C.R. No. 5036 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5036 of 2008 (O&M) Date of decision: January 8, 2009 Jagdish and another .. Petitioners v. Om Parkash .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. P. K. Ganga, Advocate for the petitioners. Mr. P. S. Jammu, Advocate for the respondent. .. Rajesh Bindal J. Challenge in the present petition is to the order passed by the learned lower appellate court, whereby in an appeal filed by the respondent-plaintiff, the order passed by the trial court dismissing the application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, was reversed and interim injunction as prayed for was granted restraining the petitioners from installing or using the tubewell. Briefly, the facts are that the suit was filed by the respondent- plaintiff claiming that he is co-owner in the suit land with the petitioners- defendants along with other persons. The land is still not partitioned. The respondent had already installed a tubewell in the land which is in his possession. The grouse was raised when the petitioners-defendants sought to instal the tubewell in the land in their possession. The learned trial court found that though the land is jointly owned by the parties and has not been partitioned formally but still the parties are in independent possession thereof and as the respondent- plaintiff had installed a tubewell in his possession, there was nothing wrong in case the petitioners-defendants also wanted to instal a tubewell in the land in their possession, as the same would not have, in any manner, diminished the value of the entire chunk of land which was jointly owned by the parties. The trial court dismissed the injunction application. However, the learned lower appellate court C.R. No. 5036 of 2008 [2] accepted the plea holding that unless the land was formally partitioned, the tubewell could not be installed on any specific portion of land in possession of any of the co-sharers. Learned counsel for the petitioners submitted that the order passed by the trial court dismissing the application for injunction filed by the respondent- plaintiff was perfectly in consonance with law. It is not in dispute that the parties to the litigation are joint owners of big chunk of land but are in independent possession of the area owned by them. Once the respondent-plaintiff had installed tubewell to irrigate his land in the area in his possession, there was nothing wrong in case the petitioners-defendants wanted to instal a tubewell in the area in their possession. In fact, the injunction as such could not have been granted as the tubewell had in fact already been installed and was operative. The order passed by the learned court below is totally vague, which directs in the first hand restraining the petitioners from installing the tubewell and on the other hand, it directs that in case the tubewell had been installed, they are restrained from operating the same. On the other hand, learned counsel for the respondent submitted that the petitioners merely own 6 marlas of land. The tubewell is not required to be installed for irrigating such a small portion of land and it is only that the petitioners want to harass the respondent that a tubewell in the vicinity is being installed so that water level in the tubewell installed by the respondent goes down. Having heard learned counsel for the parties, I find merit in the submissions made by learned counsel for the petitioners. The admitted facts on record are that both the parties are joint owners of the land but are in independent possession of the area owned by them. The respondent-plaintiff had installed a tubewell in the area which is in his possession. The petitioners also wanted to instal a tubewell in the area in their possession and in fact, as is claimed before this Court, the tubewell has been installed. The stand of the respondent that with the installation of the tubewell by the petitioners, the water level in the tubewell will go down has no legs to stand as for that evidence will have to be considered which is yet to be recorded. Prima facie, it is a case where an owner of the land wants to utilise the same in best possible manner. With the installation of the tubewell, the value of joint khewat is not going to be diminished. Once the tubewell has already been installed, I do not find any reason to restrain the petitioners from using the same as the water taken out therefrom will certainly irrigate some fields which will help in yielding more crops and for that reason, it does not remain a lis between the parties at this stage, as larger public interest is served in that. Otherwise, the rights of the parties shall be determined finally by the court below after evidence is led. C.R. No. 5036 of 2008 [3] For the reasons mentioned above, the impugned order passed by the learned lower appellate court is set aside and that of the trial court is restored. The application filed by the respondent-plaintiff for interim injunction is dismissed. The revision petition is disposed of in the manner indicated above. (Rajesh Bindal) Judge 8.1.2009 mk