Mahanga Ram Vs. Gurdial Singh and ors. - Court Judgment |
.....there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - the courts below have recorded a concurrent finding that the defendant-appellant removed the persian wheel installed in the well about six-seven years back and instead installed the tubewell for irrigating his fields.orderg.c. garg, j.1. i have perused the judgments of the courts below and have heard learned counsel for the plaintiff-respondents. the courts below have recorded a concurrent finding that the defendant-appellant removed the persian wheel installed in the well about six-seven years back and instead installed the tubewell for irrigating his fields. the lower appellate court, however, declined the mandatory injunction directing the defendant to restore the persian wheel and only directed that the defendant shall allow the plaintiff - respondents the facility of drawing water from the tubewell on payment of rs. 20/- per hour for one day in a week. it is not disputed rather it is the conceded case that the persian wheel was common of the parties and it was so recorded in the revenue record. one of the co-sharers cannot deprive the right of irrigation to the other co-sharer by unauthorisedly removing the common facility for irrigating the fields. the appellate court in my view has rightly granted the relief to the plaintiff-respondents. no interference is called for. dismissed.
ORDER
G.C. Garg, J.
1. I have perused the judgments of the courts below and have heard learned counsel for the plaintiff-respondents. The courts below have recorded a concurrent finding that the defendant-appellant removed the persian wheel installed in the well about six-seven years back and instead installed the tubewell for irrigating his fields. The lower appellate court, however, declined the mandatory injunction directing the defendant to restore the persian wheel and only directed that the defendant shall allow the plaintiff - respondents the facility of drawing water from the tubewell on payment of Rs. 20/- per hour for one day in a week. It is not disputed rather it is the conceded case that the persian wheel was common of the parties and it was so recorded in the revenue record. One of the co-sharers cannot deprive the right of irrigation to the other co-sharer by unauthorisedly removing the common facility for irrigating the fields. The appellate court in my view has rightly granted the relief to the plaintiff-respondents. No interference is called for. Dismissed.