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2001 DIGILAW 167 (PNJ)

Darshan Singh v. Raghbir Singh

2001-01-31

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This is a Civil Revision and has been directed against the order dated 10.9.1999 passed by the Court of District Judge, Hoshiarpur, who, allowed the appeal of the plaintiff-respondents, under Order 43 Rule 1 C.P.C. by setting aside the order dated 5.5.1999, passed by the Court of Civil Judge (Junior Division), Dasuya, who, had dismissed the application of the plaintiff-respondents under Order 39 Rules 1 and 2 C.P.C. 2. The facts in this case are not much in dispute. S/Shri Raghbir Singh and Chhajju Ram, filed a suit for declaration to the effect that plaintiff No. 1, Raghubir Singh, is entitled to 1/3rd share as owner and Chajju Ram, plaintiff No. 2, is entitled to 1/4th share in the electric motor of 3 H.P. and Tubwell kotha of connection No. T/3-88, situated in village Mehtabpur, Tehsil Mukerian and they are entitled to irrigate the land of Chhajju Ram plaintiff No. 1 measuring 6 kanals 1 marlas, Khewat No. 889, Khatauni No. 1054, Khasra Nos. 106/17/2(3-1), 24/2(3-0) and land of plaintiff No. 2 Shri Raghubir Singh measuring 20 Kanals 1 Marla Khewat No. 189, Khatauni No. 208 Khasra No. 107//22/2(6-16), Khewat No. 522, Khatauni No. 643, Khasra Nos. 107//1717(4-6), 24(2-0), 18/1(6-19), situated in village Mehtabpur Tehsil Mukerian, through this tubewell and the plaintiffs also sought a permanent injunction restraining the defendants No. 1 and 2 namely Shri Narain Singh and Shri Darshan Singh from causing any obstruction in the irrigation of their land through the aforesaid tubewell. Plaintiffs further prayed that directions be given to the SDO, Punjab State Electricity Board, Bhangala Tehsil Mukerian, i.e. defendant No. 3, not to transfer the electric connection in favour of Darshan Singh, defendant No. 2, who, is the present petitioner. 3. Some facts cane be noticed in the following manner. Shri Narain Singh was the original owner of this land. The area of the land was 46 Kanals. He sold 20 Kanals 1 Marla of land out of this chak to Shri Raghubir Singh vide sale deed dated 22.5.1990. He further sold 6 Kanals and 1 Marla of land to plaintiff No. 2 Shri Chhajju Ram vide sale deeds dated 3.9.1992 and 3.11.1992. The area of the land was 46 Kanals. He sold 20 Kanals 1 Marla of land out of this chak to Shri Raghubir Singh vide sale deed dated 22.5.1990. He further sold 6 Kanals and 1 Marla of land to plaintiff No. 2 Shri Chhajju Ram vide sale deeds dated 3.9.1992 and 3.11.1992. He further sold the land measuring 20 Kanals to defendant No. 2 Shri Darshan Singh (petitioner) vide sale deed dated 8.1.1999 along with electric connection, motor, tubewell and its kotha, installed in Khasra No. 106/26, which was purchased by defendant No. 2. 4. The case set up by the plaintiffs in the trial Court was that they purchased the land measuring 20 kanals and 1 marla from the previous owner Shri Narain Singh and since 1990/1992 they had been irrigating their land through the tubewell installed in Khasra No. 106/25 which has been purchased by the defendants No. 2 and with this purchase dated 8.1.1999 their rights of irrigation cannot be defeated. 5. On the contrary, the case set up by the defendant Darshan Singh is that vide sale deed dated 8.1.1999 all rights, title and interest in the tubewell kotha has been transferred to him and the Electricity Board has also transferred the electric connection in his name. There is no document prima in favour of the plaintiffs to show that they purchased the irrigation rights from Shri Narain Singh, therefore, they are not entitled to any relief of temporary injunction till the disposal of the suit. 6. The application under Order 39 Rules 1 and 2 C.P.C. was dismissed by the trial Court vide order dated 5.5.1999 for the reasons given in para No. 4 of the order, which are reproduced as under :- "I have heard the learned Counsel for the parties and perused the documents placed on file very minutely. The plaintiffs have filed this application under order 39 Rules 1 and 2 C.P.C. for restraining the defendant No. 1 and 2 from using the connection in dispute and tubewell for the purpose of irrigating their fields. The plaintiffs have stated that they have