RSA No.2592 of 2009 (O&M) ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2592 of 2009 (O&M) Date of decision:06.08.2010. Uttam Singh …Appellant Versus Sohan Singh …Respondent CORAM : HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. M.L.Saggar, Senior Advocate, with Mr. G.S.Brar, Advocate, for the appellant. Mr. G.S.Punia, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. Plaintiff is in second appeal against the judgment and decree of both the Courts below by which his suit for permanent injunction has been dismissed. Tersely, plaintiff filed a suit for permanent injunction in order to restrain the defendant from watering his fields comprising in Khewat No.71/1, Khatauni No.100/1, Khasra No.30/4, situated in village Lehal, Tehsil and District Ludhiana from electric motor (tube-well) on the ground that he is joint owner in possession of the land surrounding the land of the defendant where the electric motor is installed and further that defendant has no right to restrain the plaintiff from watering his fields. In the plaint, it was alleged that the defendant is his brother with whom he has the joint holding. The plaintiff has been watering his fields through 1 RSA No.2592 of 2009 (O&M) ***** electric motor installed in the land comprising in Khewat No.71/1, Khatauni No.100/1, Khasra No.30/4 from the date he inherited the land and he never relinquished his right in the Well and as such his share continues to exist. It was alleged that the defendant has threatened the plaintiff that he would not permit him to use the tube-well for the purpose of watering his fields. Hence, the suit was filed. In the written statement, the defendant had alleged that he is exclusive owner of the motor and electricity connection bearing account No.Z-181. The electric motor was installed by the defendant in the year 1986 in the bore dug up by him. He had constructed a room/kotha and also purchased the electric motor after defraying all expenses. The plaintiff had never spent a single penny on the installation of electric motor, therefore, there is no jointness of the electric motor of the plaintiff and the defendant. The plaintiff had moved a false complaint in the month of June, 2000 before the SDM, Payal in order to harass him, pursuant to which the Revenue Officer visited the spot and the plaintiff admitted in presence of various villagers and the revenue officers that he is not owner of the electric motor which belongs to the defendant. The SDM, Payal dismissed the application of the plaintiff. It was also alleged that the defendant had purchased 1/4th share of his brother Teja Singh vide sale deed dated 12.05.1998 bearing Vasika No.2954 for a sale consideration of Rs.1,72,500/- and 1/4th share of his other brother Ranjit Singh vide sale deed dated 14.06.1991 as there were four sons of Puran Singh who had inherited his estate to the extent of 1/4th share each. The defendant became owner of 3/4th share and plaintiff remained owner of 1/4th share. It was alleged that the defendant had been watering his 2 RSA No.2592 of 2009 (O&M) ***** fields from the joint bore dug up in the year 1975 which was insufficient to fulfil the needs of irrigation and then he dug up a separate bore in which he installed electric motor in the year 1986 bearing all expenses himself. In nut shell, the case set up by the defendant is that the bore which was sold by his brothers Teja Singh and Ranjit Singh was the old bore which has become non-functional and the tube-well/electric motor is installed in the bore which was dug up by him after meeting all the expenses. Therefore, the said bore/tube-well could not be termed to be a joint property of plaintiff and defendant. The plaintiff filed replication, in which the averments made in the written statement were denied and that of the plaint were reiterated. On the pleadings of the parties, the Trial Court framed the following issues: - “1. Whether plaintiff is entitled for permanent injunction as prayed for?OPP. 2. Whether suit is false and frivolous one?OPD. 3. Whether suit is not maintainable?OPD. 4. Relief.” The plaintiff examined himself as PW1, Ranjit Singh as PW2, Master Sher Singh as PW3, whereas defendant appeared as DW1 and examined Surjit Singh as DW2. He also led documentary evidence in support of his case. The learned Trial Court, while dismissing the suit of the plaintiff, observed as under: - “10. After going through the evidence discussed aforesaid and appreciating the contentions of the counsel for the parties, it is observed that the 3 RSA No.2592 of 2009 (O&M) ***** plaintiff has filed a suit for injunction restraining the defendant from watering his fields in the property situated at village Lehal whereas in his evidence, he talks of property situated at village Zirakh. It would be pertinent to mention here that towards the completion of the case, the plaintiff had filed an application for amendment of plaint to change the number of the property and the name of the village from Lehal to Zirakh but the same was disallowed. There is no dispute regarding the relationship between the plaintiff and the defendant and the property being joint. Plaintiff Uttam Singh in his cross examination could not tell anything regarding the electric motor, so much so that he did not even know the number of the electric connection. He has specifically admitted that he has never cultivated the property nor has he watered his fields from the electric motor in question. He has further admitted that his land is being cultivated by one Didar Singh and the fields are being watered from his own bore by Didar Singh. Ranjit Singh, PW2 in his cross examination has specifically admitted that the defendant is the sole owner of the electric motor. Similarly, PW3 Sher Singh has also admitted in his cross examination that the 4 RSA No.2592 of 2009 (O&M) ***** electric connection of the motor is in the name of Sohan Singh, defendant alone. The defendant on the other hand has brought on record the notarized copy of the passbook of the electricity connection Ex.D6 and Ex.D7 in his name. He has also brought on record the electricity bills Ex.D8 to Ex.D13 which are in his name. Certified copy of the proceedings of the SDM Ex.D1, Ex.D2, Ex.D3 specifically shows that on spot inspection, it was found that the electric motor belongs to defendant Sohan Singh alone and the plaintiff has no right over the said electric motor. The plaintiff Uttam Singh has thus failed to prove that he prima facie has any joint right in the electric motor which exclusively belongs to the defendant and this is evident from the overwhelming evidence both oral and documentary brought on record by the defendant. The plaintiff in the head note of the plaint has sought a restrain on the defendant from watering his fields, the defendant being the owner of the electric motor cannot be restrained from watering his fields from the electric motor.” Aggrieved against the judgment and decree of the learned Trial Court, the plaintiff filed first appeal which has also met with the same fate in view of the following observation: - 5 RSA No.2592 of 2009 (O&M) ***** “9. I have given anxious consideration to the contention raised by the learned counsel for the appellant. A perusal of the judgment of the learned Trial Court shows that the learned trial Court after detailed discussion arrived at the conclusion that the plaintiff has filed a suit for injunction restraining the defendant from watering his fields in the property situated at village Lehal, whereas in his evidence he talks of property situated at village Zirakh. It would be pertinent to mention here that towards the completion of the case the plaintiff had filed an application for amendment of plaint to change the number of the property and the name of the village from Lehal to Zirakh but the same was disallowed. There is no dispute regarding the relationship between the plaintiff and the defendant and the property being joint. Plaintiff Uttam Singh in his cross examination could not tell anything regarding the electric motor, so much so that he did not even know the number of the electric connection. He has specifically admitted that he has never cultivated the property nor he has watered his fields from the electric motor in question. He has further admitted that his land is being cultivated by one Didar Singh and the fields are being 6 RSA No.2592 of 2009 (O&M) ***** watered from his own bore by Didar Singh. Ranjit Singh PW2 in his cross examination has specifically admitted that the defendant is the sole owner of the electric motor. Similarly, PW3 Sher Singh has also admitted in his cross examination that the electric connection of the motor is in the name of Sohan Singh defendant alone. The defendant on the other hand has brought on record the notarized copy of the passbook of the electric connection Ex.D6 and Ex.D7 in his name. He has also brought on record the electricity bills Ex.D8 to Ex.D13, which are in his name. Certified copy of the proceedings of the SDM Ex.D1 to Ex.D3 specifically shows that on spot inspection it was found that the electric motor belongs to defendant Sohan Singh alone and the plaintiff has no right over the said electric motor. The plaintiff Uttam Singh has thus failed to prove that he prima facie has any joint right in the electric motor which exclusively belongs to the defendant and this is evident from the overwhelming evidence both oral and documentary brought on record by the defendant. The plaintiff in the head note of the plaint has sought a restrain on the defendant from watering his fields, the defendant being owner of 7 RSA No.2592 of 2009 (O&M) ***** the electric motor can not be restrained from watering his fields from the electric motor.” Still aggrieved, the plaintiff has filed the present appeal along with an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 25 days in filing of the appeal. In the said application, i.e. CM No.7674-C of 2009, notice was issued on 03.12.2009. The respondent appeared and besides the arguments in the application of condonation of delay, learned counsel for the appellant has argued that the substantial question of law involved in this appeal is that “whether the suit can be dismissed only on technical ground of the name of village particularly when the application was moved for amendment and whether the Well/bore exists in the joint property which was inherited by them after the death of their father in the year 1973 and whether in the sale deed executed by Teja Singh and Ranjit Singh, the reference of bore is sufficient to prove that the bore in question is in the joint holding. In support of his arguments, learned counsel for the appellant has submitted that the learned Court below has erred in dismissing the application for amendment. He has relied upon a decision of this Court in the case of Bhagwan Dass Vs. Jai Kishan and others, 2010(2) PLR 787, where the tube-well connection was in the name of the defendant and it was held that he (defendant) can not restrain the plaintiff by raising boundary wall around it. On the contrary, learned counsel for the respondent has submitted that it has been proved on the record before both the Courts below that the electricity connection is in the name of the defendant, the receipts of payment of electricity bills also shows that the expenses are being paid by the defendant and that the plaintiff has 8 RSA No.2592 of 2009 (O&M) ***** shown total ignorance about installation of the electric motor and electric bills. He had also admitted that his land is being irrigated by Didar Singh from his own bore which is installed in his land. Therefore, it is not the case that he is not getting water for irrigation for his land. It is also submitted that the defendant has categorically stated that the earlier bore of 1975 had become non-functional. After that, the defendant had dug up a new bore from his own expenses. In this regard, not even a suggestion has been put to him in his cross examination, therefore, it is argued that if the bore/Well is dug up by the defendant himself from his own expenses and has installed electric motor, obtained electricity connection and is paying the electricity charges, the plaintiff can not file a suit for injunction to restrain the defendant even from watering his land from his own tube-well. It is further submitted that the judgment relied upon by the plaintiff in the case of Bhagwan Dass Vs. Jai Kishan and others (supra), in which reliance has been placed on Om Parkash and others Vs. Ishwar Singh and others, (2008-4) 152 PLR 38, is not applicable because in the said case it was alleged by the petitioners that the land with the tube-well has fallen to the share of the petitioners after partition, however, as the electricity connection was in respondent No.1’s name, it was apprehended that respondent Nos.2 and 3 would disconnect the electricity connection at the behest of respondent No.1. It was submitted that in case the parties are directed to maintain status quo with respect to disconnection of the electricity connection, the petitioners would not prevent respondent No.1 from using the tube-well or accessing water, if so required by respondent No.1. In this case, the Court observed that the question whether the land has been partitioned or not 9 RSA No.2592 of 2009 (O&M) ***** and whether the tube-well was purchased from joint or private funds is a question to be determined during the course of the trial, but disconnection of the electricity connection would definitely prejudice cause of the petitioners. On this premises, the parties were directed to maintain status quo with respect to the disconnection of the electricity connection, subject to the petitioners’ paying the monthly electricity bills and clearing all up to date arrears, if any. I have heard both the learned Counsel for the parties and perused the record with their assistance. To my mind, the question involved in this appeal is “as to whether the plaintiff, on the strength of being a co-sharer, can seek a restraint order against the defendant from irrigating his land from the Well/bore dug up by him from his own expenses in which he had installed electric motor, obtained electricity connection and is making payment of the electricity charges to the electricity Board.” In this case, both the Courts below have recorded a concurrent finding of fact, insofar as the electric motor and electricity connection and also the payment of electricity bills by the defendant is concerned in favour of the defendant and insofar as the bore/Well is concerned, the defendant has categorically pleaded and proved in his statement that the bore/Well dug up in the year 1975 had become non-functional and after that in the year 1986 the defendant had dug up a new bore with his own expenses on which he has not been cross examined at all nor even a suggestion has been put to him that he is making a false statement. Thus, from the preponderance of evidence, it is proved that the defendant is not only the owner of the electric motor and electricity connection but also of the 10 RSA No.2592 of 2009 (O&M) ***** bore/Well which is in question and is entitled to use it in a husband like manner without any interference from any quarter much less on the basis of the suit filed by his co-sharer. In view of above discussion, I do not find any merit in the present appeal and the same is hereby dismissed. No costs. August 06, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE 11