BALWANT SINGH Vs. AVTAR SINGH

JUDGEMENT

(1.) THIS petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter, for brevity to be referred as 'Code') is directed against the order dated 29.8.2002 passed by the learned Additional District Judge, Sangrur, restraining the defendant-petitioners from obstructing the plaintiffs from having a bore or drawing water from the well in question for cultivating their fields. The well is already in existence and appears to be lying without any use.

(2.) IT is appropriate to mention that the plaintiff-respondents filed a suit seeking a decree of permanent prohibitory injunction. It has been claimed that the plaintiff-respondents are co-sharers in the well and the suit land. The claim of the plaintiff-respondents, however, is that they may be permitted to install a bore in the well for cultivating their land. The prayer made by the plaintiff-respondents has been opposed tooth and nails by the defendant- appellants claiming that they are owners to the extent of 1/2 shares vide Registered Sale deed in their favour dated 5.1.1995 and 29.1.2001 whereas the plaintiff-respondents are entitled to 1/240th share. The learned Civil Judge after hearing the counsel for the parties, declined the application of the plaintiff-respondents for temporary injunction restraining defendant- petitioner from raising construction to use the joint well. The trial Court further found that well is not being used for long time.

(3.) I have heard Mr. Raman Sharma, learned counsel for the defendant- petitioners, who has argued that the total land in dispute is 13 Marlas and the share of the plaintiff-respondents on their own showing is 1/240th shares whereas the defendant-petitioners are entitled to 1/2 share. The learned counsel has also pointed out that the well is not in use as per the Jamabandi for the year 1996-97 and the main relief claimed in the suit is to restrain the defendant-petitioners from causing any obstruction in raising the constructions of a room over the said well. The same relief has been claimed in the application, which would amount to passing a decree in favour of the plaintiff-respondents. In support of his submissions, the learned counsel has placed reliance on a judgment of this Court in the case of Ram Niwas v. Jai Ram alias Tej Ram, (P&H) 2000(3) RCR(Civil) 738, and argued that the co- sharer can not be permitted by an interim order to change the nature of the property to such an extent that it may become difficult or impossible for a co-owner to get an effective partition.