purchased some land from the defendant No. 1 and defendant No. 1 has given in writing that plaintiffs are entitled to irrigate their land through electric connection T-3/88 situated at village Mehtabpur tehsil Mukerian. The plaintiffs have stated that they have purchased some land from the defendant No. 1 and defendant No. 1 has given in writing that plaintiffs are entitled to irrigate their land through electric connection T-3/88 situated at village Mehtabpur tehsil Mukerian. The plaintiffs have also stated that they are using this facility since long time from the time of purchase of land fully detailed and described in the head note of the plaint. The plaintiffs have further stated that defendant No. 1 executed agreement dated 11.6.1990 in favour of plaintiff No. 1 in which he has admitted that he has received Rs. 5333/- and plaintiff No. 1 has become owner of this connection to the extent of 1/3 share. Similarly defendant No. 1 has sold 1/4 share in the electric tubewell/connection to plaintiff No. 2 and has mentioned it in the registered sale deed dated 3.11.1992 executed by defendant No. 1 in favour of plaintiff No. 2. On the other hand, the defendant has stated that defendant No. 1 has not sold any share in electric connection/tubewell connection to the plaintiffs. The defendant No. 2 has stated that he has purchased land and connection from the defendant No. 1 and he has got the electric connection transferred in his name in the record of PSEB. From the documents placed on file it is clear that electric connection in dispute has been transferred in the name of defendant No. 2. The plaintiffs have also not denied that land in which electric connection/tubewell in dispute is situated has also been purchased by defendant No. 2 from the defendant No. 1. As the tubewell connection has already been transferred in the name of defendant No. 2 in the record of PSEB, so, at this stage no ground for grant of injunction in favour of the plaintiffs is made out. So the application under Order 39 Rules 1 and 2 read with Section 151 C.P.C is dismissed. However, this order will not affect the merits of the case." 7. So the application under Order 39 Rules 1 and 2 read with Section 151 C.P.C is dismissed. However, this order will not affect the merits of the case." 7. Not satisfied with the order dated 5.5.1999, the plaintiff-respondents filed an appeal under Order 43 Rule 1 C.P.C. in the Court of learned District Judge, Hoshiarpur, who for the reasons given in paras No. 7 to 10 of the order dated 10.9.1999 reversed the order of the learned trial Court and allowed the application under Order 39 Rules 1 and 2 C.P.C. and directed the defendant- petitioner to allow the plaintiff-respondents to irrigate their land through the tubewell installed in Khasra No. 106/25. The reasons given by the first appellate Court in paras No. 7 to 11 of order dated 10.9.1999, are reproduced as under :- "7. I have heard the counsel for the parties. The admitted facts of the case are that plaintiff No. 1 had purchased land measuring 21 Marlas on 11.6.1990 and plaintiff No. 2 has purchased land measuring 8 Kanal 1 Marla on 3.11.1992 from defendant No. 1. On 8.1.1999 defendant No. 1 sold land measuring 3 Kanals 17 Marlas to defendant No. 2. Defendant No. 1 also executed a written agreement and affidavits of the purchasers. The plaintiffs had a right to irrigate the land purchased by them from the common tubewell. The sale of land to plaintiffs No. 1 and 2 was prior in time and the vendor, defendant No. 1, could transfer only those rights which were left to him after selling the land to the plaintiffs 1 and 2. The perusal of the sale deeds shows that defendant No. 1 had sold the joint rights in the land in dispute and also a right to irrigate the land purchased by the plaintiffs. In the sale deed dated 3.11.1992, it is mentioned that the vendor was selling joint-ship rights and also right to irrigate the land from the motor of the defendant No. 1. 8. The learned Counsel for the respondent has contended that mere agreement of sale does not confer any tile on the plaintiffs and even if defendant No. 1 had agreed to sell the irrigation rights vide a separate agreement, that is of no consequences. Reliance has been placed upon Man Singh v. H.S. Kohli, 1997(1) PLR 643. 