- (1.) 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 Code of Civil Procedure 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 Code of Civil Procedure 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.;