R.S.A No. 3447 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 3447 of 2009 Decided On : 05.10.2009 Suria and ors. ...Appellants versus Dilwar Khan and anr. ...Respondents CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. S. S . Salar, Advocate, for the appellants. HEMANT GUPTA, J. (ORAL) The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for permanent injunction claiming restraint order against the defendants from interfering with the water channel in use for irrigation of the land of the plaintiff, was dismissed. The parties are co-sharers. It has been found by the Courts below that the joint land has since been partitioned and Sanad Takseem prepared. It has been further found by the learned First Appellate Court that from the Jamabandi, it is clear that in Khasra Nos.1903/907, 1910/910 and 1909/910, no water channel has been recorded. The learned First Appellate Court has also considered civil Court judgment dated 14.08.2004 between R.S.A No. 3447 of 2009 -2- the present defendant and other co-sharers wherein a finding was returned that there was no water channel in existence on the land in dispute. Learned counsel for the defendant has vehemently argued that judgment Exhibit D-1 is not between the parties and therefore, reliance upon the said judgment is not tenable. It is also contended that the Local Commissioner in his report Exhibit P-1 found that their exists water channel, therefore, the findings recorded by the Courts below in respect of existence of water channel is not tenable. During the course of hearing, learned counsel for the appellant has admitted that Sanad Takseem does not record existence of any water channel finalized while partitioning the joint land between the parties. In the absence of any water channel in the mode of partition finalized, the assertion of the plaintiff that there is a water channel has no legs to stand. Still further, the judgment dated 14.08.2004 may not be between the parties and thus, cannot operate as res judicata. But the judgment is in respect of a fact relevant to the suit between the co-sharers. The present defendant was plaintiff in the aforesaid case. A finding has been returned that there was no water channel in existence. Report (Exhibit P-1) of the Local Commissioner has been considered by the learned First Appellate Court. It has been found that the Local Commissioner who has given the report, R.S.A No. 3447 of 2009 -3- does not know about the Khasra nos. of the disputed land and has also stated that the land was joint between the parties till 1987 and the same has been partitioned by Tehsildar. He has stated that the Khal is pucca one but the same is not reflected in the revenue record. Therefore, the report of Local Commissioner is not reliable. Keeping in view the fact that in Sanad Takseem, there is no water channel reflected, the assertion of the plaintiff that there is a water channel which cannot be interrupted by the defendant, is not sustainable. After partition, the rights of the parties are to be regulated in terms of Sanad Takseem and not in respect of the situation which may exist when the land was joint between the parties. In view of the above, I do not find any illegality or irregularity in the judgment and decree passed by the Courts below, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. OCTOBER 05, 2009 (HEMANT GUPTA) shalini JUDGE