R.S.A. No.81 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.81 of 2006 Date of Decision:26.09.2008 Pala Singh .....Appellant Vs. Resham Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. L.S. Sidhu, Advocate for the appellant. Mr. Jasjit Singh Advocate for the respondent. **** HARBANS LAL, J. Pala Singh filed the civil suit against Resham Singh for grant of permanent injunction restraining the latter from carving out water course (khal) out of the land measuring 7 kanal 18 marlas on the grounds that he (plaintiff) is co-sharer in the above-mentioned land and his name is duly incorporated as such in the jamabandi as well as khasra girdawari. The defendant has got no concern therewith nor the water course exists on the spot. The defendant is bent upon to carve out the water course out of the suit land forcibly and illegally qua which he has no right. He approached the defendant with the help of some respectables and requested him to desist from doing so, but in turn, he threatened to carve out the water course. In his written statement, the defendant has inter-alia pleaded that the Civil Court has no jurisdiction to entertain and try the suit being barred under Section 30-G of the Northern Indian Drainage and Canal Act, 1873 (for brevity, `the Act'). The plaintiff has not come to the Court with clean hands and has suppressed material facts. The dispute regarding the demolished khal was decided by the R.S.A. No.81 of 2006 -2- Divisional Canal Officer, Hari Ke Division Canal Colony, Ferozepur on the application of Balkar Singh son of Resham Singh because the defendant Resham Singh being 80 years of age could not walk properly. As alleged, the water course is running through the disputed land for the last about 15/20 years. The same was demolished by the plaintiff in June, 2000. On application moved under Section 30FF of the Act, the aforesaid Divisional Canal Officer restored the khal vide his order dated 5.7.2000 with the help of Police vide rapat dated 30.5.2002. This material fact has been concealed by the plaintiff from the Court. An FIR No.85 under Sections 447/427/148 read with Section 149 of IPC was registered against the accused on 16.6.2002 at Police Station Mallanawala. From the pleadings of the parties, the following issues were framed:- i) Whether the plaintiff is entitled to decree of permanent injunction as prayed for?OPP ii) Whether Civil Court has no jurisdiction to try the present suit?OPD iii) Whether the suit is within limitation?OPP iv) Whether suit is not maintainable?OPD v) Relief. After hearing the learned counsel for the parties and examining the evidence on record, the Court of learned Civil Judge (Junior Division), Ferozepur dismissed the suit vide his judgment and decree dated 24.5.2005 Feeling aggrieved therewith, the plaintiff Pala Singh went up in appeal, which has also been dismissed by the Court of learned Additional Districit Judge, Ferozepur vide his judgment and decree dated 29.8.2005. Being dissatisfied therewith, the plaintiff has preferred this appeal. R.S.A. No.81 of 2006 -3- I have heard the learned counsel for the parties, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. L.S. Sidhu, Advocate, appearing on behalf of the appellant urged with a good deal of force that the appellant/ plaintiff is a co-sharer in the suit land and his name figures as such in the jamabandi as well as khasra girdawari. The respondent/ defendant has got no concern with the suit land nor is there any water course in existence at the spot. The respondent/ defendant is bent upon to carve out the water-course out of the land forcibly and illegally. The appellant/ plaintiff had requested him not to carve out the water-course out of the suit land, but he did not pay any heed to his request and threatened to do so. Thus, the findings returned by both the Courts below being contrary to the evidence are liable to be reversed. In response to these submissions, Mr. Jasjit Singh, Advocate representing the respondent/ defendant urged with great eloquence that a glance through the findings returned by both the Courts below would reveal that the same are well-founded and consequently, no interference is called therein. I have given a deep and thoughtful consideration to these submissions. As is borne out from the report, the water-course in dispute was existent and the same was demolished by the plaintiff / appellant. It was got restored by the canal authorities with the aid of police as well as revenue officials on 30.5.2002. Again, the plaintiff- appellant alongwith others pulled down it on 9.6.2002 and an FIR No.85 Ex.DW4/A was registered. As transpires from the record, the plaintiff- appellant has deliberately suppressed these material facts by not disclosing the same in the plaint. In his cross- R.S.A. No.81 of 2006 -4- examination, the plaintiff Pala Singh as PW1 regretted his inability to tell whether any case regarding restoration of the khal was decided by the Court of Divisional Canal Officer, Hari Ke Division, Ferozepur on 5.7.2000. In his next breath, he again gave an evasive reply with regards to the filing of the case by Balkar Singh, son of defendant or that his sons had appeared before the Court or that the khal in dispute was restored on 30.5.2002 with the police help in the presence of Ziledar and Patwari or that any case was registered against his sons and others under Sections 447/427/148/149 IPC for demolishing the khal or that when and who came to the spot for digging the water-course forcibly. Thus, a close examination of his cross-examination brings out that he has equivocated reply to all the material questions which can be construed to be admissions on his part. It does not stand to the reason that he was unaware of the fact that any case regarding restoration of the khal was decided by the Court of Divisional Canal Officer, Hari Ke Division, Ferozepur on the said date or that the same was filed by Balkar Singh son of the defendant or that his sons had appeared before the said Court or that the same was got restored on 30.5.2002 with the police help in the presence of the said officials or that the case was registered under the said Sections. The maxim of equity contemplates that who approaches the Court must come with clean hands, whereas in the instant case the plaintiff- appellant has suppressed the material facts which were required to be disclosed in his plaint. Obviously, he is guilty of suppression of material facts. The reason for such suppression may be that if he disclosed these facts in his plaint, he will lose his case in the Court. Baldev Singh, DW1, Ziledar Ferozepur Hari Ke Division, Ferozepur has solemnly affirmed that on 5.7.2000, Divisional Canal Officer, Hari Ke Division under Section 30FF (2) of the Act and R.S.A. No.81 of 2006 -5- Punjab Amendment Act 23/1965 restored the demolished khal after hearing the parties. It is in his further evidence that on 30.5.2002 he along with patwari and police party had gone to the spot and called both the parties and restored the khal in Rectangle No.10, Killa No.2 on the common boundary of Village Gulamiwala. In view of the above discussion, no inference is warranted in the findings returned by both the Courts below. To add further to it, no substantial question of law arises for determination by this Court in this appeal. Sequelly, this appeal is dismissed leaving the parties to bear their own costs. September 26, 2008 ( HARBANS LAL ) renu JUDGE