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MAJOR SINGH versus SAHIB SINGH & ORS

High Court of Punjab and Haryana, Chandigarh

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Major Singh v. Sahib Singh & Ors - CR-4079-2004 [2006] RD-P&H 4310 (18 July 2006)

C.R.No.4079 of 2004 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Civil Revision No.4079 of 2004

Date of Decision: July 24, 2006

Major Singh ........Petitioner

v.

Sahib Singh and others ........Respondents CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.Jaskirat Singh Sidhu, Advocate for the petitioner.

Mr.Chanan Singh, Advocate

for respondents 1 and 2.

***

P.S.PATWALIA, J.

The present revision petition is directed against the order passed by the learned Civil Judge (Jr.Division), Ludhiana allowing an application filed by the respondent-plaintiffs under Order 39 Rules 1 and 2 CPC and the order passed by the learned Additional District Judge, Ludhiana dismissing the appeal preferred by the petitioner-defendant No.1 against the aforementioned order.

The claim of Sahib Singh and another, the respondents in the present revision petition, in the suit filed by them is that they are owners of share of joint land which is not yet partitioned and there is a motor therein which is also joint. It was installed in the name of Mal Singh father of the petitioner-defendants and the father of plaintiff Nikka Singh also contributed Rs.5,000/-. For joint use of the motor a writing was executed on 4.7.1990. Nikka Singh died on 18.2.2004 and thereafter defendant No.1 who is petitioner in this petition is threatening to C.R.No.4079 of 2004 [2]

interfere with the use of water by the plaintiffs from the said motor. The matter went to Panchayat where the defendants admitted the right of the plaintiff but thereafter again resiled.

In the reply, the defendants firstly stated that the jurisdiction is of the civil Court at Jagraon and the present Court had no jurisdiction. They further stated that the motor belonged to the defendants exclusively and it was installed in August, 2003. They stated that possession and cultivation of parties is separate and land was partitioned by their forefathers decades ago. The old tubewell was not functioning and the present motor is new one installed by the defendants.

The trial Court found that in the record of rights, the land of the parties was still joint and was not partitioned as per law by meets and joints. It also concluded on the basis of other documents on the record that the motor was in fact joint and the land of the plaintiffs was being cultivated by the water drawn from the said motor. Therefore, the defendants were restrained from stopping the plaintiffs from drawing their water from the motor. The relevant observations of the trial Court are as hereunder:-

"5. Writing of 4.7.90 is on the file. At the stage of injunction documents are to be considered from their face value as they are.

The document is acknowledges that the motor is joint between the parties since 1980 when Nikka Singh paid Rs.5000/-. Legal heirs were to remain binding by this agreement. Bills are produced by both the parties. In the record of rights the land is still joint and is not partitioned as per law by meets and bounds. It is settled law that till the land is partitioned lawfully, irrigation facility kin such land remain joint. As per law the motor in question has to be considered joint of the parties. Argument of defendants that the motor was installed by them recently and old motor is not working did not sustain because number of the connection is the same. If old motor C.R.No.4079 of 2004 [3]

stopped working and the same connection was shifted at new place the same does not mean that the motor is new. Question of jurisdiction raised by defendants cannot be seen at this stage because the same depends upon evidence. The photographs confirm that Khals/Water Channel going to the land of plaintiff from the motor were in existence. DDR No.24 of 5.5.04 P.S. Sadhar also confirm the claim of plaintiff that motor was joint and the water was being used by the plaintiff also. The resolution of Co-op Agriculture Multi purpose Society dt. 12.5.04 also confirms that Tavian were taken by defendants on rent but are not returned. The same are in the Police Station due to dispute between the parties. Dispute is detailed in the DDR referred above of 5.5.04 confirm that the motor is joint. The same is correct as per law also because if parties are in separate cultivation for connivance the same is not considered partition in the eyes of law. In the light of the fact that as per law as well as per documents and circumstances on record the motor is joint between the parties and the same shall remain joint till partition as per law.

Hence the defendants are restrained stopping the plaintiffs from using the water from this motor for irrigation of their portion.

