R.S.A. No. 1755 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1755 of 2009 Date of decision:-21.11.2011 Rajender ...Appellant Versus Ishwar and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. G.K. Chawla, Advocate for the appellant. Mr. Amit Jain, Advocate for the respondents. RITU BAHRI J. Challenge is to the judgment and decree dated 25.11.2008 passed by the Additional District Judge, Gurgaon and dated 26.8.2008 passed by the Additional Civil Judge (Senior Division) Gurgaon whereby suit of the plaintiff has been dismissed. The dispute is between sons of Kirorimal. Plaintiff- Rajinder filed a suit that he alongwith his mother and sisters was co-owner and cosharer in the land (under construction raised thereon) and tubewell bearing electric connection No. DAG-81 prescribed in para No.1 of the plaint. Tubewell connection is recorded in the name of Shri Kirorimal, father of the parties, who has since died. R.S.A. No. 1755 of 2009 -2- On notice, the defendants filed the written statement. Their stand was that there was an old residential house within the abadi deh of the Village Tatarpur consisting of two pucca rooms, one varandah, Sahan and Baithak. There are also four rooms and one varandah which is constructed in the suit land. The parties of the suit mutually partitioned the aforesaid houses. The house within the abadi deh was under the possession of the plaintiff and the other one was in possession of the defendants. Defendant No.1 had got installed a separate submersible tubewell on his own expenses and is irrigating his fields. He has shifted the electric connection bearing No. DAG-81 and is regularly paying electricity charges. He denied that the plaintiff is co-sharer and co-owner in the said tubewell. He denied that both the parties were paying the electricity bills. From the pleadings of the parties, following issues were framed on 23.2.2005 :- “1. Whether the plaintiff is entitled to the injunction as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 5. Relief.” The trial Court has held that the plaintiff was not entitled to the injunction as prayed for. Before the trial Court, it R.S.A. No. 1755 of 2009 -3- was not disputed by the plaintiff that he was residing in the village in abadi deh and the house situated near the tubewell came to the defendants' share and they were residing therein. DW1 Ishwar admitted that the land was joint and has not been partitioned. As per the mutual understanding the plaintiff and defendants are in separate use and occupation of the properties for convenience and for better use of the same. The arrangement has been arrived at between the parties and until and unless the properties are legally partitioned, they have no right to disturb each other. As far as the tubewell is concerned, the case of the defendants has been accepted by the trial Court that earlier tubewell installed during the lifetime of their father failed as there was no water in the well. This fact has been admitted by the plaintiff in cross-examination. He has stated that earlier the water level was 55-56 feet and it has gone down to 105 feet. He admitted that the electricity bills were not being paid by the defendants. In view of the above fact the trial Court returned the finding on issue No.1 in favour of defendants and against the plaintiff. Issue Nos.2 to 4 were not pressed by the defendants. The Appellate Court has affirmed the findings arrived at by the trial Court that the co-sharers were living in separate accommodations even though no partition had taken place. On the admission made by the plaintiff that the electricity bills were being paid by the defendants, the finding recorded by the trial R.S.A. No. 1755 of 2009 -4- Court that the plaintiff is not jointly using the tubewell, has been affirmed by the Appellate Court. It is settled law by the Supreme Court that no injunction can be granted by a Court restraining co- owners from repairing a well or drawing water from it. In Bachan Singh versus Swaran Singh 2000(2) PLJ 143 a Co- ordinate Bench of this Court has held that no injunction can be granted against the co-sharer, who is in possession of the joint property. No substantial question of law arises for adjudication by this Court, the regular second appeal is dismissed. 21.11.2011 ( RITU BAHRI ) Vijay Asija JUDGE