JUDGMENT Tribhuvandahiya, J. - This revision petition has been filed under Article 227 of the Constitution of India for setting aside the orders dated 14.12.2020 and 12.01.2021 (Annexures P-6 and P-7 respectively) passed by the trial Court and the lower appellate Court respectively, whereby application for temporary injunction filed by the respondents/plaintiffs under Order XXXIX Rules 1 and 2 of CPC was allowed, and appeal against the same filed by the petitioners/defendants was dismissed. 2. The facts of the case in brief are, the respondents/plaintiffs (hereinafter referred to as the 'plaintiffs') filed a suit for declaration as well as mandatory injunction pleading that plaintiffs and defendants No.1 to 5 with other co-sharers were joint owners of the suit land, which has not been partitioned. But by way of mutual adjustment, the parties and other co-sharers were cultivating separate killa numbers for the last several years as per their shares. It was further pleaded that there existed a joint well in Rectangle No.36, killa No.22/2 (7-14) in which electricity connection was installed in the name of late Prabhu Singh son of Roop Chand (common ancestor of the parties) with joint expenses and consent of all the co-sharers, since long. Prabhu Singh died issueless more than 15 years back, still the electricity connection continued in his name upto August, 2020. The plaintiffs had been cultivating their lands with the said tubewell for the last many years and paying the electricity bills also as per their shares. Similarly, the petitioners/defendants (hereinafter referred to as the 'defendants') and other co-sharers were also cultivating their land from the said tubewell. However, the defendants in collusion with one Raj Kumar, who is working in the office of DHBVN, Buroli, got the electricity connection transferred in the name of defendant No.1. This was done without the plaintiffs' consent, only to deprive them of joint usage of the tubewell and electricity connection. The prayer in the application for interim injunction is that the plaintiffs may be allowed to use the said electric well jointly for irrigating lands as per their share on payment of electricity charges, till final decision of the suit. 3. The defendants contested the suit, a joint written statement (Annexure P-3) was filed by defendants No.1 to 3.
The prayer in the application for interim injunction is that the plaintiffs may be allowed to use the said electric well jointly for irrigating lands as per their share on payment of electricity charges, till final decision of the suit. 3. The defendants contested the suit, a joint written statement (Annexure P-3) was filed by defendants No.1 to 3. It was admitted that by virtue of mutual adjustment, all the co-sharers were in cultivating possession of specific portion of land being co-sharers, and also that the land had not been partitioned. It was further submitted that the plaintiffs had no concern with the tubewell installed in killa No.22/2 as also the electricity meter. As per jamabandi for 1960-61 this land was in possession of co-sharer Roopa, predecessor of the defendants. It was also pleaded that defendants never irrigated their fields by this tubewell, and they had installed separate tubewell over rectangle No.39, killa No.1 for the purpose of irrigating their lands, which was in their exclusive possession. 4. Interim injunction application filed by the plaintiffs was allowed by trial Court by order dated 14.12.2020, and the same was affirmed by lower appellate Court vide order dated 12.01.2021. The trial Court while allowing the application directed the defendants to allow the plaintiffs to use the said electricity connection three times in a week or on alternate days as per their wish, as a temporary measure. 5. Learned counsel for the petitioners/defendants contends that the order granting temporary injunction in fact amounts to allowing the suit itself, and final relief claimed in the suit can not be granted by way of interim injunction as per settled legal proposition. He has further contended that no injunction can be issued against co-sharers, and it is admitted fact on record that parties are co-sharers of the suit land. He has also contended that the land comprised in killa No.22/2 was exclusively occupied by the defendants and their predecessors since the time of consolidation, and was being used for irrigating their lands only. By granting interim injunction at this stage, the Courts below have unsettled the things which were settled between the parties long back. In support of the submissions, he has relied upon judgment of Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden, 1990 (2) SCC 117 . 6.
