RSA No.2275 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2275 of 2008 Date of Decision: September 22, 2009 Bhan Singh ...........Appellant Versus Hardev Singh ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.S.K. Singla, Advocate for the appellant None for the respondent ** Sabina, J. Plaintiff-Hardev Singh filed a suit for permanent prohibitory injunction to the effect that the defendant, his agents, servants and associates be restrained from preventing him from using one electric motor of 5 HP bearing account No. 954/AP-4 in Village Jhuner, Tehsil Malerkotla. The said suit of the plaintiff was decreed with costs by the Additional Civil Judge (Senior Division) Malerkotla vide judgment and decree dated 6.9.2005. Aggrieved by the same, defendant filed an appeal and the same was dismissed by the Additional District Judge(A), FSC Sangrur vide judgment and decree dated 5.12.2007. Hence, the present appeal by the defendant. The case of the parties, as noticed by the learned Additional RSA No.2275 of 2008 (O&M) 2 District Judge, in paras 2 to 4 of its judgment reads as under:- “ 2. The plaintiff/respondent has filed suit for issuance of permanent prohibitory injunction to the effect that the defendant, his agents, servants and associates be restrained from preventing him from using one electric motor of 5 HP bearing a/c No.954/AP-4 in Village Jhuner, Teh. Malerkotla for irrigating his land as he is a co-sharer to the extent of ½ share in the electric motor and all other rights attached to the motor i.e. in the electric connection, security and fixture and fitting of the electricity or any other relief. 3. The case of the plaintiff is that he is the real son of the defendant. Originally, the plaintiff alongwith defendant had constituted a Joint Hindu Family and was joint in mess, residence and agriculture. It is further averred that about 37 years ago, the plaintiff and defendant installed one 5 H.P. electric motor with their common funds in land comprised in khasra No.1814/787/4- 11. After the installation of the said motor of 5 H.P. Electric connection of said motor was obtained by the parties with their joint expenses in the name of defendant being the karta of Joint Hindu Family from PSEB. Moreover, under the rules of PSEB, the electric connection can only be released in the name of a single person and not in the name of group of persons. It is next averred that the electric connection No. 954/AP-4 was allotted. In the month of December, 1989, a dispute arose between the plaintiff and defendant about the ownership and possession of the motor in dispute alongwith its connection and regarding one RSA No.2275 of 2008 (O&M) 3 Tractor bearing No.PBS-9309, which was jointly owned and possessed by the parties. It is further averred that there upon a gathering of the respectables took place and a compromise was arrived between the plaintiff and defendant that the motor in dispute will remain joint between the parties in equal shares and both the parties will be responsible to get the motor repaired and to pay bill of energy of PSEB. Memo of compromise in writing dated 28.12.89 was also reduced in this connection, which was signed by the parties and was attested by the witnesses. It is stated that at the time of memorandum of compromise the account number of motor in dispute was inadvertently typed as 945 instead of 954. The plaintiff has been irrigating his land from the date of installation of the motor and release of the electric connection and also from the date of compromise dated 28.12.1989. Now the defendant is seized of greed and he is threatening the plaintiff that he will not allow him to use the motor in dispute to irrigate his land according to his ½ share in the motor and all other rights attached to it. He also tried to stop the plaintiff from watering his fields a day before filing the suit, but the plaintiff with his timely action foiled the above attempt of the defendant and his associates and requested the defendant number of times not to do so, but he refused to accede the request of the plaintiff, hence, this suit has been filed. 4. In the written statement, it is denied that the parties were joint in mess and that plaintiff along with the defendant had ever constituted any Joint Hindu family or that the motor in dispute RSA No.2275 of 2008 (O&M) 4 was installed with common funds of the parties. In fact, the motor was installed and electric connection was obtained by the defendant exclusively from his own pocket. It is admitted that electric connection of the motor was obtained by the defendant in his name, but it is denied that the electric connection was obtained in the name of defendant being karta of any joint Hindu Family. It is further averred that in the month of December, 1989, a compromise took place between the parties and in pursuance to the said compromise it was settled that the plaintiff and defendant will use the motor in dispute in equal shares and both the parties will be responsible to get the electric motors repaired with equal expenses and will be bound to pay the bill of energy in equal shares and in this regard a memorandum of compromise was reduced into writing on 28.12.1989. It is further averred that the said motor became defective and rendered unservicable. The plaintiff was repeatedly requested to give half amount for repairing the same, but he did not care and got his bore separately and has been using the same exclusively since the last two years and has no interest in the motor in dispute. Having no alternative, the defendant had to instal submersible well spending about Rs.50,000/- in his own land and has been using the same for irrigating his land and the motor in dispute and its bore is lying unservicable and is not at all used by the defendant. Rest of the averments of the plaint are denied and defendant prayed for dismissal of the suit. RSA No.2275 of 2008 (O&M) 5 On the pleadings of the parties, the following issues were framed by the trial Court:- “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. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal is devoid of any merit. Plaintiff had filed a suit seeking permanent injunction to the effect that the defendant be restrained from preventing him from using one electric motor of 5 HP bearing account No. 954/AP/4. In order to substantiate his case, the plaintiff proved on record an agreement between the parties dated 28.12.1989 (Exhibit P1), as per which, the motor connection in dispute was joint between the parties. It was further mentioned in the agreement that the plaintiff would pay a sum of Rs. 600/- to his uncle Amar Singh during his life time. The appellant took up the plea that since the said payment has not been made by the plaintiff, hence, plaintiff was not entitled to get any relief in terms of the agreement. However, the said argument raised by the appellant was discarded by the learned Additional District Judge as there was nothing on record to suggest that Amar Singh during his life time had ever complained to any authority that the plaintiff had failed to make any payment to him in terms of the agreement. Both the Courts below, after appreciating the evidence on record, held that execution of the Exhibit P1 is duly established on record. As per the same both the parties had one half share in the motor connection and was also to bear expenditure to the extent of half share. RSA No.2275 of 2008 (O&M) 6 The case of the appellant further is that the motor in dispute had become unserviceable and the appellant had installed submersible pump by incurring expenditure from his own pocket. Learned District Judge has observed that the suit was filed on 15.9.2000 whereas the articles were purchased for submersible pump on 16.9.2000 . Learned District Judge has further observed that the appellant cleverly tried to install a new submersible pump instead of getting repaired the motor already in existence so that the plaintiff be denied the use of the electric connection in dispute. In these circumstances, the Courts below had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal which would warrant interference by this Court . Accordingly, this appeal is dismissed. ( Sabina ) Judge September 22, 2009 arya