KESAR SINGH Vs. BALWINDER SINGH

JUDGEMENT

(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:

(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: