R.S.A.No.2843 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2843 of 2007 Date of decision: 4th November, 2009 Gurdip Singh ......Appellant Versus Gian Singh and others ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the appellant. Mr. Deepak Arora, Advocate for the respondents no. 1 and 2. Rajive Bhalla, J.(Oral) The appellant challenges judgments and decrees dated 18.8.2004 and 30.5.2007, passed by the Civil Judge(Junior Division), Gurdaspur and the Additional District Judge (Adhoc),Fast Track Court, Gurdaspur, dismissing his suit and the appeal, respectively. The appellant and respondent no. 3 filed a suit for permanent injunction to restrain respondents no. 1 and 2 from demolishing the well duly reflected in the Jamabandi for the year 1996-97 and from felling and removing trees standing on land measuring 1 kanal 10 marlas bearing khewat no. 3, khatauni 6, Rect.13, killa 27. In response, respondents no. 1 and 2 filed a written statement pleading therein, that they alongwith Dharamvir Singh, Kulwinder Singh and Gurdial Singh are owners of the suit land and the R.S.A.No.2843 of 2007 2 plaintiffs have no right, title or interest therein. It was further pleaded that there is no well in existence at the spot, as is apparent from the jamabandi. After considering the pleadings, the trial court framed the following issues:- “1. Whether the plaintiffs are entitled for permanent injunction?OPP 2. Whether the suit is not maintainable?OPD 3. Whether the plaintiffs have no locus standi to file the present suit?OPD 4. Relief.” Upon consideration of the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that though the jamabandi records that the appellants have a right to draw water from the well but as the appellant and his witnesses have admitted that the well is not in a working condition for the last 20-22 years, they are not entitled to any injunction. It was further held that as per the entries in the jamabandis for the year 1981-82 onwards, the well is not in a working condition. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 30.05.2007, the Additional District Judge (Adhoc),Fast Track Court, Gurdaspur, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that the first appellate court has based its opinion on the judgment and decree dated 1.02.2007 Ex.D-1 and Ex.D-2 which were produced before the first appellate court, in additional evidence. Ex.D-1 is irrelevant as it is recorded in Ex.D-1 that the appellant though referred to as a plaintiff did not affix his thumb impression on the power of attorney. It is R.S.A.No.2843 of 2007 3 further submitted that as the entry in the revenue record clearly records that the appellant is entitled to draw water from the well, the courts below had no jurisdiction to dismiss the suit and the appeal. Counsel for the respondents, on the other hand, submits, that even if the jamabandis and the judgment in the earlier suit are ignored, the appellant and his witnesses have admitted during their cross examination that the well is not in a working condition for the last 20-22 years. Therefore, the prayer for grant of an injunction was rightly rejected by the courts below. I have heard counsel for the parties, perused the impugned judgments and decrees and considered the substantial questions of law framed by counsel for the appellant but express my inability to hold that the impugned judgments and decrees suffer from any error, as would raise a substantial question of law. The revenue entries clearly record that the well is no longer in a working condition. The appellant and his witnesses have admitted this fact during their cross examination. It appears that the suit was filed so as to stall proceedings for partition which are admittedly pending before the revenue authorities. The findings recorded by the courts below with respect to the non-functional well are based upon the revenue record Ex.D-3, D-4, D-5 and D-6 i.e. jamabandis for the years 1981-82, 1987-88, 1991-92, 2001-02. The entry in the revenue record, records that the appellant is entitled to draw water from the well stands rebutted by his deposition and the deposition of his witnesses, who have admitted, in their cross examination that the well is no longer functional. The findings of fact recorded by the courts below, in my considered opinion do not suffer from any error that would give rise to a substantial question of law, much less the questions of law framed by counsel for the appellant. R.S.A.No.2843 of 2007 4 In view of what has been stated hereinabove, as the impugned judgments and decrees do not suffer from any error of law, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 4th November, 2009 Shivani Kaushik