Regular Second Appeal No. 2008 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2008 of 2011(O&M) Date of decision : May 06, 2011 Som Nath ....Appellant versus Jogindro Devi & ors. ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Yogesh Chaudhary, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 5618.C of 2011 For the reasons mentioned in the application which is accompanied by affidavit, delay of 11 days in refiling the appeal is condoned. CM No. 5619.C of 2011 Allowed as prayed for. RSA No. 2008 of 2011 Defendant no. 1 Som Nath who has been unsuccessful in both the courts below has filed the instant second appeal. Plaintiff-respondent no. 1 filed suit against defendant no. 1- Regular Second Appeal No. 2008 of 2011(O&M) -2- appellant and against respondents no. 2 and 3 (Punjab State Electricity Board and its Sub Divisional Officer as defendants no. 2 and 3). The plaintiff alleged that her husband Daulat Ram was co-owner in possession of land measuring 8 kanals comprised of khasra no. 139//9. After death of Daulat Ram, the plaintiff is in possession of the said land. In the year 1997-98, the plaintiff installed a bore in the said land at point 'X' as shown in the site plan. In the year 2003, plaintiff and defendant no. 1 jointly applied for electricity connection for tubewell motor. However, application was moved in the name of defendant no. 1 because by then inheritance mutation of Daulat Ram had not been sanctioned in favour of the plaintiff. The tubewell was installed for irrigating the joint land of the parties and other co-sharers. Defendants no. 2 and 3 granted connection No. AP- 88/245 in the name of defendant no. 1. Plaintiff is in possession of land shown in brown colour in the site plan whereas defendant no. 1 is in possession of land shown in yellow colour in the site plan. Both of them were irrigating their land from the tubewell in question. However, electricity connection was disconnected due to fault of defendant no. 1. Plaintiff requested defendant no. 1 to get it reconnected. However, defendant no. 1 started threatening to shift the connection to some other place. Accordingly, the plaintiff sought permanent injunction restraining the defendant from doing so. During pendency of the suit, connection was shifted to another place and the plaintiff sought mandatory injunction for restoring it to the original place. Defendant no. 1 admitted that tubewell stood installed in khasra Regular Second Appeal No. 2008 of 2011(O&M) -3- no. 139//9 with electricity connection in the name of defendant no. 1. He pleaded that he himself had taken the said connection and installed the tubewell without contribution of even single penny by the plaintiff or by any co-sharer. However, water level of the original place of the tubewell dropped sharply and the tubewell dried. Consequently, defendant no. 1 shifted the connection to khasra no. 139/11 by digging new tubewell bore. Defendant no. 1 also alleged that neither plaintiff nor defendant no. 1 is in exclusive possession of khasra no. 139//9 where the tubewell was initially installed. On the contrary, all co-sharers including the plaintiff and defendant no. 1 are in joint possession of the land of said khasra number. The other plaint averments were broadly controverted. Defendants no. 2 and 3 pleaded that they have shifted the electricity connection on the asking of defendant no. 1 in whose name the connection stood. Learned Additional Civil Judge (Senior Division), Balachaur vide judgment and decree dated 2.6.2010 decreed the plaintiff's suit. First appeal preferred by defendant no. 1 has been dismissed by learned District Judge, Shaheed Bhagat Singh Nagar vide judgment and decree dated 17.12.2010. Feeling aggrieved, defendant no. 1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that water at the original place of the tubewell had dried and therefore, the Regular Second Appeal No. 2008 of 2011(O&M) -4- plaintiff installed new tubewell at the new place by spending huge amount and the tubewell is, therefore, not liable to be restored at the original place. The contention cannot be accepted. There is no cogent evidence to prove that water at the original place of the tubewell had dried. There is concurrent finding by both the courts to this effect. Moreover, lower appellate court has taken care of this grievance of defendant no. 1-appellant by directing that in case the tubewell bore at the original place at the existing level does not work, then it will be the duty of the plaintiff to dig the bore deeper so that it becomes in working condition. Consequently, defendant no. 1-appellant is not left with any grievance on this count. Learned counsel for the appellant also contended that tubewell was installed exclusively by the appellant with his own funds. This contention is untenable. It is admitted case that tubewell was installed in khasra no. 139//9 jointly owned by plaintiff and defendant no. 1 and other co-sharers. It is also admitted case that both were using the said tubewell to irrigate land in their possession. Consequently, it cannot be said that it was exclusive tubewell of defendant no. 1. Moreover, defendant no. 1 has himself pleaded that land of khasra no. 139//9 where the tubewell was originally installed was in possession of all the co-sharers. It would also depict that the tubewell belong to all the co-sharers who were also admittedly using it. Consequently, defendant no. 1 alone has no right to shift the tubewell to a different place. It would not be out of place to notice herein with some significance that admittedly level of the land of the plaintiff is higher than Regular Second Appeal No. 2008 of 2011(O&M) -5- the level of the land where the tubewell has now been installed by defendant no. 1. Consequently, it has become difficult for the plaintiff to irrigate her land from the tubewell at the existing side. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding by both the courts below in favour of plaintiff- respondent no. 1 is fully justified by the evidence on record and does not suffer from any illegality or perversity nor it is based on misreading or misappreciation of evidence so as to call for interference in exercise of second appellate jurisdiction. No question of law much less substantial question of law arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed in limine being devoid of merit. ( L.N. Mittal ) May 06, 2011 Judge 'dalbir'