(O&M) Nathu vs Sampat Etc
2022 Latest Caselaw 16735 P&H

                  RSA-1138-1990 (O&M)

                      IN THE HIGH COURT OF PUNJAB AND HARYANA
                                    AT CHANDIGARH

                  (214)                                   RSA-1138-1990 (O&M)
                                                     Date of Decision: 14.12.2022


                  Nathu                                                   ......Appellant

                                                     Versus

                  Sampat and others                                        ....Respondents

                  CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA

                  Present:     Mr. Umesh Aggarwal, Advocate, for
                               Mr. Alok Jain, Advocate, for the appellant.

                               ****

HARKESH MANUJA, J.(ORAL)

By way of present regular second appeal, challenge

has been made to the judgments and decrees dated 28.09.1989

& 19.02.1990, passed by the Court of learned Sub Judge, IInd

Class, Gurgaon and affirmed by the District Judge, Gurgaon,

granting decree for permanent injunction in favour of

respondents No.1 to 13 being plaintiffs (hereinafter referred to

as plaintiffs).

The facts leading to the present appeal are that

plaintiffs filed a suit for permanent injunction claiming

themselves to be joint owner in possession of killa No.10 Rect.

No.94 along with a tubewell installed therein with the further

averments that the appellant/defendant No. 1(hereinafter

referred to defendant No.1) was not allowing them to irrigate

their land from the said tubewell thereby compelling them to file

the suit.

ANIL KUMAR 2022.12.20 10:20 I attest to the accuracy and Upon notice, defendant No.1 contested the suit by integrity of this document RSA-1138-1990 (O&M)

filing his written statement stating therein that neither plaintiffs

were owners nor in possession of the tubewell as the land in

question already stood partitioned privately and killa No.10

Rect. No.94 fell to his exclusive share who got installed his

private tubewell therein and as such, the plaintiffs were having

no right of irrigation from the said tubewell. Based on the

entries incorporated in the Jamabandi for the year 1982-83

(Ex.P-1) showing the parties to the litigation being in possessing

being co-sharer in killa No.10, besides even the statements

made by the witnesses who appeared on behalf of defendant

No.1, the trial Court held that the land in question was still joint,

never partitioned by the revenue authorities and thus, being co-

owner, the plaintiffs were having right to carry out

irrigation/cultivation through the tubewell installed in killa

No.10.

Aggrieved against the judgment and decree dated

28.09.1989, the appellant herein filed first appeal, that the

same came to be dismissed vide judgment and decree dated

19.02.1990 passed by the Court of learned District Judge,

Gurugram, thereby affirming the judgment and decree passed

by the trial Court.

It has been contended on behalf of the appellant that

security for the tubewell in question was admittedly paid by

Phool Singh i.e. son of the appellant herein and even the electric

connection was also in his name which sufficiently proved that

the land already stood partitioned and the tubewell in question

ANIL KUMAR 2022.12.20 10:20 was exclusively owned/inherited by defendant No.1. I attest to the accuracy and integrity of this document RSA-1138-1990 (O&M)

No one has chosen to appear on behalf of respondent.

I have heard learned counsel for the appellant and

have gone through the paper book. I am unable to accept the

submissions made on behalf of the appellant.

In the facts and circumstances of the present case, the

land dispute falling in killa No.10, rectangle No.94 was rightly

held to be Joint between the parties particularly in the wake of

admission made by DW2 who happened to be the son of

defendant No.1 himself and exclusive possession of different co-

sharers over separate parcels was also not taken to be the proof

of partition by having relied upon entries made in the revenue

records i.e. Jamabandi, showing the parties to be co-sharer

besides on account of pendency of partition proceedings before

the revenue authorities. Once a concurrent finding of fact was

recorded by the Courts below to the effect that the land in

question falling in killa No.10 Rect. No.94 was still recorded to

be joint between the parties, mere fact that the security for the

purpose installation of tubewell was deposited in the name of

son of defendant No.1 or even the connection having sanctioned

in his favour would not render the tubewell in question to be

joint between the parties. Once the tubewell was got installed

over the joint land, every co-sharer including the

respondents/plaintiffs was having right to carry out cultivation

of the joint holding through the same particularly in view of

statement made by DW4 (Record Keeper from electricity Board)

who specifically deposed that in case of land being joint,

ANIL KUMAR 2022.12.20 10:20 tubewell connections were normally given in the name of one of I attest to the accuracy and integrity of this document RSA-1138-1990 (O&M)

the co-sharers.

In view of the reasoning recorded hereinabove, I do

not find any merit in the present appeal as no question of law

much less substantial question of law arises for consideration,

enabling any kind of interference under Section 100 of CPC at

the hands of this Court. Accordingly, the present appeal is

hereby dismissed.

Pending applications, if any, shall stand disposed of.

                                                          (HARKESH MANUJA)
                                                               JUDGE
                  14.12.2022
                  anil

                               Whether speaking/reasoned        :          Yes/No
                               Whether reportable               :          Yes/No




ANIL KUMAR
2022.12.20 10:20
I attest to the accuracy and
integrity of this document