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2015 DIGILAW 1169 (HP)

Mehar Chand alias Mehar Singh v. Kalyan Singh

2015-08-26

RAJIV SHARMA

body2015
Judgment : Justice Rajiv Sharma, Judge. This petition is instituted against the judgment dated 22.12.2014 rendered by the Additional District Judge, Hamirpur in Civil Misc. Appeal No. 8 of 2014. 2. “Key facts” necessary for the adjudication of this petition are that petitioner-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) has instituted a suit for decree of permanent prohibitory injunction with respect to land comprised in Khata No.5 min, Khatauni No.12 min, Khasra Nos.93, 95, 96, 206, 207, 210 kitas 6 measuring 0-12-57 hectares situated at Mahaal Jangal Khohar, Mauza Jalari, Tehsil Nadaun, District Hamirpur as per Jamabandi for the year 2007-08. The suit land is owned and possessed by the plaintiff and other co-sharers and the respondent-defendant (hereinafter referred to as the “defendant” for convenience sake), being stranger, has no right, title or interest in the same. Defendant in the second week of September, 2012 started encroaching upon the suit land by destroying its boundaries by way of digging to raise forcible construction and further threatened to forcible lay water pipes through the suit land. Alongwith the suit, plaintiff has also filed an application under order 39 rules 1 and 2 of the Code of Civil Procedure. 3. Suit was contested by the defendant. According to the averments made in the written statement, IPH, Nadaun at Gugal had sanctioned a private water connection in the name of his father which after the demise of his father has been transferred in his name and the water supply through said connection was being made from Jalari-Tiloo scheme. In the year 2006-07, a new scheme was passed under which the water supply was to be made from a big over head tank to the village of defendant and for same the water supply pipes were laid from other side and the general as well as private water supply was made from northern side. Defendant met the official of IPH, Gugal for restoring of water connection from the said supply. It was disclosed that Rasil Singh and his son Ashok Kumar were not allowing to lay water supply pipes alongwith pucca path constructed by Panchayat. Defendant filed a complaint before the District Consumer Disputes Redressal Forum, Hamirpur. Defendant met the official of IPH, Gugal for restoring of water connection from the said supply. It was disclosed that Rasil Singh and his son Ashok Kumar were not allowing to lay water supply pipes alongwith pucca path constructed by Panchayat. Defendant filed a complaint before the District Consumer Disputes Redressal Forum, Hamirpur. The District Consumer Disputes Redressal Forum vide order dated 11.8.2011 allowed the complaint and IPH, Nadaun at Gugal and the brother of the plaintiff and his son were directed to provide water connection to the defendant from water distribution point and to secure regular supply of water as provided to other villagers. Rasil Singh challenged the said order before the H.P. State Consumer Disputes Redressal Commission, Shimla. The appeal filed by Rasil Singh was dismissed by the H.P. State Consumer Disputes Redressal Commission, Shimla on 31.5.2012. Defendant moved an application on 8.8.2012 for execution of the order of District Consumer Redressal Forum. The same came up for hearing on 11.9.2012. It is in these circumstances the plaintiff has filed the suit to create hindrance. Plaintiff was residing at Delhi for the last about 30 years. Defendant has no concern with the suit land except laying of water supply pipes alongwith pucca path already constructed by the Panchayat. 4. Replication was filed by the plaintiff. The application bearing C.M.A. No. 329/2012 in Civil Suit No. 218/2012 was rejected by the learned Civil Judge (Senior Division), Nadaun. Plaintiff preferred an appeal, as noticed hereinabove. The appellate authority dismissed the appeal on 22.12.2014. Hence, the present petition. 5. It has come on record that earlier there was an old scheme for the supply of water known as “Tiloo-Jalari lift water supply scheme”. In order to augment the water supply, new water supply scheme Sai-Matwar came into existence. Thus, the water connections were required to be shifted to get the benefit of Sai-Matwar water supply scheme. All the villagers except defendant have been connected to the distribution of the new pipe lines scheme. It is in these circumstances, defendant was constrained to approach the District Consumer Disputes Redressal Forum. The application was allowed by the District Consumer Disputes Redressal Forum on 11.8.2011. The appeal preferred by the plaintiff was dismissed by the H.P. State Consumer Disputes Redressal Commission, Shimla on 31.5.2012. It has come on record that a pucca path passes through the suit land. The application was allowed by the District Consumer Disputes Redressal Forum on 11.8.2011. The appeal preferred by the plaintiff was dismissed by the H.P. State Consumer Disputes Redressal Commission, Shimla on 31.5.2012. It has come on record that a pucca path passes through the suit land. Path is being used by the defendant and other villagers. The District Consumer Disputes Redressal Forum has also visited the spot and tried to settle the matter in between the parties. However, the matter could not be settled. Pucca path also leads to the house of defendant. It is used since the time of his father. He only wanted to lay water pipe line alongwith this path. Plaintiff has not produced any material to deny the existence of the path through the suit land. Defendant only wanted to lay water supply pipes through the suit land without causing any interference in the suit land. Pucca path has been constructed by the Panchayat. Plaintiff is not going to suffer irreparable loss and injury in case defendant is permitted to lay pipe line alongwith the pucca path. Both the courts below have rightly come to the conclusion that the water is necessity of life. 6. This Court on 30.4.2015 passed the following order: “It is mutually agreed between the parties that parties as also their learned counsel shall personally remain present on the spot on 10th May, 2015, when endeavour shall be made to have the dispute amicably resolved. Mr. Jai Ram Sharma, Advocate, who is present in the Court, has volunteered to remain present on the spot on that date. List the matter in Court on 20th May, 2015.” 7. In sequel to order dated 30.4.2015, spot inspection was carried out. The report has been placed on record. It is evident from the report that mutual settlement was tried between the parties. However, neither of the parties was ready and willing to compromise the matter. Fact of the matter is that dispute could not be resolved even when the spot inspection was carried out and both the parties were present. Neither prima facie case nor balance of convenience is in favour of the plaintiff. It cannot be accepted at this stage, as argued by Mr. Rajneesh K. Lal, that if ad-interim injunction is not granted, suit would become infructuous. Neither prima facie case nor balance of convenience is in favour of the plaintiff. It cannot be accepted at this stage, as argued by Mr. Rajneesh K. Lal, that if ad-interim injunction is not granted, suit would become infructuous. The suit is to be tried on its own merits and it is reiterated that defendant could not be deprived of water connection through the second augmentation scheme. 8. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the petition and the same is dismissed so also the pending applications, if any. It is made clear that the observations made hereinabove shall have no bearing on the merit of the main case. No costs.