the aforesaid compromise/agreement(Ex.D-1). All other averments were denied and dismissal of the suit was prayed for. After hearing both the parties, the trial Court on appraisal of the evidence and in the light of the submissions made by the parties came to the conclusion that both the parties were entitled to use the tube well and electric connection jointly as tube well was found to be installed in joint land of the parties. Accordingly, vide judgment and decree dated 19.07.2006 the trial Court disposed of the suit with the observations that defendant has also a right to use the same but has no right to cause any obstruction in running of the electric connection bearing No.G-7 by the plaintiff for his own use. The trial Court also ordered that parties would make arrangements for using the electric connection on alternate days. Not satisfied with the aforesaid judgment and decree, appellant filed an appeal before the Lower Appellate Court which was dismissed vide judgment and decree dated 02.08.2008 passed by the District Judge, Gurdaspur. Still not satisfied, the appellant has filed the instant appeal. Learned counsel for the appellant has vehemently argued that the appellant cannot be non-suited on the basis of agreement Ex.D-1 dated 14.05.2000 which has not been proved in accordance with the law. It has been established on record that appellant was the exclusive owner of the tube well in connection whilch was installed in the joint land of the parties RSA No.3866 of 2008 3 and thus findings of the courts below were liable to be set aside being perverse. On the basis of the aforesaid arguments, learned counsel for the appellant submitted that the following substantial questions of law arise in this appeal: 1. Whether the execution of agreement Ex.D-1 with relation to the tube well can be taken into consideration for adjudication of the claim of the respective sides even when neither the scribe has been produced on the record nor the attesting witness as produced has been able to depose anything about the contents of the documents being illiterate? 2. Whether the plaintiff appellant is the exclusive owner of the tube well which is intalled in the land comprised iln R-24 R-1(7-2) in the revenue estate of Village Baiyan, Tehsil and District Gurdaspur and whetherhe he is liable to exclusively use the same as the plaintiff is regularly paying the electricity bills of the usage of the tube well as well as have also got the electric connection under his name? 3. Whether both the courts below have misled the facts and misappreciated the evidence on the record thereby rendering the judgment and decrees to be illegal, void and without jurisdiction and whether on that account the judgment and decrees need to be reversed and set aside? RSA No.3866 of 2008 4 I have heard the learned counsel for the parties and perused the judgment and decrees of the courts below. Admittedly, the land on which the tube well connection has been installed is joint and since the release of the electric connection in the year 1966, the tube well is being used jointly. There was no dispute with regard to the aforesaid tube well and electric connection before the filing of the suit. Moreover, the defendant-respondent has proved on record the agreement Ex.D-1. Though the appellant has admitted his signatures on the aforesaid agreement Ex.D-1 but has tried to wriggle out of the aforesaid agreement by stating that he had put his signatures on this document under pressure. However, appellant has failed to bring on record sufficient evidence to support his aforesaid plea that the signatures were put by him on the agreement under pressure. That being so, appellant cannot be allowed to wriggle out of his admission whereby he has accepted the jointness of electric connection. The courts below have also recorded a finding that the appellant is also guilty of concealment of material facts from the court as he denied the execution of agreement Ex.D-1 in his replication and, thus, in view of the aforesaid discussion no interference is warranted in the findings of the courts below which have been recorded on appreciation of evidence. It is well settled that High Court while exercising its jurisdiction under Section 100 CPC is not to act as a third court of appeal. No other point was argued. No substantial question of law arises. No merit. Dismissed. (RAKESH KUMAR GARG) JUDGE 22.03.2010 neenu