RSA No.1135 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1135 of 2009 (O&M) Date of decision 17.8.2011. Angrej Kaur and others. ...... Appellants. versus Bhag Singh and others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Sanjeev Manrai, Advocate for the appellants. Mr. Vikas Singh , Advocate for respondent No.1. Mr. H.S.Thiara, Advocate for respondent Nos.2 and 3. K.C.PURI . J. Legal heirs of plaintiff Gurnam Singh have challenged the judgment dated 10.12.2008 passed by Ms. Sukhwinder Kaur, Additional District Judge, Patiala vide which the appeal preferred by them against the judgment and decree dated 9.10.2007 passed by Shri S.S.Panesar, Additional Civil Judge (Senior Division), Patiala, was dismissed. RSA No.1135 of 2009 2 2. Gurnam Singh filed suit for declaration and permanent injunction with the allegation that he is owner in possession of tube-well motor connection bearing Account No.BH-8/26 of 10H.P. installed previously in Khasra No.12 now in Khasra No.11 of Rectangle No.14 situated in village Sampurangarh tehsil and District Patiala. It is alleged that plaintiff and defendant No.1 were co-sharers in Khewat No.39 Khatauni No.91 situated in village Sampurangarh Tehsil and District Patiala but actually the land has already been partitioned between the cosharers and every cosharer is in exclusive possession of the land as per their share. The plaintiff is in possession of his land including khasra No.11 Rectangle No.14. Previously, motor connection along with tube well was installed/running in Khasra No.12 of Rect.No.14. The same is now running in Khasra No.14/11 and said tube-well motor connection fell to the share of the plaintiff in the said family partition and the plaintiff has been using the same for the last 30 years and depositing the electricity bills with the Electricity Board since the same are exempted by the Government. The receipts and pass book are in his possession. Another tube-well motor connection running the electric motor has fallen to the share of defendant No.1 and he is using the same. Earlier said motor connection was of 7.5 HP and the plaintiff got the load extended to 10 HP by depositing the amount with defendant Nos.2 and 3. Plaintiff remained in good faith that defendant No.1 will get the motor connection transferred as defendant No.2 assured to get the same transferred in the name of plaintiff but he refused to do so. Hence the suit. RSA No.1135 of 2009 3 3. On notice, defendants appeared and contested the suit by filing separate written statements. Defendant No.1 pleaded that suit land is still joint amongst the cosharers as is evident from the entries of jamabandi for the year 1997-98 which has got the presumption of truth and the same is not challenged even in the present suit. The plaintiff is in possession of the suit land as cosharer and not exclusive owner. The motor connection along with tube well were installed in the land being run by the contested defendants which was purchased by him and plaintiff was nothing to do with the same. The entire expenses of installation of the tube well and motor connection were borne by the contesting defendants and the bills/receipts of the firm and electricity department are in the name of the replying defendant. The story of family partition of joint and parties is mere concoction and baseless. There is no question of falling tube-well in dispute in the share of plaintiff when no partition has taken place. The load of the motor connection was got increased at the cost and expenses of the replying defendant from 7.5 to 10 H.P. The plaintiff did not incur any amount for extending the load of disputed electric tube-well connection. The defendant got shifted the connection in another Khasra No.4/23 comprising khewat/khata No.49248 situated at village Budhmor. The shifting charges worth Rs.12,932/- were paid by the answering defendant vide receipt dated 12.6.2002 and 9.8.2002. The other averments made in the plaint were denied. 4. Electricity Board filed separate written statement in which it is mentioned that electric connection has been transferred as per rules after compliance of all the formalities. The other allegations of the plaint were denied. RSA No.1135 of 2009 4 5. From the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff is owner in possession of electric connection in dispute ?OPP 2. Whether the plaintiff is entitled to declaration as prayed for ?OPP 3. Whether the defendant has no right to transfer the connection in dispute ?OPP 4. Whether the plaintiff is entitled to injunction as prayed for ? OPP 5. Relief. 6. The parties have led their respective evidence on the aforesaid issues. The learned trial Court has taken up issue Nos.1 to 4 together and returned finding on all these issues against plaintiffs and consequently dismissed the suit of the plaintiff with costs vide judgment and decree dated 9.10.2007. 