BHAGWAN DASS Vs. JAI KISHAN AND ORS

JUDGEMENT

(1.) This regular second appeal is directed against the judgment and decree dated 9.2.2010, passed by the learned lower appellate Court, vide which the suit filed by the plaintiff/respondent No. 1 for permanent/mandatory injunction, restraining the defendant/appellant from raising any pucca wall around killa No. 19 rectangle No. 34 where the tubewell and kothri exist i.e. that part and parcel of the suit land, as detailed in para No. 1 of the plaint, was partly allowed.

(2.) The parties are co-owners, in joint possession over the suit land, as detailed in para No. 1 of the plaint. There exists a tubewell and kothri in killa No. 19(7-14), which is part and parcel of the land detailed in para No. 1 of the plaint. The case of the plaintiff/respondent No. 1 was, that the defendant/appellant was adamant to raise pucca four walls around killa No. 19, where the tubewell of the parties exists, so as to debar the valuable rights of the plaintiff, to use the tubewell. The suit was contested by the defendant/appellant, by raising preliminary objections. On merit, it was claimed by the defendant/appellant, that he was exclusive and sole owner in possession of the tubewell in question along with room measuring 15' x 10', and had installed the tubewell, and constructed room from his own funds. He having electric connection in his name and paying electricity charges.

(3.) On appreciation of evidence, the learned trial Court held, that the plaintiff and defendants are co-sharers in the suit land. It was held, that the suit was not maintainable as a co-sharer was not entitled, to seek injunction against other co-sharers. All other issues were decided against the defendants as not pressed.