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2003 DIGILAW 947 (PNJ)

Balwant Singh v. Avtar Singh

2003-07-15

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter, for brevity to be referred as Code) is directed against the order dated 29.8.2002 passed by the learned Additional District Judge, Sangrur, restraining the defendant-petitioners from obstructing the plaintiffs from having a bore or drawing water from the well in question for cultivating their fields. The well is already in existence and appears to be lying without any use. 2. It is appropriate to mention that the plaintiff-respondents filed a suit seeking a decree of permanent prohibitory injunction. It has been claimed that the plaintiff-respondents are co-sharers in the well and the suit land. The claim of the plaintiff-respondents, however, is that they may be permitted to install a bore in the well for cultivating their land. The prayer made by the plaintiff-respondents has been opposed tooth and nails by the defendant-appellants claiming that they are owners to the extent of 1/2 shares vide Registered Sale deed in their favour dated 5.1.1995 and 29.1.2001 whereas the plaintiff-respondents are entitled to 1/240th share. The learned Civil Judge after hearing the counsel for the parties, declined the application of the plaintiff-respondents for temporary injunction restraining defendant-petitioner from raising construction to use the joint well. The trial Court further found that well is not being used for long time. 3. On appeal preferred by the plaintiff-respondents, the learned District Judge took the view that the defendant-petitioners cannot obstruct the plaintiff-respondents the use of the well and issued interim directions. The view of the learned Additional District Judge read as under:- "I am of the view that copy of the jamabandi shows that the suit property is non-working well and is owned by different co-sharers. Plaintiffs had 1/240 share in the suit property and defendants have got 1/2 share in the said property. The law is well established that co-owner has interest in whole property and also in every parcel of it. A joint owner cannot change the nature of the property by raising construction. So neither the plaintiffs nor defendants have got any right to make any construction on the suit property. Since the suit property is well and Taur so plaintiffs and defendants have got right to use the same. Neither of the parties can oust the other from using the same. As per revenue record the well is not in working order. So neither the plaintiffs nor defendants have got any right to make any construction on the suit property. Since the suit property is well and Taur so plaintiffs and defendants have got right to use the same. Neither of the parties can oust the other from using the same. As per revenue record the well is not in working order. Counsel for the plaintiff has submitted that plaintiffs want to have a bore in the well for cultivating their fields. 8. Since the plaintiffs are co-sharers in the well in question so they are within their rights to use the well in the manner which does not affect the rights of the defendants. Defendants have got no right to obstruct the plaintiffs from installing a bore, in the well in question...." "Moreover having a bore in the well is just using the well for the purpose of cultivating and same is not permanent construction. The learned lower court failed to take note that the plaintiffs want to use the well without affecting rights of defendants. So this appeal is allowed to the effect that the defendants are restrained from raising any obstruction to the plaintiffs for having a bore in the well in question for drawing water for the purpose of cultivation. The counsel fee is assessed at Rs. 500/-. In view of the peculiar circumstances of the case the parties are left to bear their own costs. Memo of costs be prepared and the file be consigned." 4. I have heard Mr. Raman Sharma, learned counsel for the defendant-petitioners, who has argued that the total land in dispute is 13 Marias and the share of the plaintiff-respondents on their own showing is 1/240th shares whereas the defendant-petitioners are entitled to 1/2 share. The learned counsel has also pointed out that the well is not in use as per the jamabandi for the year 1996-97 and the main relief claimed in the suit is to restrain the defendant-petitioners from causing any obstruction in rasing the constructions of a room over the said well. The same relief has been claimed in the application, which would amount to passing a decree in favour of the plaintiff-respondents. The same relief has been claimed in the application, which would amount to passing a decree in favour of the plaintiff-respondents. In support of his submissions, the learned counsel has placed reliance on a judgment of this Court in the case of Ram Niwas v. Jai Ram alias Tej Ram, 2000(3) R.C.R. (Civil) 738 (P&H), and argued that the co-sharer cannot be permitted by an interim order to change the nature of the property to such an extent that it may become difficult or impossible for a co-owner to get an effective partition. 