- (1.) As per the averments made in the plaint, Gajjan Singh son of Beer Singh (who was grandfather of the appellant as well as plaintiff-respondent No. 1 and father of proforma respondent No. 2) was owner in possession of the total Khewat. He got installed an electric motor connection bearing account No. AG-1/691 of 5 Horse Power in his name during his lifetime. Thereafter, he sold land measuring 10 Bighas 1 Biswa to the plaintiff-respondent No. 1 vide registered sale deed dated 09.12.1999 along with share in the electric motor connection. A recital qua the sale of share in electric motor connection was made in the sale deed and on the basis of said sale deed, mutation was also sanctioned in favour of the plaintiff-respondent No. 1. According to the plaintiff-respondent, he was in possession of the land and was using the electric motor connection to the extent of 1/3rd share for the purpose of irrigating his land. Gajjan Singh expired and his share in the remaining land was inherited by respondent No. 2 along with Ujjagar Singh, Nirbhai Singh and Uggar Singh etc. Thereafter, Ujjagar Singh and Nirbhai Singh exchanged their shares in the suit land with Par-gat Singh-respondent No. 2 and the electric motor connection was transferred from the name of Gajjan Singh to that of Pargat Singh being head of the family and the same was still continuing in his name in the record of the Electricity Board. It is further case of the plaintiff-respondent that power of the aforesaid motor connection was enhanced from 5 HP to 7 HP with funds, to which he also contributed along with respondent No. 2. Gajjan Singh also transferred some land in favour of appellant. The appellant as well as respondent No. 2 were irrigating their land from the electric motor connection in dispute in equal shares along with the plaintiff-respondent. Thus, since purchase of the land from Gajjan Singh, the plaintiff was using the electric motor connection to the extent of 1/3rd share for the purpose of irrigation and defendants were also using the said electric motor connection to the extent of 1/3rd share. However, now since the defendants wanted to grab share of the plaintiff in the electric motor connection by taking undue advantage of the name of respondent No. 2 in the Board records, necessity arose to file the instant suit. Upon notice, the appellant contested the suit by filing written statement raising various preliminary objections. It was admitted that Gajjan Singh had sold the land measuring 10 Bighas 1 Biswa to the plaintiff-respondent No. 1 on 09.12.1999. However, it was denied that Gajjan Singh got installed the electric motor connection in question. It was averred that the electric motor connection was got installed by respondent No. 2 in the name of his father Gajjan Singh. On 23.09.1996 Gajjan Singh transferred the electric motor connection in favour of respondent No. 2 and thereafter, he got enhanced the power of said electric motor connection. It was denied that on 09.12.1999, the electric motor connection was sold by Gajjan Singh as he had already transferred the said connection in the name of respondent No. 2 on 23.09.1999, and therefore, the question of selling the said electric motor connection by Gajjan Singh in favour of plaintiff-respondent on 09.12.1999 does not arise at all. It was denied that plaintiff was using the electric motor connection to the extent of 1/3rd share. It was further averred that Pargat Singh sold the disputed electric motor connection vide registered sale deed dated 15.01.2002 to the appellant along with land measuring 9 Bighas comprised in Khasra No. 148(4-0) and the same was in possession of the appellant, who was exclusively using the electric motor connection since the date of purchase of the said connection. All other averments were denied and dismissal of the suit was prayed for.
(2.) On the basis of the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether plaintiff has no cause of action and locus standi to file the present suit? OPD 4. Relief.
(3.) After hearing learned counsel for the parties, the trial Court vide its judgment and decree dated 16.11.2010 decreed the suit of the plaintiff-respondent. While decreeing the suit, the trial Court observed as under: "Learned counsel for the parties heard and record on judicial file perused. From the perusal of evidence it emerges that motor connection was originally got installed by Gajjan Singh i.e. grandfather of the plaintiff and defendant No. 1 and father of defendant No. 2. The suit land is still joint between the parties which stands duly proved from copy of Jamabandi Ex. P1. Further perusal of sale deed dated 09.12.1999 Mark A executed by Gajjan Singh regarding land 10B-1 B in favour of plaintiff and defendant No. 1 shows that he has also given the share of the motor connection to both plaintiff as well as defendant No. 1 along with the land. Further perusal of agreement mark C shows that matter was settled between the parties and it was agreed that the plaintiff as well as both the defendants will irrigate their fields in equal turns of 24 hours each. The defendants have taken the plea that the motor connection in dispute is in the name of Pargat Singh defendant No. 2 who was the exclusive owner in possession of the same and he has sold the same to defendant No. 1 vide sale deed dated 15.01.2002 Ex. D1. But it is pertinent to mention here that since motor connection was installed by Gajjan Singh and during his lifetime he had given the share of motor connection to the plaintiff and defendant No. 1. Therefore, it can not be held that Pargat Singh was exclusive owner in possession of the motor connection just because it was transferred in his name. Moreover, as per law motor connection is always installed only in the name of one person though there may be several co-sharers in the joint khewat. Further the suit land is still joint between the parties and no partition has taken place till date which also leads this Court to conclusion that motor connection is also joint between the parties. Moreover, defendant No. 2 has not come forward to rebut the evidence of the plaintiff. Therefore, adverse inference is liable to be drawn against him. The law has been settled by the Hon'ble High Court in Gopi Ram v. Shyam Sunder, 2006 2 RCR(Civ) 710 in which it has been held that where the land was jointly owned by the parties and the tube well was installed in the land which was jointly owned by them. No doubt the tube well is in the name of the appellant but that will not advance the case of the appellant unless he shows that it was got installed by him in that piece of land which was in his possession. Since the land was owned jointly, therefore, the tube well installed in the said land also became the joint property. In this case also the defendant while appearing as DW 3 in his cross-examination has admitted that the motor connection was earlier installed by his grandfather Gajjan Singh and the same was transferred in the name of his father and when they were joint, their land used to be irrigated from the above said motor connection. Hence, it clinches the issue for the plaintiff that the motor connection is joint between the parties. Hence, from the above discussion, this issue is decided in favour of the plaintiff and against the defendant.";