8. The learned Counsel for the respondent has contended that mere agreement of sale does not confer any tile on the plaintiffs and even if defendant No. 1 had agreed to sell the irrigation rights vide a separate agreement, that is of no consequences. Reliance has been placed upon Man Singh v. H.S. Kohli, 1997(1) PLR 643. It has been held in this case that in a suit for specific performance alienation of the land cannot be stopped on the basis of an agreement of sale in favour of the plaintiffs as the agreement does not confer any tile in the plaintiff. In the present case even if the agreement is ignored, the vendor, defendant No. 1, had already sold the irrigation rights in the suit land to the plaintiffs. 9. The sale deed in favour of defendant No. 2 also does not talk of selling of electric connection to the defendant No. 2, but it only recites that the defendant No. 1 had sold electric motor and not the electric connection. Electric connection is a separate property from the electric motor. Therefore, for all purposes the electric connection remains joint of the parties. The only plea taken by the respondent and the trial Court is that the electric connection has been changed in the name of defendant No. 2 by the Electricity Board. Mere change in the name of the electric connection does not affect the rights of the parties in the joint tubewell as held in Om Parkash v. Param Ram, 1997(1) Latest Judicial Reports 22. Whether electric connection was validly or invalidly changed in the name of defendant No. 2 is a question of evidence, but prima facie by mere change of electric connection in the name of defendant No. 2 he cannot deny the right of the irrigation to the plaintiffs from the said tubewell connection. There was a prima facie case in favour of the plaintiffs in view of the law settled down and the discussion made above. Therefore, the application has been wrongly rejected. 10. The Electricity Board is a party to the suit and even if the Electricity Board had made change in the electric connection, it cannot stop the use of motor from the tubewell to the plaintiffs on the ground that it amounts to sale of water by the defendant No. 2." 8. Therefore, the application has been wrongly rejected. 10. The Electricity Board is a party to the suit and even if the Electricity Board had made change in the electric connection, it cannot stop the use of motor from the tubewell to the plaintiffs on the ground that it amounts to sale of water by the defendant No. 2." 8. This time defendant No. 2, Shri Darshan Singh, is not satisfied with the order dated 10.9.1999 and he has filed the present revision. 9. I have heard Shri R.K. Joshi, learned Counsel appearing on behalf of petitioner and Shri Rajive Bhalla, learned Counsel appearing on behalf of the respondents 1 and 2 and with their assistance have gone through the record of the case. 10. The learned Counsel for the petitioner submitted that in the sale deed dated 22.5.1990 executed by Shri Narain Singh in favour of Shri Raghubir Singh and in the sale deeds dated 3.9.1992 and 3.11.1992 executed by Shri Narain Singh in favour of Chhajju Ram, there is no recital whatsoever to suggest state Shri Narain Singh has any right, title or interest in the tubewell, installed in Killa No. 106/25, which was purchased by Darshan Singh petitioner, vide sale deed dated 8.1.1999. He submitted that the Kotha is a fixture and according to law of the Transfer of Property Act all rights, title and interest in the tubewell kotha including the electric connection vests in Darshan Singh. Moreover, there is a specific recital in the sale deed dated 8.1.1999 for the transfer of a right, title or interest in the tubewell kotha and the electric connection in favour of the petitioner. It was also the contention of the Shri Joshi that the petitioner is a bona fide purchaser. He has purchased all incumbent rights in the property and the documents relied upon by the first appellate Court in favour of the plaintiffs-respondents are forged and fabricated and they do not affect adversely the rights of the petitioner-defendant No. 1 11. On the contrary, learned Counsel appearing on behalf of the respondents submitted that in the sale deed dated 3.11.1992 executed by Shri Narain Singh, right of irrigation has been given to Shri Chhajju Ram with