By granting interim injunction at this stage, the Courts below have unsettled the things which were settled between the parties long back. In support of the submissions, he has relied upon judgment of Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden, 1990 (2) SCC 117 . 6. Per contra, learned counsel for the respondents/plaintiffs submitted that orders passed by the Courts below granting/affirming interim injunction to the plaintiffs deserve to be upheld as the same are well reasoned, based on valid considerations. 7. Learned counsel for the parties have been heard and the paper book perused. 8. It is not in dispute between the parties that the suit land between them is joint, they are co-sharers though have their separate respective possession as per mutual arrangement,and the land has not been partitioned by metes and bounds. It is also not in dispute that originally the tubewell connection was in the name of co-sharer late Prabhu Singh since 1984, who died issueless in the year 2005. Even after his death, the connection continued in his name till 2020, when it was transferred to the name of defendant No.1-Om Parkash. Both the parties have claimed that they have been cultivating separate killa numbers in their possession by using this electric tubewell. Both of them claim to have been paying the electricity bills also. No evidence or material was brought before the Courts below to establish that the electric tubewell connection was exclusively being used by either of the parties only, to the exclusion of the other. This is a fact to be decided by the trial Court after adducing of evidence before it. In case, till final adjudication of the issue between the parties, the trial Court has granted interim injunction allowing the plaintiffs to temporarily use the electric tubewell three times in a week or on alternate days as per their wish, no exception can be taken to it. There is prima facie in the plaintiffs' favour. In case they are prevented from using it altogether, an irreparable loss will be caused. 9. Besides, in Pritpal Singh and others v. Hari Singh and others 2017(2) PLR 374, this Court has held that in a joint land, sanction of electric tubewell connection in the name of one of the parties cannot be taken as an instance of exclusive use of electric connection.
9. Besides, in Pritpal Singh and others v. Hari Singh and others 2017(2) PLR 374, this Court has held that in a joint land, sanction of electric tubewell connection in the name of one of the parties cannot be taken as an instance of exclusive use of electric connection. The ratio of judgment is reflected in para 9 thereof, which reads as under: In the instant case the positive pleadings on record are to the effect that Bhag Singh and Bhagat Singh were jointly cultivating their respective share by use of electric motor in question. There was no partition claimed by the original co-sharers during their life time. The existence of electric connection in the name of one of the party cannot be taken to be an instance of exclusive use of electric connection, particularly when the same is installed in the joint land of the parties. The name of one of the co-sharer has to be entered in the record of the Department while sanctioning the electric connection. Such an activity is only for setting the record right. Such an Interpretation does not give any exclusive right to the person in whose name electric connection is installed in the joint property. At this initial stage, however the same would be a subject matter of evidence to be led by both the parties at trial. 10. The proposition of law that a co-sharer cannot seek an injunction against another co-sharer, will not be applicable to the facts of this case. Since the plaintiffs by way of the civil suit in question are merely seeking a declaration that the electricity connection existing in the joint land of parties, which was originally in the name of their common ancestor, is owned by all the co-sharers, and defendant No.1 could not have got it transferred in his name. The mandatory injunction has been sought to retransfer the said connection in the name of plaintiffs and other co-sharers of land. Therefore, the injunction being sought is not against the interests of the co-sharers; rather it is to serve their interests. It does not seek their ouster or any restrain on usage of land as per their share. The grant of temporary injuction too does not unsettle the things in any manner, as the electric well was admittedly in the name of parties' common ancestor, installed in their unpartitioned land.
It does not seek their ouster or any restrain on usage of land as per their share. The grant of temporary injuction too does not unsettle the things in any manner, as the electric well was admittedly in the name of parties' common ancestor, installed in their unpartitioned land. The preponderance of probabilities also indicate joint use of the well by the parties, and the temporary injunction granted by the trial Court only facilitates its joint use. 11. The judgment of Supreme Court in Dorab Cawasji Warden case (supra) relied upon by learned counsel for the petitioners/defendants is also not applicable to the facts of this case, as it relates to a dwelling house which was held in equal shares by undivided family of two brothers. In this judgment, the Court held that till the property is divided by metes and bounds, the brothers should be deemed to be holding the property as members of undivided family. Transfer of a share by one brother would come within the scope of Section 44 of the Transfer of Property Act, 1882. Where the transferee of a share of the dwelling house is not a member of the undivided family, he would not be entitled to joint possession of the same. It has been further held that injunction against such a transfer should not be denied as it would cause irreparable injuries to other members of the family. No such situation arises in the case at hand. 12. In view of the above, there is no ground to interfere with the well reasoned orders passed by the Courts below. The same do not suffer from any illegality or perversity. The discretion vested in the trial Court has been validly exercised on sound principles of law by granting the temporary injunction. 13. Petition stands dismissed. 14. The observations hereinabove are only to decide the instant petition, and shall not be construed as an expression of opinion on the merits of the suit. 15. Pending miscellaneous application(s), if any, stand disposed of as having been rendered as infructuous.