Plaintiffs are free to make the water channel for irrigation of their portion and defendants are restrained from interfering with the same also. This will however be subject to contribution in the monthly bill and further repair equally by plaintiffs. The application is accordingly disposed of."

In appeal, the lower Appellate Court again examined the matter in detail. The findings recorded by the lower Appellate Court concurring with the findings of the trial Court is as hereunder:- "A perusal of the copy of the jamabandi for the year 2001- C.R.No.4079 of 2004 [4]

2002 in respect of the land measuring 38K-12M, would go to show that Nikka Singh was the owner of share in the same and the other share is recorded to be owned by Major singh son of Mal Singh for share and Iqbal Singh son of Major singh son of Mal Singh for share. Vide mutation No.9520, the inheritance for Nikka Singh is recorded to have been sanctioned in favour of the plaintiffs Sahib Singh and Harjinder Singh in equal shares. There is nothing on record, from which, it could be said that the parties are cultivating the land separately. The land is recorded to be in joint possession of the co-owners. Even if the fresh bore has been installed in the land comprised of other than khasra No.29//10/1, it does not mean that the plaintiffs have lost their right to irrigate their land from the same.

The writing dated 4.7.90 had been executed by the two brothers namely Mal Singh and Nikka Singh so as to irrigate their land jointly from the motor of 5 H.P. Having electric connection No.SV-272.

Even if, for the sake of arguments, it is accepted that the plaintiffs have not either contributed in the installation of the bore and for the purchase of the motor installed on the new bore, even then they have got the right to irrigate their land because the electric connection is still joint and under the agreement dated 4.7.90, they have got a right to irrigate their land from the same. It is for the defendants to recover the amount from the plaintiffs if they think that the plaintiffs have not contributed the same in the installation of the bore and purchasing of the electric motor having re-course to the law. They cannot restrain the plaintiffs from irrigating their land with the help of the new bore, which has been installed in the joint land. So long as the land is joint and the electric connection is joint, the plaintiffs have got a right to irrigate their land from the same and they cannot C.R.No.4079 of 2004 [5]

be compelled to install their fresh bore. As per the agreement dated 4.7.90, the plaintiffs are also entitled to take the water from the tubewell to their land by digging a khal through the land of the defendants. The defendants are also entitled to make a use of the land of the plaintiffs for the sake of irrigating their land from the tubewell. Therefore, it would appear that the trial court has passed the impugned order on the basis of the material produced before it.." Having gone through the facts of the case, I find no reason to disturb the findings recorded by the Courts below of assessment of documents before them for the purpose of deciding the application under Order 39 Rules 1 and 2 CPC.

Mr.Sidhu learned counsel for the petitioner vehemently contended that the trial Court had erred in issuing a direction restraining the defendants from stopping the plaintiffs from using the water from the motor in dispute. He argued that no such relief could have been granted by the trial Court. I am not impressed with this argument. Once the Courts have come to the prima facie conclusion that the land was joint and also that the plaintiffs had been taking water from the common motor for irrigating their land, then the direction given by the trial Court is fully justified.

Mr.Sidhu further contends that the learned Civil Judge (Jr.Division), Ludhiana did not have jurisdiction to decide the application, rather the jurisdiction was with the civil Court at Jagraon. He states that now the suit has in fact been transferred by the learned District Judge, Ludhiana to be tried at Jagraon. I am not inclined to set aside the order passed by the trial Court on this objection. Firstly, the said order has been examined and affirmed by the learned Additional District Judge, Ludhiana and both Ludhiana and Jagraon are under the jurisdiction of District Judge, Ludhiana. Once the matter has been examined by the learned Additional District Judge on the basis of the material placed before him and now also by this Court, I find no merit in this argument raised by the learned counsel as C.R.No.4079 of 2004 [6]

well.

In view of what has been stated hereinabove, I find no ground to interfere in the orders passed by the Courts below. The revision petition is accordingly dismissed. It is, however, clarified that any observation made herein is only for the purposes of deciding the ad interim injunction application and shall have no bearing on the decision of the main suit.

`

( P.S.PATWALIA )

July 24th, 2006. JUDGE

RC


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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