respect to the area purchased by him. On the contrary, learned Counsel appearing on behalf of the respondents submitted that in the sale deed dated 3.11.1992 executed by Shri Narain Singh, right of irrigation has been given to Shri Chhajju Ram with respect to the area purchased by him. Moreover, Shri Narain Singh had executed two agreements on 11.6.1990 and 3.9.1992 vide which he has given the rights of irrigation to the plaintiffs-respondents for consideration. Moreover, Shri Narain Singh has also executed an affidavit dated 26.6.1995. These documents are prior in time. If some rights, title or interest by way of irrigation has been transferred to the plaintiffs prior to the sale deed dated 8.1.1999, that recital will not bind the rights of the plaintiff-respondents who purchased the land earlier to the sale deed executed by Shri Narain Singh in favour of the petitioner. 12. It was also submitted by Shri Bhalla that the balance of convenience lies in favour of the plaintiffs-respondents as they are irrigating their land since 1990/1992 and if any obstruction is caused by the defendant-petitioner, at this juncture, in the irrigation, their crops are likely to be withered away. 13. The learned Counsel Shri Joshi by meeting the submission of his rival, stated at the bar that respondents have their own source of irrigation and no prejudice is likely to be caused to them. Rather a prejudice would be caused to the petitioner if any right is created in favour of the plaintiff- respondents by granting the injunction, as granted by the first appellate Court. It was also submitted by Shri Joshi that the High Court will be slow in interfering in the discretion exercised by the courts below, if that discretion has been properly used in granting or not granting the stay order under Order 39 Rules 1 and 2 C.P.C. 14. After considering the rival contentions of the parties, I am of the considered opinion that this revision is totally devoid of any merit. It is the basic principle of law that before granting any temporary injunction the Court has to see whether there is a prima facie case; whether the plaintiff will suffer irreparable injury and whether the balance of convenience lies in his favour or not. The sale deeds in favour of the plaintiffs-respondents are of the year 1990/1992. It is the basic principle of law that before granting any temporary injunction the Court has to see whether there is a prima facie case; whether the plaintiff will suffer irreparable injury and whether the balance of convenience lies in his favour or not. The sale deeds in favour of the plaintiffs-respondents are of the year 1990/1992. It is the specific case of the respondents that they had been irrigating their land since 1990 and 1992 and moreover, Narain Singh, the previous owner, had executed two agreements on 11.6.1990 and 3.9.1992 and had transferred the irrigation rights in favour or the plaintiffs-respondents. Therefore, any recital made by Shri Narain Singh, in the sale deed of Darshan Singh on 8.1.1999, is not binding upon the plaintiffs-respondents. 15. In these circumstances, there is a fair question which requires to be adjudicated. If the plaintiff-respondents are not permitted to irrigate their land, it will cause more hardship to them than that of the petitioner, Shri Darshan Singh. There is no dispute that the tubewell kotha is situated in Khasra No. 106/25, which has been purchased by the petitioner but if any right is being enjoyed by the plaintiffs/respondents prior to the sale deed dated 8.1.1999, it cannot be defeated by the defendant-petitioner. 16. I do not dispute with the preposition of law when Shri Joshi has contended that the High Court would be slow in interfering in the discretion of the Courts below if the discretion has been properly exercised. In my opinion that first appellate Court has rightly appreciated the contentions of the parties and has rightly allowed the application under Order 39 Rules 1 and 2 C.P.C. and, therefore, the High Court should be slow in interfering in this order unless there is a miscarriage of justice proved on fact. 17. Resultantly, I do not see any merit in this petition which is hereby dismissed. 18. Nothing stated in this order shall amount an expression of my opinion on the merits of the suit. Petition dismissed.