IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1910 of 2007 (O&M) Date of decision: 13th October, 2011 Pahalwan Chand … Appellant Versus Hans Raj and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Vikas Kumar, Advocate for the appellant. None for the respondents. KANWALJIT SINGH AHLUWALIA, J. Appellant-plaintiff having failed in two rounds of litigation has filed present regular second appeal. A suit for permanent injunction was instituted by the appellant-plaintiff praying that the defendants be restrained from forcibly and illegally interfering in any manner whatsoever into the land of the plaintiff i.e. 1/4th share of the land measuring 51 Kanals 4 Marlas, detail and description whereof has been given in the plaint. It was further prayed that the defendants should not disturb the electricity connection of the tube well bearing No.S-4/102-AP installed in Square No.33 Killa No.22 situated in village Mangala, Tehsil and District Sirsa. He had also prayed that the defendants should not interfere into the smooth operation of the tube well in any manner. In the suit so filed, it was pleaded that the plaintiff was owner in possession of 1/4th share of land measuring 51 Kanals 4 Marlas, detail Regular Second Appeal No.1910 of 2007 (O&M) and description whereof has been given in the plaint. Furthermore, he was owner in possession of ½ share of tube well installed in Square No.33 Killa No.22 situated in village Mangala, Tehsil and District Sirsa. It was stated in the suit that previously Hans Raj-defendant No.1 had instituted a suit for permanent injunction against the present appellant- plaintiff on the ground that he was a lessee over the share of Sher Chand, father of defendants No.4 and 5. According to the plaintiff, Dr.Abdul Majid, the then Civil Judge, Sirsa vide his order dated 30th September, 1998 had directed both the parties to maintain status-quo regarding possession and use of the land and tube well till final decision of the suit. The appeal filed against that order was dismissed and so was the revision filed in this Court. Thereafter, the appellant-plaintiff had filed an application under Order XXXIX Rule 2A CPC seeking punishment to defendant No.1 on the ground that he had interfered and thereby had disobeyed the order of the Civil Court. However, the suit so filed by defendant No.1 was withdrawn on 15th February, 2000. A grievance was made that the defendants had threatened to shift the electricity connection from the tube well to the other portion of land of defendants No.4 and 5 comprised in Square No.60 Killa No.1. They had also threatened to interfere into the possession of the plaintiff over the suit land and thereby made an attempt to obstruct the smooth irrigation of the suit land through the tube well in question forcibly and illegally. Notice of the suit was issued. Defendants No.1, 4 and 5 i.e. Hans Raj, Makhan Ram and Sulakhan Singh filed a joint written statement. They raised many preliminary objections regarding maintainability of the suit, no cause of action having been accrued to the plaintiff and having concealed the material facts from the Court. 2 Regular Second Appeal No.1910 of 2007 (O&M) Furthermore, locus-standi of the plaintiff was also questioned. On merits, it was admitted to the extent that the plaintiff is owner of the suit land in respect of 1/4th share of land measuring 51 Kanals 4 Marlas, mentioned in the head note of the plaint. However, rest of the averments made in the plaint were denied. it was stated that the plaintiff had leased out the land of his 1/4th share in favour of Kahan Chand son of Sher Chand son of Karam Chand, resident of village Mangala, Tehsil and District Sirsa for a period of ten years with effect from 18th August, 1998 to 17th August, 2008 vide a registered lease deed No.2319 dated 18th August, 1998 and has also delivered possession at the spot. It was stated that it was the lessee Kahan Chand who was in actual, physical and cultivating possession of the suit land since 18th August, 1998 continuously and so far as the tube well in question is concerned the same is also the exclusive property of defendant No.4 namely Makhan Ram. The tube well has been installed and electricity connection has been obtained by Makhan Ram-defendant No.4 on his name and he is making exclusive use of the same. It was further stated that Sher Chand son of Karam Chand, resident of Village Mangala, Tehsil and District Sirsa was the owner in possession of ½ share of the land. He passed out the land of his ½ share in favour of Hans Raj-defendant No.1 for a period of 99 years since Rabi 1998 till Kharif 2096 and delivered its possession at the spot vide a lease deed No.4621 dated 19th January, 1998 registered in the office of Sub Registrar, Sirsa. Therefore, Hans Raj-defendant No.1 is in possession of ½ share of the total land measuring 51 Kanals 4 Marlas in his capacity as a lessee and is deriving the fruits of the same. After the death of Sher Chand, ownership rights qua the ½ share of land have been inherited by defendants No.4 and 5 namely Makhan Ram and Sulakhan Singh along 3 Regular Second Appeal No.1910 of 2007 (O&M) with one Smt.Mohran Bai widow of Sher Chand. The plaintiff having not impleaded Smt.Mohran Bai and another co-sharer Smt.Dharmo Bai, is not entitled to pursue the suit which is bad for non-joinder of necessary parties. It was further stated that the defendants were legally entitled to manage the tube well in the manner they like and the plaintiff has no right or authority to check them. Dakshani Haryana Vidyut Parsaran Nigam Limited, Panchkula through its Managing Director and its Sub Divisional Officer, i.e. defendants No.2 and 3 to the suit, filed a separate written statement wherein they stated that the tube well connection was on the name of Sher Chand son of Karam Chand. Sher Chand had got extension of load from 15 BHP to 20 BHP vide an application dated 5th July, 1994 and the same was extended as per rules and regulations of the department. Chanan Ram son of Pahalwan Chand (plaintiff) had given his consent by executing a surety bond. After the death of Sher Chand, the said connection was transferred in the name of Makhan Ram-defendant No.4 vide RCO No.35/181 dated 14th September, 1999 and the said tube well is standing in the name of Makhan Ram son of Sher Chand. The appellant-plaintiff filed replication wherein he reiterated the averments made in the plaint and denied that of the written statements. The trial Court after conclusion of pleadings formulated following issues: “1. Whether the plaintiff is entitled to the relief of injunction, as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has no cause of action and locus-standi to file the present suit? OPD 4 Regular Second Appeal No.1910 of 2007 (O&M) 4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? 