Magar Singh & Ors vs State Of Punjab & Ors on 24 February, 2009

[Cites 1, Cited by 0]

Punjab-Haryana High Court

Magar Singh & Ors vs State Of Punjab & Ors on 24 February, 2009

The present revision has been filed by the plaintiffs challenging the impugned orders dated 18.07.2008 and 03.05.2008 passed by District Judge Mansa and Civil Judge(Sr.Divn.)Mansa, respectively, whereby application of the petitioners for grant of ad interim injunction has been dismissed.

As per the averments made in this petition, a Gair Mumkin watercourse, bearing khasra No.433(2-13) and 432(3-9) which is the ownership of the Notified Area Committee, Bhikhi, runs through the land of the petitioners. The respondents/defendants in connivance with each other want to demolish the aforesaid watercourse and to dig a flood water drain in place of the watercourse, in order to cause harm to him so that he may not use the watercourse for irrigating his fields. Petitioners filed Civil Suit No.476 of 18.07.2008 for permanent injunction in the Court of Civil Judge (Sr.Divn.)Mansa, to restrain the respondents (defendants) from demolishing the aforesaid watercourse passing through his fields on the pretext of digging the drain. Along with the suit, petitioners filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Civil Procedure Code for ad interim injunction restraining the Civil Revision No.4460 of 2008 2 respondents from demolishing the watercourse existing in khasra No.433(2-13), 432(3-9),illegally.

Upon notice, defendants No.1 to 3 filed joint written statement raising various legal objections. On merits, it was admitted that the plaintiffs are the owners of the land and there is a watercourse in land bearing khasra No.432 and 433 which is the ownership of the Notified Area Committee, Bhikhi. It was further stated that the defendants have no concern or connection with the suit land. The alleged water channel is the ownership of Notified Area Committee, Bhikhi and the defendants No.1 to 3 have no intention to get the forcible dispossession of the plaintiffs or the actual owners. Thus, dismissal of the suit as well as application for ad interim injunction was prayed.

Civil Judge (Sr.Divn.)Mansa, dismissed the application filed by the petitioners for grant of ad interim injunction noticing the fact that the suit property belongs to Notified Area Committee, Bhikhi which is not arrayed as defendant in the suit and the defendants No.1 to 3 have no concern with the same. The appeal filed by the petitioners against this order was also dismissed by the District Judge, Mansa vide impugned order dated 18.07.2008.

While dismissing the appeal, the Lower Appellate Court observed as under:

"From the perusal of the record of this case, particularly the pleadings of defendant-respondents No. 1 to 3 and the record of the Drainage Department pertaining to the drain/water-course, in question, it is clear that this drain/watercourse was dug by the Drainage Department in the land of Notified Area Committee, Bhikhi, for the welfare of the general public to drain out the flood water. This drain was in existence since 2000, but plaintiffs have demolished the drain/watercourse, in question, and have amalgamated the land of the drain in their own land, as reported by the inhabitants of the area, vide application dated 21.05.2007. Resultantly, two Engineers of the Drainage Department, namely; Shri Surinder Kumar, J.E. and Shri Gurdeep Singh, J.E., inspected the spot and reported that plaintiff-appellants have demolished the Civil Revision No.4460 of 2008 3 drain and have encroached upon the land of the drain/watercourse to the extent of 500/600 feet. Resultantly, the Executive Engineer, Drainage Department, Mansa wrote letter dated 17.08.2007 to Executive Officer, Nagar Panchayat, Bhikhi, requesting him to get this land vacated from the present plaintiff-appellants. Thereafter, the Executive Engineer, Drainage Department Mansa, vide letter dated 16.07.2007, requested the Deputy Commissioner, Mansa to get this land vacated from the plaintiff-appellants so that the flood water of the area could be drained out. Resultantly, the District Magistrate-cum-Deputy Commissioner, Mansa, wrote letter to SSP, Mansa dated 31.03.2008, with copy to Executive Engineer, Drainage Department, Mansa and Executive Officer, Nagar Panchayat Bhikhi, requesting SSP, Mansa to get the aforesaid land vacated form plaintiff-appellant Maghar Singh. All this shows that plaintiff-appellant have not come to the Court with clean hands; rather they have played mischief with the entire inhabitants of the area, the Drainage Department as well as the general public. They have themselves demolished the drain and amalgamated the land of drain by demolishing and closing the drain. Plaintiff-appellants cannot be allowed to take advantage of their own wrong. As such, I am of the view that plaintiff-appellants are not entitled to the discretionary relief of injunction under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure. The learned lower Court has rightly dismissed the application filed by plaintiff- appellants under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure. I do not find any merit in this appeal and the same is hereby dismissed."

Thus noticing all the facts, the District Judge, Mansa found that the petitioners have not come to the Court with clean hands and they have played mischief with the entire inhabitants of the area and therefore they cannot take advantage of their own wrong.

Civil Revision No.4460 of 2008 4

Challenging the impugned orders, counsel for the petitioners has vehemently argued that from the pleadings of the parties, the intention of the respondents was clearly shown as they are threatening the petitioners to demolish the watercourse and to dig a flood water drain in that place. Since, there is an immediate threat from the respondents that they may demolish the watercourse of the petitioners, the petitioners were entitled to the grant of ad interim injunction as prayed.

On the other hand, learned Additional Advocate General,Punjab has argued that undisputedly the alleged watercourse exists in khasra No.432 and 433 which is the ownership of Notified Area Committee, Bhikhi and the respondents No.1 to 3 have no concern with the same. Learned counsel appearing on behalf of the State has also pointed out that Notified Area Committee, Bhikhi has not been arrayed as defendant/respondent by the petitioners, intentionally, and, therefore in the absence of the aforesaid Notified Area Committee, Bhikhi, no relief can be granted to the petitioners.

I have heard learned counsel for the parties. It is not disputed that the khasra numbers in which the alleged watercourse exists belong to Notified Area Committee, Bhikhi. While dismissing the appeal filed by the petitioners, the District Judge, Mansa has noticed that the alleged watercourse/drain was dug by the Drainage Department, Mansa for the welfare of the general public to drain out the flood water. This drain was in existence since many years but plaintiffs demolished the drain/watercourse in question and had amalgamated the land of the drain in their land. On the complaint of the inhabitants of the area two engineers of the Drainage Department inspected the spot and submitted a report that petitioners have demolished the drain and have encroached upon the land of the drain/watercourse and thereafter on their request the Deputy Commissioner, Mansa wrote letter to SSP Mansa on 31.03.2008 to get this land vacated from the petitioners so that the drain could be repaired and flood water of the area could be drained out.

Thus petitioners have not come to the Court with their hands clean and under the garb of this ad interim injunction wants to take advantage of their Civil Revision No.4460 of 2008 5 own wrong, which cannot be allowed. I find no reason to interfere in the well reasoned order of the Lower Appellate Court.

In view of the above, I find no merit in this revision petition and the same is dismissed.

(RAKESH KUMAR GARG) 24.02.2009 JUDGE neenu

Unlock Advanced Research with PRISMAI

Punjab-Haryana High Court