7. Aggrieved against the judgment and decree dated 9.10.2007 passed by Shri S.S.Panesar, PCS, Additional Civil Judge (Senior Division), Patiala, the plaintiff preferred the First Appeal. The learned Additional District Judge, Patiala vide judgment and decree dated 10.12.2008 after re- appraisal of the evidence dismissed the appeal preferred by the legal heirs of Gurnam Singh. 8. Still not satisfied with the above said judgment, the legal heirs of Gurnam Singh have preferred the regular second appeal. 9. The appellants in paragraph No.8 of the grounds of appeal has mentioned that following substantial question of law has arisen :- a) Whether in an unpartitioned suit property which is in joint RSA No.1135 of 2009 5 ownership of appellants and defendant no.1 whether the court can order that respondent no.1 is the owner of the tube-well connection and within his exclusive rights to get the same transferred to some other village ? 10. The learned counsel for the appellants has submitted that plaintiff-appellants is the joint owner of the property. The connection in question was installed in the land possessed by the plaintiff. The electricity bills were being paid by the plaintiff which have been produced on the record. The stand taken by the defendants that electricity connection has been transferred to another place is wrong and the same is still in existence at the spot. Every co-sharer is entitled to each inch of joint land till partitioned. The electric connection is also related to the joint land and in view of authority Bhartu vs Ram Sarup 1981 P.L.J. Page 204 (Full Bench), the electric connection although in the name of defendant Bhag Singh but still the appellants has a right to use the said connection. The stand taken by the defendants that the same has been transferred is wrong on the face of it. The Court cannot declare respondent No.1 to the owner of the tube well connection and also cannot give the exclusive right to transfer the same. The story of transfer of the connection is wrong. 11. Counsel for the respondents have supported the judgments and decrees of the Courts below. 12. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and have gone through the records of the case. 13. The stand taken by the original plaintiff Gurnam Singh in the plaint is that there is a family settlement between the plaintiff and the RSA No.1135 of 2009 6 defendants. The tube-well has fallen to the share of plaintiff and defendant has no concern with the same and that he has no right to get the same transferred. Both the Courts below have returned a categoric finding that plaintiff has failed to prove about any family settlement or falling of the electric connection in the share of original plaintiff-Gurnam Singh. That being a finding of fact cannot be interfered in the regular second appeal. Now realising the said fact, the appellants has taken a contradictory stand to the pleading that since the plaintiff is a cosharer in the suit land and as such he has a right to use the connection fitted in the joint land exclusively possessed by the plaintiff. There is concurrent finding of fact recorded by the Courts below that electric connection was released in the name of the defendant and the same has already been shifted from village Sampurangarh to village Budhmor. The charges for change of electric connection were deposited by the defendants. It has been further held by both the Courts below that the plaintiff is neither owner nor in possession of the electric motor rather it has already been shifted. So, in these circumstances the plaintiff has got no legal right in the electric connection which stood already transferred to another village at the choice of the defendants. The stand taken by the appellants for the first time in the Regular Second Appeal that since the land is joint and as such he has right to use the connection cannot be accepted as the said assertions are against the pleadings of the plaintiffs. 14. So far as authority Bhartu's case (supra) is concerned that authority is not helpful to the appellants. The ratio of the said judgment is that each cosharer is entitled to each parcel of the land. A sale by a cosharer RSA No.1135 of 2009 7 of specific khasra number amounts to sale of his share. There is no dispute to that proposition of law laid down by the Full Bench of this Court. However, the dispute is that plaintiff has no connection in the meter tube well land and electric connection. Both the Courts below have returned the finding in negative against the plaintiff. So, that being a finding of fact, no interference can be ordered in the regular second appeal. 15. Therefore, the substantial questions of law raised by the appellants do not exist in the present case. 16. Consequently, the appeal is without any merit and the same stands dismissed. 17. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 17 , 2011 sv