JUDGMENT

Harsimran Singh Sethi, J. (Oral)

The present civil revision petition has been filed for setting-aside the judgment of the lower appellate court dated 19.10.2021 (Annexure P-1) by which, the order passed by the trial court allowing the application filed by the petitioner-plaintiff under Order 39, Rule 1 and 2 read with Section 151 CPC, has been set-aside.

2. As per the facts, which have come on record, the land in question is in joint ownership of three brothers, who are the parties to the present petition. The petitioner-plaintiff filed a suit seeking declaration and permanent injunction to the effect that the tube well, which is situated in the jointly owned land, be allowed to be used by the petitioner-plaintiff as well and the respondents-defendants be restrained from raising any obstruction for its use. In the reply filed, defendant No. 1 raised a claim that though the land is in joint ownership of the parties but separate portions are being cultivated by them and especially when the tube well in question is in the name of defendant No. 1 exclusively and the electricity charges are being paid by defendant No. 1 out of his own funds, no restraint order can be passed against defendant No. 1 so as to allow the petitioner-plaintiff to use the said tube well to irrigate the portion of the land, which is in his possession.

3. The application filed under Order 39, Rule 1 and 2 read with Section 151 CPC was decided by the trial court on 19.08.2021 and while deciding the said application, the trial court allowed the said application and held that as the property in question is in joint ownership of the parties concerned, the tube well though might be in the name of defendant No. 1, the petitioner-plaintiff will also be entitled to use the said tube well to 1/3rd share and will also share the charges of running and operating the said tube well.

4. Aggrieved against the said decision, the defendants filed an appeal before the lower appellate court and the lower appellate court vide order dated 19.10.2021 (Annexure P-1) held that as the tube well is in the exclusive name of defendant No. 1 and the running charges of the said tube well including electricity charges are being paid by defendant No. 1, the petitioner-plaintiff has no right to use the same even if the same is to be used on a land, which is jointly owned. The said order is under challenge in the present revision petition.

5. Learned counsel for the petitioner-plaintiff argues that once the land is jointly owned by the parties concerned and there are no partition proceedings going on as of now, the tube well, which is installed in the joint property, is for the usage of all the co-sharers and one co-share cannot be restrained from using the said tube well. Learned counsel relies upon the judgment of a Co-ordinate Bench of this Court in RSA No. 1213 of 2006 titled as Gopi Ram v. Shyam Sunder and others, decided on 03.04.2006.

6. Learned counsel for the respondents-defendants submits that once the tube well connection was installed on the asking of defendant No. 1 and all the charges of the running of the said tube well are being borne by defendant No. 1, even if the said tube well is in the joint land but the same is on a portion of a land, which is in the possession of defendant No. 1, the usage of the same cannot be claimed as a matter of right by the petitioner-plaintiff, hence the order passed by the lower appellate court dated 19.10.2021 (Annexure P-1) is perfectly valid and legal and is liable to be upheld. In order to support the contention, learned counsel for the responden