5. Whether the plaint is liable to be rejected under Order 7 Rule 11 CPC? OPD 6. Whether the suit is bad for non-joinder of necessary parties and mis-joinder of parties? OPD 7. Relief.” The plaintiff himself appeared as PW-1. He also examined three other witnesses namely Faquir Chand PW-2, Hari Lal PW-3 and Chanan Ram PW-4. Whereas, the defendants examined six witnesses. Defendant No.4 Makhan Ram appeared as DW-6. The trial Court decided issues No.1 and 2 together. It took into consideration the testimony of plaintiff-Pahalwan Chand, who appeared as PW-1. He stated that about ten years ago, a compromise had taken place between him and Sher Chand and it was agreed that Sher Chand will give Rs.8,000/- to him and thereby he will become exclusive owner of the tube well. However, Sher Chand had not given the said amount. The Court also took into consideration the deposition of Dharampal, Upper Division Clerk, DW-4 and stated that as per the verification of record, the tube well connection was initially in the name of Sher Chand and after his death the same was transferred in the name of Makhan Ram-defendant No.4. The trial Court further held that on the day of filing of the suit, plaintiff was not in possession of the land as he had leased out the same to one Kahan Singh. The lease deed, according the plaintiff, was cancelled vide a writing dated 5th August, 2002. The Court held that this fact was suppressed in the plaint and it is only subsequently that the factum of cancellation of the lease deed was brought into the notice of the Court. The trial Court further held that a person, who is not 5 Regular Second Appeal No.1910 of 2007 (O&M) in possession of the suit land, is not entitled to grant of injunction. It further held that even if it is believed that Kahan Singh had not taken possession on the basis of lease deed then the status of the plaintiff was of a co-sharer and a co-sharer cannot seek injunction against another co- sharer. Thus, the remedy available to the plaintiff was to seek partition. Regarding the tube well, the trial Court held as under: “31. So far as the ownership of the plaintiff in the tube well in question to the extent of ½ share is concerned, the plaintiff has miserably failed to prove that. Though, the witnesses examined by the plaintiff have all spoke about compromise Ex.PA, however, in his plaint, the plaintiff has not mentioned a single word regarding any such compromise. It is well settled proposition of law that no evidence can be led or taken into consideration which is beyond pleadings. In this regard reference can be made to Jit Singh Vs. Bhupinder Pal Kaur and others, 1993(1) SLJ 377. So, since the plaintiff has not pleaded in his plaint regarding taking place of any such compromise, the evidence led by the plaintiff in this regard cannot be looked into. Even otherwise, the defendants have duly proved on record Bill and receipts regarding charges of installation of Submersible Motor and construction of well. Even the record of the electricity department is in the name of defendants. Therefore, it may safely be concluded that since the plaintiff has not been able to prove his ownership qua the tube well, he has no right to seek any injunction restraining the defendants from shifting the tube well.” The lower appellate Court affirmed the findings returned by the trial Court. It further held that the document Ex.PA, a writing dated 14th June, 1980 has not been admitted by the defendants. The plea raised by the plaintiff that since the amount of Rs.8,000/- as per Ex.PA was not paid to him therefore, the Court should infer that the tube well 6 Regular Second Appeal No.1910 of 2007 (O&M) remained in joint ownership of both the parties, was rejected on the ground that no reliance can be placed upon the document Ex.PA as the same suffers from glaring discrepancies and executants of the document have not been examined by the plaintiff. The lower appellate Court further held as under: “10. … … … None of the co-sharers has been shown in exclusive possession of any part of the suit land. In such circumstances, as is the settled law no injunction can be issued in favour of a co-sharer against another co- sharer… … …” Mr. Vikas Kumar, Advocate appearing on behalf of the appellant-plaintiff, has stated that even if the appellant had leased out the land to Kahan Chand, he being a landlord has not lost the possession as he has a legal possession if not the actual. Thus, according to counsel for the appellant, as per the ratio of law laid down in ‘Sadashiv Shyam Sawant and others v. Anita Anant Sawant’ 2010(2) RCR (Civil) 252, he is entitled to seek injunction against the defendants. A perusal of the above said judgment rendered in Sadashiv Shyam Sawant’s case (supra) shows that it was held therein that a landlord holding a legal possession is entitled to sue a trespasser in possession, but it nowhere says that such a person can seek injunction against a co-sharer. A categoric concurrent finding of fact has been returned by both the courts below that the appellant-plaintiff being a co- sharer is not entitled to seek injunction. The courts below have also noted an ancillary fact that on the day the suit was filed, Kahan Chand was in actual possession but the relief has been denied to the appellant-plaintiff on the ground that he is a co-sharer in the suit land along with the defendants. Therefore, the courts below have rightly held that the remedy 7 Regular Second Appeal No.1910 of 2007 (O&M) for the plaintiff is to file a suit for partition. Regarding the tube well, the courts below have placed reliance upon the documents to hold that the tube well, which was initially in the name of Sher Chand after his death was transferred in the name of Makhan Ram defendant No.4 and the plaintiff has failed to prove that he ever was enjoying the right of irrigation from the said tube well. The controversy raised is entirely based upon appreciation of evidence led by the parties. The questions of fact cannot be re-determined in a regular second appeal. No question of law, much less a substantial one, has been raised during the course of arguments for consideration of this Court. Hence, no interference is warranted in the present appeal and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE October 13, 2011 rps 8