5. Mr. S.K. Markan, learned counsel for the plaintiff-respondents has argued that the fact that the plaintiff-respondents have small share in the land would not defeat their right of enjoyment of well. The co-sharer cannot interfere in the use of the well by the plaintiff-respondents. The learned counsel has placed reliance on a judgment of this Court in the case of Man Mohan v. Ramesh Kumar, (2000-3)126 P.L.R. 318 and also on the judgment of the Supreme Court in the case of Mehanga Singh and Ors. v. Balbir Singh, J.T. 2000 (Supp.1) S.C. 285. 6. After hearing the learned counsel for the parties and perusing the record, I am of the considered view that the learned Additional District Judge has committed an error of law in reversing the order of the Civil Judge dated 12.4.2002. It is well settled that once a reasoned order has been passed by the Civil Judge, then unless those reasons are held to be irrelevant, the lower appellate court cannot interfere in such an order. The learned Civil Judge has mentioned various reasons for decling the prayer made by the plaintiff respondents. The observation of the learned Civil Judge reads as under: "After hearing Ld. counsel for the parties and on going through the file, I find that the plaintiffs themselves have mentioned in para No. 2 that they are having share to the extent of 1/240 in joint well, whereas the defendants are enjoying 1/2 share in the same. The plaintiffs have prayed a relief for temporary injunction restraining the defendants from raising construction to use the joint well on the ground that the plaintiffs are interested to install a bore in the said suit property for cultivating their land. The plaintiffs have prayed a relief for temporary injunction restraining the defendants from raising construction to use the joint well on the ground that the plaintiffs are interested to install a bore in the said suit property for cultivating their land. But the plaintiffs have failed to convince this Court about the working condition of the above said well, No doubt the well is joint between the parties, but copy of jamabandi for the year. 1996-97 reflects that this Gair Jari Well meaning thereby that it has not been used since long. The plaintiffs are claiming their right to use the said well during the pendency of the suit despite the fact that this is a Gair Jari well (non-working well). They have filed the suit for restraining the defendants from causing any act of obstruction in raising the construction of Kotha over the said well and at the same time are praying for temporary relief of the same nature. As such, I do not find any equity in favour of the plaintiff to accept the application for temporary injunction and the same is dismissed without any order to the costs and without any prejudice to the main suit." Without adverting to the reasons disclosed by the Civil Judge, the learned Additional District Judge has reversed the order passed by the learned Civil Judge. The total suit land is 13 marlas out which 1/2 share is owned by the defendant-appellants. Out of total 13 marlas, the plaintiff-respondents have 1/240 share. The total land which would come to the share of the plaintiff-respondents would be in yards. Moreover, the well is lying un-used and it is the principal prayer made by the plaintiff-respondents in their suit. It is well settled that no interim order can be passed which would amount to passing a decree in favour of the plaintiffs. Therefore, the order passed by the learned Additional District Judge is liable to be set aside. 7 The judgments relied upon by the learned counsel for the plaintiff-respondents in Mehanga Singhs case (supra) and Man Mohans case (supra), do not help them because in Mehanga Singhs case (supra), the Supreme Court was dealing with the final decision of the parties. Moreover, the fact that the share of the plaintiffs was very meagre is missing from the judgment. Similar is the position in the case of Man Mohan Singh (supra). Moreover, the fact that the share of the plaintiffs was very meagre is missing from the judgment. Similar is the position in the case of Man Mohan Singh (supra). Therefore, those judgments do not apply to the facts of the present case. 8. For the reasons stated above, this petition succeeds. The order dated 29.8.2002, passed by the learned Additional District Judge is set aside and that of the Civil Judge dated 12.4.2002 is restored. The application filed by the plaintiffs under Order 39 Rules 1 and 2 CPC stands dismissed. Revision Petition is allowed.