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2010 DIGILAW 1113 (PNJ)

Bhagwan Dass v. Jai Kishan And Others

2010-03-09

VINOD K.SHARMA

body2010
Judgment Vinod K.Sharma, J. 1 This regular second appeal is directed against the judgment and decree dated 9.2.2010, passed by the Teamed lower appellate Court, vide which the suit filed by the plaintiff/respondent No. 1 for permanent/mandatory injunction, restraining the defendant/appellant from raising any pucca wall around killa No.19 rectangle No.34 where the tubewell and kothri exist i.e. that part and parcel of the suit land, as detailed in para No.1 of the plaint, was partly allowed. 2 The parties are co-owners, in joint possession over the suit land, as detailed in para No.1 of the plaint. There exists a tubewell and kothri in killa No. 19(7-14), which is part and parcel of the land detailed in para No.l of the plaint. The case of the plaintiff/respondent No.l was, that the defendant/appellant was adamant to raise pucca four walls around killa No.19, where the tubewell of the parties exists, so as to debar the valuable rights of the plaintiff, to use the tubewell. The suit was contested by the defendant/appellant, by raising preliminary objections. On merit, it was claimed by the defendant/appellant, that he was exclusive and sole owner in possession of the tubewell in question along with room measuring 15xl0, and had installed the tubewell, and constructed room from his own funds. He having electric connection in his name and paying electricity charges. 3 On appreciation of evidence, the learned trial Court held, that the plaintiff and defendants are co-sharers in the suit land. It was held, that the suit was not maintainable as a co-sharer was not entitled, to seek injunction against other co-sharers. All other issues were decided against the defendants as not pressed. 4 In appeal, the learned lower appellate Court reversed the findings recorded by the learned trial Court,by holding, that when the suit land and the tubewell installed therein is joint between the parties, then all the parties have equal right to use it because all the co-sharers are deemed to be in possession of every inch thereof. No co-sharer can prohibit other party from use of joint land. 5 The relief granted by the learned lower appellate Court to plaintiff/respondent reads as under:- "As a result of the discussion above, the present appeal merits acceptance to the extent that the plaintiff being co-owner in possession of the land in which the tubewell was installed, have every right to use the same. 5 The relief granted by the learned lower appellate Court to plaintiff/respondent reads as under:- "As a result of the discussion above, the present appeal merits acceptance to the extent that the plaintiff being co-owner in possession of the land in which the tubewell was installed, have every right to use the same. The appeal is accordingly accepted partly. Consequently, the suit also stands partly decreed and a decree for permanent injunction restraining the defendant from causing any hindrance in the use of the tubewell by the plaintiff till the suit land is partitioned, is passed in favour of the plaintiff and against the defendant. The parties are left to bear their own costs. Decree sheet be prepared and file be consigned to record room. Trial court record alongwith a copy of this judgment be sent back." 6 The reading of the relief clause would show, that basically the relief granted to the plaintiff/respondent No.1, is regarding the use of tubewell and restraining the defendant/appellant from taking the steps which could interfere with the use of tubewell by the plaintiff. 7 Mr. Sachin Mitral, learned counsel, appearing on behalf of the appellant, contends that this appeal raises the following substantial questions of law:- "1. Whether the judgment and decree passed by the learned lower appellate Court is a result of misreading of evidence? 2. Whether a co-owner can seek injunction against other co-owner, who is in exclusive possession of the property to the extent of his share?" 8 In support of the substantial questions of the law, the learned counsel for the appellant contended, that the learned lower appellate Court failed to notice that it was the case of plaintiff/respondent No.l himself that the parties were co-sharers. It was also not disputed that the tubewell connection was in the name of defendant/appellant, who was using it. The learned counsel for the appellant, therefore, contends that the learned trial Court had rightly dismissed the suit as not competent against the defendant/appellant. 9 The learned lower appellate Court on the mis-reading of evidence and pleadings of the parties, has wrongly recorded that the property could be used by each of the co-sharers, as they were entitled to use every inch of the joint land. 9 The learned lower appellate Court on the mis-reading of evidence and pleadings of the parties, has wrongly recorded that the property could be used by each of the co-sharers, as they were entitled to use every inch of the joint land. 10 It is also the contention of the learned counsel for the appellant, that the judgment and decree passed by the learned lower appellate Court is against well settled law, that a co-sharer cannot seek injunction against other co-sharer. The remedy is only to file a suit for partition and not a simple suit for injunction. 11 The learned counsel for the appellant also contends that the relief granted by the learned lower appellate Court is beyond the pleadings, as the reading of the prayer clause would show that the only relief prayed was, that the defendant/appellant be restrained from raising boundary wall around the tubewell, he had nowhere claimed the right to use the tubewell. 12 On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The learned lower appellate Court has not recorded a finding, contrary to the evidence or the pleadings nor the finding can be said to be outcome of mis-reading of evidence. The learned lower appellate Court has taken into consideration, that the parties are co-owners, and by appreciating the correct facts and the evidence, the learned lower appellate Court has only ordered, that the defendant/appellant had no right to restrain the plaintiff from using the tubewell, by raising the boundary wall around it. 13 This Court in the case of Om Parkash and others v. Ishwar Singh and others, (2008-4)152 P.L.R. 38 has laid down that when the tubewell, is in the joint holding even if the electric connection is taken in name of one of the brothers, then it would be treated to be on behalf of all. It is not open to one of the brothers, in whose name electric connection was, to get the electricity connection disconnected or restrain other brothers from using the said connection/tubewell. 14 The judgment passed by the learned lower appellate Court is in consonance with the law laid down by this Court. It is not open to one of the brothers, in whose name electric connection was, to get the electricity connection disconnected or restrain other brothers from using the said connection/tubewell. 14 The judgment passed by the learned lower appellate Court is in consonance with the law laid down by this Court. 15 The contention of the learned counsel for the appellant, that no prayer for use of tubewell was made, is mis-conceived, as the very basis of the suit is that the defendant/appellant should be restrained from raising the wall so as not to restrain the use of tubewell. The substantial questions of law raised are answered against the appellant. No merit. Dismissed. R.M.S. Appeal dismissed