JUDGMENT :

Nidhi Gupta, J.

CM-1894-C-2013

Present application under Order 22 Rule 4 read with Section 151 CPC has been filed for impleading the Legal Representative of Kartar Singh (deceased), respondent No.2/defendant No.2.

At the very outset, it is submitted by learned counsel for the applicants/appellants that respondent/defendant No.2 namely Kartar Singh has expired on 20.01.2009. Accordingly, present application has been filed by appellants/plaintiffs for bringing on record the Legal Representatives of the respondent/defendant No.2.

Heard.

Needless to say, the appellants/plaintiffs cannot be appellant and defendant in their own case/cause. The appellants/plaintiffs cannot be granted a decree against their own self. Accordingly, the present application stands dismissed.

MAIN CASE

Present second appeal has been filed by the plaintiffs against the concurrent judgments and decrees of the learned Courts below whereby the suit filed by the appellants for permanent injunction, has been dismissed by both the Courts below.

2. Brief facts of the case as pleaded by the plaintiffs are that plaintiffs and defendants are co-sharers in the land situated in village Parjian Kalan. In Family Partition, the land measuring 23 kanal 2 marla comprised in Khasra No.35//18/1(7-2) and 19(8-0) came to the share of the plaintiffs. It was pleaded in the plaint that the electric tubewell connection No.D-3-432 in dispute is installed in Khasra No.35//25 and all the co-sharers are irrigating all their share from this motor connection. The parties had entered into an Agreement dated 22.07.1984 regarding the use of the motor connection as per which the plaintiffs were entitled to 2/5 share of the said motor connection. Since then, the plaintiffs are using the motor connection in dispute peacefully and irrigating their fields. However, now the defendants have started interfering in the peaceful and lawful use of the motor connection by the plaintiffs and had threatened to obstruct the plaintiffs from using the motor connection in dispute. As such, the present suit was filed on 26.06.2006.

3. Vide judgment and decree dated 09.03.2011, the learned Civil Judge (Junior Division), Nakodar had dismissed the suit of the plaintiffs with costs. The Civil Appeal filed by the plaintiffs on 15.04.2011 was dismissed by the learned Additional District Judge, Jalandhar vide judgment and decree dated 24.09.2012. Hence, present second appeal.

4. Learned counsel for the appellants submits that in non-suiting the appellants, the learned Courts below have ignored the fact that the plaintiffs have no source of irrigation to irrigate their land except the motor connection in dispute. It is contended that this electricity connection was installed from the joint funds of the plaintiffs and defendants; and the plaintiffs are regularly paying their share of electricity consumption bills of the connection. This fact has also been admitted by DW1 Rupinder Singh in his examination-in-chief/affidavit that defendant No.2 Kartar Singh (father of the plaintiffs and defendant No.1) had spent money from his own pocket in the installation of the tubewell connection in dispute. Admittedly, Kartar Singh has died on 20.01.2009 as is evident from his Death Certificate (Ex.P1). After the death of Kartar Singh, the plaintiffs had also inherited his property including Khasra No.35//25. However, these facts have been ignored by the learned Courts below.

5. It is further submitted that DW1/defendant No.1 Rupinder Singh has admitted in his cross-examination that 'I recognised my signatures on the Ex.P4. Except the motor connection in dispute there is no other motor connection in the land in dispute. The electric connection is 7.5 PH. The land has not yet been partitioned.'. But the Courts below have recorded the findings against the evidence produced by the plaintiffs/appellants and as such, the impugned judgment and decree passed by the Courts below are liable to be set aside.

6. Ld. Counsel argues that even the