RSA No. 1532 of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1532 of 2004 Date of Decision:November 12, 2009 Gurcharn Singh ...........Appellant Versus Lakhvir Singh and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Surinder Dhull, Advocate for the appellant. Mr.J.C.Brar, Advocate and Mr.S.K.Batish, Advocate for respondent No.1 Mr.Monish Bansal,Advocate for the respondent No.2 ** Sabina, J. Plaintiffs filed a suit for permanent injunction. The suit of the plaintiffs was dismissed by the Additional Civil Judge (Senior Division) Phul vide judgment and decree dated 8.10.2003. Aggrieved by the same, the plaintiffs filed an appeal which was allowed by the Additional District Judge, Bathinda vide judgment and decree dated 25.2.2004. Hence, the present appeal by the plaintiffs. The facts of the case, as noticed by the Additional District Judge in paras 2 to 4 of its judgment, read as under:- “2. Briefly stated, the averments contained in the plaint are that the appellants are owners in possession of the land measuring 110 kanals in Khewat Khatauni No.182/334 along with other co- sharers. This land also includes disputed land measuring 14 RSA No. 1532 of 2004 2 kanals comprised in Khara No. 226//10, 11. The defendant- respondent has no right or concern with the disputed land there is also no khal in the disputed property. However, the present respondent intends to pass water through the land of the appellants forcibly by digging a water course in the disputed land. Defendant-respondent was requested to refrain from doing so but he refused. Hence, a necessity arose to file the instant suit. 2. Upon notice, the defendant-respondent appeared and resisted the suit. He filed written statement raising legal objections inter- alia on the grounds that the plaintiffs have no locus-standi to file the present suit; that the suit is bad for mis-joinder and non- joinder of necessary parties; that this court has no jurisdiction to entertain the present suit; that the suit is hit by principle of resjudicata; that plaintiffs have not come to the court with clean hands and suppressed the material facts and as such the defendant is entitled to special costs u/s 35-A CPC. On merits, it is denied that the plaintiffs are owners in possession of the disputed land as well as also existence of any khal in the disputed land. Rather, it is contended that Superintendent Engineer, Ludhiana vide his order dated 17.10.97 has got dug a khal in Khasra No.226//10(7- 0), 11(7-0) and land of defendant is being irrigated through this khal and department of Punjab State Tubewell Corporation has brick-lined the same and the khal is running at the spot. It is further contended that defendant has not dug any khal illegally rather irrigation department has brick lined the same. All other averments have been denied and the defendant accordingly, RSA No. 1532 of 2004 3 prayed for dismissal of the suit with costs. 4. The plaintiffs filed replication reiterated their averments contained in the plaint while denying those as contained in the written statement” On the pleadings of the parties, the following issues were framed by the trial Court:- “1.Whether plaintiffs are in possession of the suit property?OPP 2.Whether plaintiffs are entitled to permanent injunction?OPP 3.Whether plaintiffs have no locus-standi to file the present suit?OPD 4.Whether suit is bad for mis-joinder and non-joinder of necessary party?OPD 5.Whether this court has no jurisdiction to entertain and try the present suit u/s 30G of Northern Canal and Drainage Act?OPD 6.Whether present suit is hit by principles of resjudicata by virtue of judgment of 12.2.2000?OPD 7.Whether defendant is entitled to special costs to the tune of Rs.10,000/- under Section 35-A CPC?OPD 8. Relief.” After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiffs had filed a suit seeking mandatory injunction to the effect that the defendant be restrained from digging a khal (water course) in the land in dispute bearing Khasra No. 226//10(7-0), 11(7-0). RSA No. 1532 of 2004 4 The case of the defendant, on the other hand, is that khal (water course) was already in existence through khasra numbers in dispute and it reached the land of the defendant bearing Khasra No.226//20, 21. In this regard, Exhibit D2 is a relevant document vide which Avtar Singh, Gurcharan Singh (defendant) etc had moved an application for creation of khal (water course) in khasra No. 219//1, 10,11,20,21. The Circle Canal Officer sanctioned the khal (water course) in Khasra number 219//10-11. The said decision was upheld by the Superintending Canal Officer Sirhind vide order dated 17.10.1997. A Local Commissioner was appointed, who after visiting the spot, submitted a report along with site plan. The report of the Local Commissioner, Exhibit DW2/A is to the effect that when he visited the spot, about 10 persons were engaged in raising construction and laying bricks. The defendant was also present at the spot but he refused to sign the presence sheet. Admittedly, the plaintiffs are the owners in possession of the property in dispute bearing khasra No. 226//10- 11 and defendant has got no concern with the same. The water course which was sanctioned by the Canal Authorities was not carved out through khasra numbers in dispute. The said fact is evident from order Exhibit D2. There is nothing on record to suggest that the Canal Authorities had ever allowed the construction of the water course in the khasra numbers in- dispute. In these circumstances, the learned Additional District Judge rightly held that no water course could be constructed in the suit property. In these circumstances, the site plain Exhibit D4 fails to advance the case of the defendant. The water course had been constructed, during the pendency of the suit, although there was no direction by the Canal Authorities. In this regard, no compensation was paid to the plaintiff at the time of construction RSA No. 1532 of 2004 5 of the said water course. In these circumstances, the learned Additional District Judge had rightly decreed the suit of the plaintiff and rightly permitted the defendant to remove/demolish the water course constructed in the land in dispute which belonged to 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 November 12, 2009 arya