MAHANGA SINGH Vs. BALBIR SINGH

JUDGEMENT

(1.) The plaintiff-respondent herein filed a suit for permanent injunction restraining the defendants-appellants herein from forcibly digging earth or repairing the well within the abadi of village on the allegation that the said portion of land is owned and possessed by him. It was also stated that the well which is situated in khasra nos. 791 and 792 is in disuse since 1937 and therefore the defendants are not entitled to draw any water from the said well. The defendants-appellants contested the said suit. Their case was that they being the co- sharers of the well, are entitled to repair the well and draw water. The trial court decreed the suit. The first Appellate court on appeal by the defendants-appellants, set aside the decree of the trial court and allowed the appeal. The High court in the second appeal filed by the respondent herein, set aside the judgment of the first Appellate Court and restored the decree of the trial court. It is against the said judgment of the High court the defendants-appellants are in appeal.

(2.) We have heard learned Counsel for the parties. A perusal of the judgment of the courts below shows that the appellants and respondent are co-owners of the well. In view of such a finding, no injunction could have been granted either by the trial court or by the High Court restraining the co-owners from repairing the well and drawing the water from it. It is at this stage, learned Counsel appearing for the appellants stated that the appellants have no objection if the respondent draws water for his own use without disturbing the possession of the appellants. In view of the matter, we modify the decree under appeal to this extent that the appellants would be entitled to repair the well and both the parties would be entitled to draw water from that well after the same is repaired. However, the appellants shall not encroach upon the land or disturb the possession of the respondent over the land. The appellants shall have only right of passage for purposes of drawing water from the well. The appeal is disposed of in the aforesaid terms. There shall be no order as to costs.