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2011 DIGILAW 562 (PNJ)

Maninder Singh v. Paramjeet Singh

2011-02-11

RAM CHAND GUPTA

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JUDGMENT RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India read with Section 151 of Code of Civil Procedure (for short the ‘CPC’) for setting aside impugned order dated 31.08.2009 passed by the court of Additional District Judge, Jagadhri vide which appeal filed by respondents-plaintiffs against order dated 20.07.2009 passed by learned trial Court on application filed under Order 39 Rules 1 and 2 CPC by respondents-plaintiffs, was accepted and the present petitioners-defendants were restrained from interfering in the right of respondents-plaintiffs to irrigate the land which is in their possession as mortgagee from the tubewell in question. 2. I have heard learned counsel for the parties and have gone through the whole record including the orders passed by both the courts below. 3. Facts relevant for the decision of the present revision petition are that, two mortgage deeds were executed in favour of respondents-plaintiffs by Bhagwan Singh, father of present petitioners-defendants. The first mortgage deed is dated 15.05.2006 vide which land measuring 18 Kanals 14 Marlas was mortgaged with possession to respondents-plaintiffs. Subsequent mortgage deed is dated 14.05.2008 vide which 23 Kanals 17 Marlas was mortgage in favour of respondents-plaintiffs by Bhagwan Singh. There is recital in the subsequent mortgage deed that respondents-plaintiffs would be having right to irrigate the mortgaged land from a tubewell installed in Khasra No.7/2/1 of rectangle No.12 and that however, the electricity charges and the charges for the repair of the tubewell would be borne by mortgagees as well as by Bhagwan Singh equally as Bhagwan Singh was also have to irrigate his land measuring 5-1/2 acres. After death of Bhagwan Singh, obstruction was caused by his sons i.e. the present petitioners-defendants in the use of tubewell by respondents-plaintiffs and hence, the present suit was filed. Alongwith the suit, an application under Order 39 Rules 1 and 2 CPC for ad-interim injunction was also filed. Suit and application were contested by petitioners-defendants on the ground that tubewell was not installed in the land mortgaged to respondents-plaintiffs by Bhagwan Singh and that tubwell was installed by present petitioners in their own land after death of Bhagwan Singh and hence, respondents-plainfiffs have no right to irrigate the land from the said tubewell. 4. Learned first appellate court while granting ad-interim injunction order in favour of respondents-plaintiffs observed as under:- “5. 4. Learned first appellate court while granting ad-interim injunction order in favour of respondents-plaintiffs observed as under:- “5. The trial court, however, erred in not relying on the recital in the mortgage deed. It is even otherwise presumable that if land was given to the mortgagees by way of usufructuary mortgage, then they were also to get some right to irrigate the land. Without water the land would have been useless to them. It is clearly mentioned that in the land next to the mortgaged property there was tubewell installed and it was also made clear that the present defendant No.1 would also be entitled to take water from the tubewell for 5-1/2 acres of land and the present plaintiffs would be entitled to irrigate the entire mortgaged land from the same tubewell and in lieu thereof they would pay half of the electricity charges and half of the charges for repair of the tubewell. Counsel for the appellants filed copies of jamabandis for the years 1999-2000 and 2004-2005 showing that tubewells were existing in the land owned by Bhagwan Singh also and also in one of the khasra numbers in question. Defendant No.1, therefore, must be owning a separate tubewell which was installed in khasra No.7/2/1 of rectangle No.12 as alleged by him. In any case, the tubewell which was installed in the land which was under the ownership and possession of Bhagwan Singh at the relevant time, is the one from which the plaintiffs are entitled to get water for irrigating the mortgaged property. 6. It was wrongly pleaded by defendants that they were not bound by the terms and conditions of the mortgage deeds. Since Bhagwan Singh was their predecessor, the defendants are bound by the documents. Also at this stage there is nothing to show that Bhagwan Singh was a habitual drinker and that the plaintiffs had taken any undue advantage of that fact. The mortgage deeds being registered are presumed to be valid and legal documents and the recitals made therein are binding on the defendants being the successors of Bhagwan Singh and they cannot stop the plaintiffs from irrigating the land from the tubewell in question. 7. The mortgage deeds being registered are presumed to be valid and legal documents and the recitals made therein are binding on the defendants being the successors of Bhagwan Singh and they cannot stop the plaintiffs from irrigating the land from the tubewell in question. 7. Regarding electricity charges, the plaintiffs shall remain bound to pay half of the same and it was contended by the counsel for the plaintiffs that they had stopped paying the charges in between because the connection had been got disconnected by defendant No.2 and the tubewell was being run by the defendants by making theft of electricity. The connection was, however, restored under the order of the consumer Forum and once the official connection is there, the plaintiffs shall be bound to pay half of the consumption charges and repair charges.” 5. It is the case of the present petitioners as well, as mentioned in para No.2 of the petition that electricity connection on the tubewell was in the name of their father Bhagwan Singh and that however, electricity charges are being paid by petitioners. Hence, it cannot be said that the tubewell was not in existence when the second mortgage deed was executed by Bhagwan Singh, father of present petitioners in favour of respondents-plaintiffs. It is immaterial as to whether tubewell was installed in the land comprised in any of the Khasra numbers mortgaged with respondents-plaintiffs or in any of the Khasra numbers owned by Bhagwan Singh or his sons. The material is as to whethther respondents-plaintiffs are having right to irrigate the land on payment of half of electricity charges and half of charges for repair of the tubewell. For that purpose, the recital has been made by Bhagwan Singh, father of present petitioners in the mortgage deed. As the land has been mortgaged with possession in favour of respondents-plaintiffs, they are having right to irrigate the same. It has been rightly observed by learned first appellate Court that without right to irrigation, the land would be useless for respondents-plaintiffs. Moreover, learned first appellate Court vide impugned order has given right to respondents-plaintiffs to irrigate the land subject to their paying half of the consumption charges and repair charges. It has been rightly observed by learned first appellate Court that without right to irrigation, the land would be useless for respondents-plaintiffs. Moreover, learned first appellate Court vide impugned order has given right to respondents-plaintiffs to irrigate the land subject to their paying half of the consumption charges and repair charges. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned first appellate Court in passing the impugned order, warranting interference by this Court. 6. There is no merit in the present revision petition. The same is, hereby, dismissed. Petition dismissed.