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2018 DIGILAW 866 (PNJ)

Santokh Singh v. Rajinder Singh (deceased) through LRs

2018-02-19

AMIT RAWAL

body2018
JUDGMENT Mr. Amit Rawal J.:- The appellant-plaintiff/Santokh Singh is aggrieved of the dismissal of the suit claiming mandatory injunction against the defendants to lay underground ACC Water Supply pipes of the plaintiff at points A to C shown in red colour in the site plan in the land shown in yellow colour forming part of khasra Nos.1473(8-0) and 1474 (5-4) situated in the revenue estate of village Bodal Hadbast No.93 P.S. and Tehsil Dasuya, District Hoshiarpur with a further direction to the defendants for restoration of underground pipes for irrigation purpose to their original position and for permanent injunction restraining the defendants from uprooting these pipes for all times to come till the joint khata lawfully partitioned, has been dismissed by both the courts below. 2. Mr. K.S. Cheema, learned counsel appearing on behalf of the appellant-plaintiff submitted that the suit aforementioned was filed on the premise that the plaintiff had been giving water to defendant Nos.1 and 3 for irrigation of the land in their possession free of cost for about 10 years. Defendant Nos.1 and 3 are joint owners in joint khata along with plaintiff and other joint owners, in essence, possession of khasra No.1573 and 1574 was in joint khata. In the month of June 2006, the plaintiff told the defendant No.1 and 3 that he would give water to defendant No.1 and 3 after irrigating his own land but the defendants insisted for supply of the water before plaintiff’s turn, which was not acceded to by the plaintiff. They felt annoyed and on the next day broke and uprooted the underground ACC water supply pipes of the plaintiff with the help of JCB machine. 3. The aforementioned suit was contested by the defendants by taking objections and denied uprooting of ACC pipes, much less, their existence. It was stated that the story put forward in the plaint was a concocted one and conduct of the plaintiff was stated to be mala fide. 4. The plaintiff in support of his case brought on record following witness and documents:- “4. Harinder Singh Draftsman as PW1, Raj Kumar as PW2, Amandeep Singh as PW3, Sukhwinder Singh as PW4, Malkiat Singh as PW6. (i) site plan as Ex.P1. (ii) photographs as Ex.P2 to Ex.P6 (iii) attested copy of power of attorney as Ex.P6/A. (iv) Negatives of photographs as Ex.P7 to P11. Harinder Singh Draftsman as PW1, Raj Kumar as PW2, Amandeep Singh as PW3, Sukhwinder Singh as PW4, Malkiat Singh as PW6. (i) site plan as Ex.P1. (ii) photographs as Ex.P2 to Ex.P6 (iii) attested copy of power of attorney as Ex.P6/A. (iv) Negatives of photographs as Ex.P7 to P11. (v) Original letter dated 10.11.2010 as Ex.P12 (vi) Jamabandi of year 2000-01 as Ex.P13. (vii) Jamabandi of year 2000-01 as Ex.P14. (viii) Aks Shijra as Ex.P15.” 5. The defendants also led evidence in support of their defence by examining Rajinder Singh as DW1 and tendered copy of the order dated 6.6.2011 as Ex.D1 and closed the evidence. 6. Both the courts below abdicated in dismissing the suit on the ground that no injunction can be granted against the co-owners when the property is joint in khata until partitioned but ignored the testimony of the defendants whereby they conceded the site plan showing possession of the property qua khasra nos.1472, 1475, 1476, 1477, 1534 and 1535 and regarding khara No.1534 and 1535, jamabandi Ex.P14 revealed that the aforementioned khasra numbers i.e. khasra No.1534 and 1535 were not in exclusive possession of the plaintiff but in possession of all the co-sharers. Once a co-sharer had put another cosharer to loss then surely mandate can legally be issued to restore the same. Regarding admissibility of document Ex.P12, the same was not disputed by the respondents-defendants. They did not cross-examine the attorney of plaintiff qua documents, much less, uprooting of the pipes from khasra No.1473 and 1474. Both the Courts below had given a different tinge and colour to the case of plaintiff, though it is a settled law that a co-sharer has no right to create hindrance in the enjoyment of his right especially when the enjoyment do not cause hindrance to another co-sharer. The defendants admitted the site plan to be correct. The appellant-plaintiff planted orange orchard in Khasra No.1475 to 1477, 1534 and 1535 and also constructed moghies M1 to M3 as shown in the site plan and laid the ACC pipes for irrigation purposes. It was admitted fact that the appellant-plaintiff had installed tube-wells in Khasra No.1472 and Khasra No.1472, 1475, 1476, 1477, 1534 and 1535 and were in exclusive possession of the same. Therefore, the Courts below abdicated in not granting the injunction. The letter dated 10.11.2010 (Ex.P12) showed the laying of pipes in the year 1996. It was admitted fact that the appellant-plaintiff had installed tube-wells in Khasra No.1472 and Khasra No.1472, 1475, 1476, 1477, 1534 and 1535 and were in exclusive possession of the same. Therefore, the Courts below abdicated in not granting the injunction. The letter dated 10.11.2010 (Ex.P12) showed the laying of pipes in the year 1996. However, DW1 in cross-examination admitted the uprooting of the pipes with the help of the JCB, thus, urges this Court for setting aside the finding under challenge. 7. Per contra, Mr. Sanjeev Pandit, learned counsel appearing on behalf of the respondents/defendants submitted that in view of the law laid down by Full Bench judgment of this Court in Bhartu Vs. Ram Sarup 1981 PLJ 204 and Division Bench judgment in Bachan Singh Vs. Swaran Singh 2000(3) RCR (Civil) 70, no injunction can be granted against the coowners. The Courts below examined the witnesses threabare and found the defendant-Rajinder Singh to be in exclusive possession of Khasra No.1474 and 1475, therefore, held that injunction could not be granted. The admission of the defendant would not help the plaintiff in view of the settled legal position, thus, urges this Court for dismissal of the appeal by upholding the judgments and decrees under challenge. 8. I have heard learned learned counsel for the parties, appraised the paper book and of the view that there is no force and merit in the submissions of Mr. Cheema, as it has been proved during the evidence that the defendant-Rajinder Singh had been in exclusive possession of Khasra No.1474 and 1475 whereas Khasra Nos.1534 and 1535 were not in exclusive possesion of the plaintiff also but in the possession of all the cosharers. In the absence of the partition, even with regard to the pipes which had been laid and broken, mandatory injunction cannot be granted unless and until the partition by means of metes and bounds is not done. It is yet to be established whether the pipes already laid would fall within the share of the plaintiff or to the defendants. The injunction, if granted, would tantamount to putting the clock back, which cannot be done unless and until the remedy for seeking partition of the property is not availed. 9. It is yet to be established whether the pipes already laid would fall within the share of the plaintiff or to the defendants. The injunction, if granted, would tantamount to putting the clock back, which cannot be done unless and until the remedy for seeking partition of the property is not availed. 9. In view of the aforementioned, I do not intend to differ with the concurrent findings of fact and law rendered by both the Courts below as the same are based upon the preponderance of evidence, much less, no substantial question of law arises for determination by this Court. No ground for interference is made out. Resultantly, the second appeal is dismissed.